The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.G. Tikovenko, V.Z. Shuklin, has examined on the grounds of Article 40 and part one of Article 116 of the Constitution of the Republic of Belarus application on the issue of failure of execution of decision of the court of law on recovery of injury caused to life or health of citizens due to liquidation of a legal entity which is bound to effect payments in compensation for the specified injury.

     Having analyzed the relevant provisions of the Constitution of the Republic of Belarus, the Civil Code of the Republic of Belarus (hereinafter is referred to as CC), the Law of the Republic of Belarus "On economic insolvency (bankruptcy)", Decree of the President of the Republic of Belarus of 30 July 2003 No. 18 "On obligatory insurance against industrial accidents and occupational diseases", other enforceable enactments, the Constitutional Court found the following.

     According to point 1 of Article 933 of CC the injury caused to an individual or to the property of a citizen, shall be subject to recovery in full by a person who caused the injury. The injury caused to the life or health of a citizen by meeting the obligations under the contract shall be recovered in accordance with the rules stipulated in Chapter 58 of CC, if the legislation or the contracts do not envisage more high scope of responsibility (Article 953 of CC).

     In case of causing to a citizen a severe injury or some other damages to health, the subject to recovery shall be the lost by victim wage (income) which he/she would have or definitely could have, as well as additional expenses as a result of health damaging (Article 954.1 of CC). Recovery of damage as a result of lowering the ability to work or death of a victim shall be carrying out by monthly payments (Article 961.1 of CC). Sums for recovery of additional expenses (Article 954.1 of CC) may be awarded for future within the time limits fixed on the grounds of conclusion of medical examination, as well as in case of necessity to make preliminary payment of the cost of the relevant services and property, including buying passes (vouchers), payment of journey, payment for special means of transportation (Article 961.2 of CC).

    In case of liquidation of a legal entity, which is called in the prescribed procedure to be responsible for the damage caused to the life or health, the relevant payments should be capitalized for further payment for the victim under the rules specified in the legislation (Article 962.2 of CC). The requirements of citizens, to whom the liquidating legal entity is responsible for the damage to life or health by way of capitalization of the relevant periodical payments, shall be subject to primarily satisfaction (Article 60.1.1 of CC).

    The procedure of capitalization of periodical payments, which should be made for recovery of the injury to health, in case of bankruptcy of a legal entity shall be stipulated by Article 145 of the Law "On economic insolvency "bankruptcy" (hereinafter is referred to as Law". Specification of the scope of requirements of the natural person to whom the debtor is responsible for the injury to life or health, shall be carried out by means of capitalization no less than for fifteen years of the relevant periodical payments fixed on the date of opening by the economic court of the liquidating procedure or imposition of the sanction, which should be paid for the given person before his seventy-year-old. If the age of a natural person is more than seventy, the term for capitalization of the relevant periodical payments shall be fifteen years (Article 145.1 of the Law).

     The effected sum of capitalizing periodical payments, the amount of which shall be determined in accordance with Article 145.1 of the Law shall terminate the relevant obligation of the debtor (Article 145.2 of CC).

    The right to claim from the debtor in the sum of capitalizing periodical payments in the presence of consent of a natural person shall be passed on to the Republic of Belarus. In that case the obligations of the debtor for the natural person as regards periodical payments shall be passed on to the Republic of Belarus and are fulfilling by the Republic of Belarus in accordance with the legislation of the Republic of Belarus under the procedure specified by the Council of Ministers of the Republic of Belarus (Article 145.3 of CC).

    According to Article 145 of the Law, capitalization of periodical payments shall be carried out by the debtor in all instances of causing injury to life or health: both while causing injury due to fulfillment by the natural persons of their labor duties and by causing damage with no relation to fulfillment of the labor disputes.

     As for the recovery of the damage caused as a result of industrial accidents and occupational diseases (i.e. related to fulfillment of labor duties), the procedure of capitalization of the relevant payments previously has been established by Resolution of the Council of Ministers of the Republic of Belarus of 4 November 1992 No. 664 "On approval of the Rules of accumulation of periodical payments of the enterprises under liquidation due to causing severe injury or some other damage to health or due to death of a worker while carrying out his/her labor duties", and at present - by Decree of the President of the Republic of Belarus of 30 July 2003 No. 18 "On obligatory insurance against industrial accidents and occupational diseases", by Resolution of the Council of Ministers of the Republic of Belarus of 10 October 2003 No. 1301 "On approval of Provision on procedure of making capitalizing periodical payments in Belarusian republican unitary insurance enterprise "Belgosstrakh" in case of liquidation (bankruptcy with liquidation) or termination of the activities of insurants under obligatory insurance against industrial accidents and occupational diseases".

     Thus, acts of legislation shall stipulate only the procedure of recovery of injury, related to industrial accidents and occupational diseases, and obligatory insurance of those instances shall be entrusted with Belarusian republican unitary insurance enterprise "Belgosstrakh". As for the procedure of recovery of the injury to life and health of a natural person to whom the injury has been caused not due to fulfillment of labor duties while transferring the right to claim of the natural person in the sum of capitalizing periodical payments from the debtor to the Republic of Belarus, there is no specification of the procedure in question.

     The Law "On economic insolvency (bankruptcy)" has been adopted of 18 July 2000 and published in the National register of legal acts of the Republic of Belarus of 11 August 2000. Article 260 of the Law shall charges the Council of Ministers within six months period of from the date of its official publication to:

     prepare and submit under the prescribed procedure to the House of Representatives of the National Assembly the proposals on bringing the legislative acts of the Republic of Belarus into line with the given Law;

     to submit to the President of the Republic of Belarus the drafts enforceable enactments for securing the enforcement of the given Law;

     to bring the acts of the Government into line with given Law;

     to adopt legal acts for securing realization of the Law;

     to take other measures which are necessary for realization of the Law.

    However, up till now there is no full determination of the procedure of realization of the specified by Article 145.3 of the Law right of citizens, who were caused health injury, to recovery of this injury.

    Due to that the Constitutional Court deems that in this particular case the is no full realization of Article 59 of the Constitution envisaging the obligation of the state bodies, officials to take within their competence the necessary measures for exercise and protection of individual rights and freedoms.

    Guiding by Article 40, part one of Article 116 of the Constitution of the Republic of Belarus, Articles 7, 36, 38, 40, 40¹ of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court

RULED:

1. To propose the Council of Ministers of the Republic of Belarus with a view to bridge the gap in legal regulation to determine the procedure of realization of the right of the natural person to recovery of the injury to life or health which do not related to fulfillment of labor duties under Article 145.3 of the Law of the Republic of Belarus "On economic insolvency "bankruptcy" and, moreover, to consider the issue on possible protection of property rights of persons who were injured after the enforcement of the given Law.

2. The present decision shall come into legal force from the date of adoption.

3. To publish the present Decision in accordance with the legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich