11 March 2004 № J-171/2004
The Constitutional Court of the Republic of Belarus in composition of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V. Z. Shuklin
with participation of representatives:
of the House of Representatives of the National Assembly of the Republic of Belarus - I.A. Kibak, Deputy Head of Standing Committee of the House of Representatives of the National Assembly of the Republic of Belarus on national security; A.I. Nareijko, member of Standing Committee of the House of Representatives of the National Assembly of the Republic of Belarus on industry, fuel and energy complex, transport, communication service and enterprise; A.A. Domorad, Head of international law Sector of Main Expert and Legal Department of the Secretariat of the House of Representatives of the National Assembly of the Republic of Belarus;
Council of the Republic of the National Assembly of the Republic of Belarus - N.A. Karpovich, Head of Main Expert and Legal Department of the Secretariat of the Council of the Republic of the National Assembly of the Republic of Belarus
has examined in open court session the case "On the conformity between the Constitution of the Republic of Belarus, the international treaties of the Republic of Belarus and the provisions of the Criminal Code of the Republic of Belarus stipulating application of the death penalty as a punishment".
The court session was attended by:
P.P. Miklashevich - First Deputy Chairman of the Supreme Court of the Republic of Belarus; A.V. Ivanovsky - Deputy Procurator-General of the Republic of Belarus; A.S. Petrash - First Deputy Minister of Justice of the Republic of Belarus.
The proceedings have been brought by the Constitutional Court of 4 November 2003 as a result of the constitutional motion of the House of Representatives of the National Assembly of the Republic of Belarus on the grounds of Article 116 of the Constitution of the Republic of Belarus, Articles 5 and 6 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 43 of the Rules of Procedure of the Constitutional Court.
The House of Representatives of the National Assembly of the Republic of Belarus has proposed the Constitutional Court to produce the Judgment on the conformity between the Constitution of the Republic of Belarus, the international treaties of the Republic of Belarus and the provisions of the Criminal Code of the Republic of Belarus stipulating application of the death penalty as a punishment.
Having heard the Judge-speaker, Mrs. A.A. Sarkisova, representatives as parties, analyzed the provisions of the Constitution of the Republic of Belarus, international treaties of the Republic of Belarus, other international legal acts, norms of the Criminal Code of the Republic of Belarus (hereinafter referred to as the CC), as well as the practice of their application, estimated the positions of the state bodies and scientists, studied other materials, the Constitutional Court held the following.
Article 24 of the Constitution, adopted of 15 March 1994, shall enshrine that everyone shall have the right to life. The State shall protect the life of the individual against any illegal infringements. Until its abolition, the death sentence may be applied in accordance with the law as an exceptional penalty for especially grave crimes and only in accordance with the verdict of a court of law.
The specified norm of the Constitution has stipulated for the first time in the Republic of Belarus the inalienable right of everyone to life and the obligation of the State to secure the protection of the human life against any illegal infringements. For the purposes of securing the protection the human right to life the Constitution has assumed the application of the punishment as the death penalty, by making, at the same time, the specification on its exceptional and temporary nature.
Under part one of Article 8 of the Constitution the Republic of Belarus shall recognize the supremacy of the universally acknowledged principles of international law and that its laws comply with such principles.
Universal Declaration of Human Rights has proclaimed the right to life as the priority right of every person (Article 3). The right in question has been proclaimed and guaranteed by other international acts.
Article 6 of International Covenant on Civil and Political Rights ratified by the Republic of Belarus shall stipulate, in particular, that the right to life shall be the inherent right of every human being. This right shall be protected by law. No one shall be arbitrarily deprived of his life. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime (points 1, 2).
The Covenant shall establish that the death penalty should have exceptional character, its application is justified only by the most serious crimes, as well as with the restricted circle of persons with respect to whom this punishment may be applied. The Covenant shall also stipulate the aspiration of the States to the abolition of this punishment and second the development of their legislation in the specified direction.
International agreements, where the Republic of Belarus is a part, shall specify both the exceptional and temporary character of the death penalty, and that shall reflect the approaches towards estimation of this punishment, as well as signify about gradual aspiration of the state to progressive refusal from its application.
Adherence of the Republic of Belarus to the world-wide tendencies directed towards progressive refusal from the death penalty is observing during the process of development of the national criminal legislation.
Before the adoption in 1994 of the Constitution in the Republic of Belarus it was effective and found its developed the criminal legislation on the basis and in close interaction with the legislation of the former USSR. In addition, beginning from 1917 the death penalty has been abolished three times: in 1917, in 1920 and in 1947. However, every time later on after adoption of the acts on the abolition of the death penalty its application was subject to restoration, and under certain historical conditions that had been explained by the necessity to strengthen the prevention of extra dangerous crimes. According to the CC of the BSSR of 1928 this punishment had to be applied for the commitment of more than 60 types of crimes. The CC of 1960 had the significantly reduced the scope of crimes for which the death penalty could be prescribed, but still remained rather full. This punishment had been prescribed for the commission of more than 30 types of crimes (military included), as well as those of them with no intentional deprivation of the human life.
At the same time, both the CC of 1928 and the CC of 1960 stipulated the temporary character of the death penalty.
Beginning from the nineties of XX century the lawmaker, following the international tendencies, has taken the way of gradual narrowing of the scope of the application of the death penalty by excluding it, first of all, from the sanctions of the Articles of the CC envisaging liability for the crimes entailing no intentional infringement on the human life. Law of 23 April 1992 has altered the wording of Article 85 of the CC of 1960 envisaging the liability for the violation of the rules of currency transactions, and, at the same time, the punishment as the death penalty has been excluded from its sanction. Law of 6 July 1993 has excluded the death penalty from the sanctions of Articles 84, 911 and 169 of the CC, stipulating the liability for the manufacture, storage or sale of forged money or securities committed as a trade, grand theft of property, bribery-taking under extra aggravating circumstances.
Narrowing of the scope of the application of the death penalty has been carried out parallel to the extension of the circle of persons with respect to whom there could not been prescribed the punishment in question. In particular, according to the CC of 1960 before the adoption of the Law of 1 March 1994 the circle of those persons comprised of the persons under the age of eighteen, as well as the pregnant women at the moment of commitment of the crime, by the moment of delivery or execution of the sentence. In accordance with Article 22 of the CC in the wording of the given Law application of the death penalty had not been admissible generally with respect to the women.
The CC of the Republic of Belarus adopted of 9 July 1999 and enforced since 1 January 2001 the death penalty is stipulated as the exceptional punishment (Article 59). Moreover, the CC has reduced more than twice the scope of the application of the punishment in question in comparison with the CC of 1960. It shall be admissible only for the commitment of extra grave crimes with intentional taking of one's life under aggravating circumstances.
According to the CC, the death penalty may be prescribed for extra grave crimes against peace and security of mankind and war crimes: propaganda or waging of an aggressive war (part two of Article 122); murder of a representative of another state or international organization with the aim at provoking international complications or a war (part two of Article 124); international terrorism (Article 126); genocide (Article 127) and other crimes specified by Articles 128, 134, in part three of Article 135 of the CC. The CC shall also envisage the possibility of application of the death penalty for intentional unlawful taking of life of another - (homicide) under aggravating circumstances (of two or more persons; of a pre-adolescent, elderly or another person in a state of helplessness; of a woman known by the perpetrator to be pregnant and under other aggravating circumstances specified by part two of Article 139 of the CC). The possibility of prescribing of the death penalty is also specified in the CC for the terrorism connected with killing of a person or when committed by an organized group (part three of Article 289); high treason connected with a murder (part three of Article 356); seizure or retention of state power by unconstitutional way that entailed death of people or connected with murder (part three of Article 357); act of terrorism (359); act of sabotage committed by an organized group or entailing death of people or other grave consequences (part two of Article 360); killing of a militia officer in relation to the performance of his duties on protection of public order (Article 362).
Together with this there was some more extension of the circle of persons, with respect to whom the punishment in question may not be applied, by way of including into it the men of 65 at the date of delivery of the sentence.
Analysis of development of the criminal legislation of the Republic of Belarus regulating the application of the death penalty shall make it possible to conclude that it has the tendency towards decreasing of the use of the punishment in question with the prospects for its further abolition. The Constitutional Court notes, at the same time, that the effective CC specified no temporary character of the punishment as the death penalty, as it follows from part three of Article 24 of the Constitution and considers that Articleы 48 and 59 of the CC should stipulate it.
By giving estimation of Article 24 of the Constitution in the system with its other norms, as well as grounded on the international principles and approaches to the problem of the death penalty and taking into consideration the fact that from the moment of adoption of the Constitution there have been passed ten years, the Constitutional Court deems that while solving the issue on this punishment it is necessary to be guided by the following.
1. The Constitution has proclaimed the Republic of Belarus to be a democratic state ruled by law. Its Preamble reads that the People of the Republic of Belarus shall recognize themselves as full-fledged subject of the world community, confirm their adherence to values common to all mankind, desiring to maintain civic concord, stable foundations of government by the people and a state based on the rule of law.
Section I of the Constitution "Principles of the constitutional system" contains the based provisions specifying the nature and the essence of the State of the Republic of Belarus, on the basis thereof and in context therewith all the other norms of the Basic Law are formulated.
Article 2 of the Constitution shall enshrine that the individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State. The State shall bear responsibility towards the citizens to create the conditions for the free and dignified development of his identity.
Under Article 7 of the Constitution the Republic of Belarus shall be bound by the principle of supremacy of law.
The norms containing in other Sections of the Constitution, including those of them concerning human rights and freedoms, shall develop and concretize the fundamental provisions of Section I of the Basic Law: safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State. The state shall guarantee the rights and freedoms of the citizens of Belarus that are enshrined in the Constitution and the laws, and specified in the state's international obligations (Article 21); all shall be equal before the law and entitled without discrimination to equal protection of their rights and legitimate interests (Article 22); restriction of personal rights and freedoms shall be permitted only in the instances specified in law, in the interests of national security, public order, the protection of the morals and health of the population, as well as rights and freedoms of other persons (Article 23).
Human life shall be recognized in the civilized community as the most valuable benefit, the right which is inalienable and inherent, enjoyed by everyone from birth. While taking of one's life all his/her other inherent rights shall lose its sense, since the holder of them is dying. Therefore, the provision universally acknowledged and enshrined in a number of international documents and norms of the national legislation that everyone shall have the right to life, shall have universal character related to the issues on lawfulness of taking of one's life, including also by way of application of the death penalty as a criminal punishment.
2. The Constitutional Court deems that by giving estimation of the issue on the death penalty it is necessary to take into account the legal system of the State, its traditions and history, conditions under which the norms of laws were worded, their alteration, as well as the state of criminality at the present stage.
While adopting in 1994 of the Constitution of the Republic of Belarus the provision of Article 24 of the Constitution, which has stipulated the possibility of the application of the death penalty as the exceptional penalty, has been formulated under the approaches of those times, when the Criminal Code envisaged no such an exceptional penalty as life-long imprisonment which in its severity may act as a real alternative to the death penalty. At that time, deprivation of freedom for a term of up to 15 years has been stipulated as an alternative penalty to the exceptional penalty applying for the extra grave crimes, including also for the intentional killing under aggravating circumstances, as well as the maximum possible penalty, and that was clear disproportionate alternative to such a punishment as the death penalty.
During the years after the adoption of the Constitution in the Republic of Belarus there have been made fundamental reforming of the criminal legislation and, moreover, the process of its improvement has been carried out in the main towards humanization of the criminal liability, including in the direction of narrowing of the circle of the crimes the commitment of which specified the possibility of prescribing of the death penalty. The judicial practice has been also developed towards remission of the application of the death penalty.
The issue of the death penalty shall be directly connected with the possibilities of the state to ensure security of the society and human protection and, first of all, one's life against criminal infringements thereon. Everyone who is a citizen of a democratic state ruled by law shall have the right to rely on the guarantee of such a security. The criminal legislation for the ensuring of this task shall impose the strict liability for the extra grave crimes infringing upon the human life. Furthermore, the murder committed under aggravating circumstances, as well as other extra grave crimes connected with intentional taking of one's life shall presuppose the most strict penalties - deprivation of freedom for a term of up to 25 years, life-long imprisonment or the death penalty. Those penalties in their essence had to be the most important means for security of the society, first of all, the protection of the life of human beings. The threat of their application shall serve the securing of the purpose of common prevention, i.e. inadmissibility of commitment of the crimes on behalf of the citizens.
At the same time, in spite of the application of the penalties in question, in the Republic it takes place the increase of the criminal infringements on the human life. In comparison with 1994, when it has been registered 952 killings, including killing attempt, the number of those crimes in 2002 has been increased up to 23,7 per cent. But, practically, there is no preventive role of the death penalty, as well as interdependency of its application and the level of the killings. On the contrary, the increase of a number of killings under aggravating circumstances, when the law shall envisage the possibility of prescribing of the death penalty, has been related basically to the years when the penalty in question was subject to application in comparatively full scope. For example, during the period since 1994 till 1998 the number of persons sentenced to the death penalty has been increased (25, 37, 29, 46, 47 persons), but together with this there have been also the increase of the persons convicted for the killing committed under aggravating circumstances (278, 345, 411, 480, 517 persons). However, in spite of the fact that in 2002 - 4 persons were sentenced to the death penalty, in 2003 the number of registered in the Republic killings, including killing attempts as compared with 2002 had been remitted to 104 crimes.
Neither the practice no the scientific studies revealed dependence of the killings on the level of the use in the state of the death penalty, as well as specify the level of its effective deterrent. This fact shall also find its confirmation in other states, and that was for them as one of the sufficiently serious arguments in favour of the abolition of the death penalty. In its essence the death penalty may also not ensure the achievement of other aims of the criminal liability fixed in part two of Article 44 of the CC: correction of a person who has committed a crime and prevention of commitment of new crimes by him/her of new crimes.
The Constitutional Court shall pay attention to the fact that by solving the issue on the application of the death penalty there may not be excluded in full the miscarriage in finding a person to be guilty in commitment of the crimes for which he/she is sentencing to that penalty.
The Constitutional Court deems that for ensuring the security of the society, inadmissibility of repeated commission of the crimes on behalf of the persons who committed intentional infringements on life under aggravating circumstances the state shall have sufficiently effective criminal and legal remedies which make it possible to isolate the criminals out of the society and, thereby, to prevent the committment by them of new crimes. Those remedies of influence, in particular, on the killers in the Republic of Belarus, as well as in a number of other countries, shall be life-long imprisonment or deprivation of freedom for a term of up to 25 years. Just for those punishments and, first of all, deprivation of freedom for a long period of time the courts of law give preference while delivering the verdicts for the persons sentenced for the extra grave crimes connected with intentional taking of one's life under aggravating circumstances. In the structure of the punishments prescribing for the specified crimes, the density of deprivation of freedom is more than 90 per cent. For example, in 2001 it was 96 per cent, in 2002 - 95 per cent and in 2003 - 96 per cent. Life-long imprisonment in those years has been 2,3 per cent, 4,2 per cent, 2,6 cent of the total number of the persons convicted for the crimes in question. Meanwhile, the priority application by the courts of law of deprivation of freedom as a punitive measure with respect to the dangerous criminals infringing on the human life shall not put under threat the security of the society, ensuring the tasks of prevention of crime.
The Constitutional Court emphasizes that the enhancement of efficiency of the activities of the law enforcement bodies aimed also at optimal realization of the principle of inevitability of liability, increase of the level of disclosing of the crimes in question, ensuring the balance of the criminal policy with respect to the criminals infringing on the human life should promote the solution of the tasks of protection of the society against criminal infringements and, first of all, against intentional infringements on the human life.
3. The Constitutional Court shall take into account the fact that on the preservation of the death penalty in the criminal legislation of the Republic of Belarus there shall make its influence the results of the Referendum held of 24 November 1996, in the process of which 80,44 per cent of the citizens participated in the voting answered in the negative to the question: "Do You support the abolition of the death penalty in the Republic of Belarus?"
Referendum took place under the conditions when the CC stipulated as the alternative to the death penalty only the deprivation of freedom for the term of up to 15 years, i.e. the punishment which is obviously at variance with the nature and the level of social security of intentional killings committing under aggravating circumstances. Life-long imprisonment as the exceptional and alternative punishment to the death penalty has been introduced in the CC of the Republic of Belarus only in December 1997.
It should be emphasized that in many of European States, including in the CIS Member States, the decisions on abolition of the death penalty or on declaration of moratorium on its application have been adopted under the conditions when the public opinion on preservation of the punishment in question in the legislation, as a rule, predominated over the opinion on its abolition.
The Constitutional Court shall also pay attention to the fact, that the decision of the plebiscite held in 1996 as regards the specified issue had the compulsory nature. From the moment of the voting there have been passed more that seven years, i.e. the time period sufficient for the correction of the estimations connected with the application of the death penalty, its preservation or abolition.
The Constitutional Court shall take into account the circumstance that neither the abolition of the death penalty in general nor declaration of the moratorium on its application or execution carried out in other states and, first of all, in the states of the former USSR, the state and dynamics of criminality in which shall have no essential differences, caused no outbreak of the criminal situation and entailed no rise of killings. There has been also no aggravation of the criminal situation in the Republic of Belarus in 2000 - 2003, when application of the death penalty has been reduced to single instances. In addition, the level of convictions for the killings under aggravating circumstances in those years in comparison with the years when the death penalty has been applied in a rather big scope has been decreased.
4. Under Article 8 of the Constitution the Republic of Belarus shall recognize the supremacy of the universally acknowledged principles of international law and ensure that its laws comply with such principles. Due to that, the Republic of Belarus must take into account the tendencies and the processes connected with the abolition of the death penalty, which take place in world community or stay apart from those processes.
Preamble of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, adopted by the UN General Assembly Resolution of 15 December 1989 shall read that the State Parties to the Protocol has emphasized that the abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights. The State Parties are convinced that all measures of the abolition of the death penalty should be considered as progress in the enjoyment of the right to life. Article 1 of the Protocol shall specify that no one within the jurisdiction of a State Party to the present Protocol shall not be executed (point 1); each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction (point 2).
During several years the UN Commission on Human Rights has adopted regular its Resolutions in which it called upon the States to implement the moratorium on the death penalty for the purposes of its complete abolition.
In its Resolution 1998/8 adopted of 3 April 1998 the UN Commission on Human Rights has called upon all the countries, which preserve the death penalty "to establish a moratorium on executions with a view to completely abolition of the death penalty". The Republic of Belarus has also voted for the adoption of the given Resolution.
For the European region it is characteristic to have more intensive process connected with the abolition of the death penalty. It has been started from the moment of adoption of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the European Convention) signed in Rome of 4 November 1950 by ten Member States of the Council of Europe.
Article 2 of the specified Convention has proclaimed the following:
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is more than absolutely necessary:
a. in defense of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection.
Although the European Convention made no proclamation of the abolition of the death penalty, the processes in that direction had become to take place successively in the European States. Practice of those States, many of which factually stopped to apply this penalty, has become one of the incentives to adoption of Protocol No. 6 to the European Convention concerning the abolition of the death penalty, signed by the Member States of the Council of Europe of 28 April 1983 in Strasbourg, which proclaimed the abolition of the death penalty (Article 1). Preamble of the specified Protocol has specified directly that the evolution that occurred in several Member States of the Council of Europe expresses a general tendency in favour of the abolition of the death penalty. The given Protocol has not excluded the application of the death penalty in respect of acts committed in time of war or imminent threat of war (Article 2).
In its Recommendation No. 1246 (1994) the Parliamentary Assembly of the Council of Europe, adopted in 1994, has specified that the death penalty shall have no lawful place in penitentiary systems of modern civilized societies, and that its application may be compared with tortures and considers as inhumane and degrading punishment in the sense of Article 3 of the European Convention. That was confirmed again in Resolution No. 1253 (2001) adopted in 2001.
The Parliamentary Assembly of the Council of Europe has established the practice of making requirements on the States, which expressed their wish to become a Member of the Council of Europe, to implement moratorium on the application of death sentences, to exclude this penalty from the national legislation, to sign and to ratify Protocol No. 6 to the European Convention concerning the abolition of the death penalty.
According to Protocol No. 13 to the European Convention concerning the abolition of the death penalty in all circumstances, which has been signed by the Member States of the Council of Europe of 3 May 2002 in Vilnius, there have been proclaimed the complete abolition of the death penalty, including in respect of acts committed in time of war or of imminent threat of war. Preamble of the given Protocol shall read that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings. The complete abolition of this penalty in the Member States of the Council of Europe has been carried out for the purposes of strengthening of protection of the right to life guaranteed by the European Convention.
The Constitutional Court underlines that the absolute majority of the European States had in general not applied the death penalty over several decades. At present, 45 Member States of the Council of Europe had refused from application of this penalty. Progressive movement in that direction has been manifested particularly in the late XX and in the early XXI c. In 1999 Protocol No. 6 to the European Convention has been ratified, for example, by Bulgaria, Great Britain, Latvia, Lithuania. In 2000 the specified Protocol has been ratified by Albania, Georgia, Cyprus, Poland, Ukraine, in 2002 - Azerbaijan, Bosnia and Herzegovina. Protocol No. 6 has been signed in 2001 - by Armenia, in 2003 - by Serbia and Montenegro, Turkey. Republic of Kazakhstan is not a Member of the Council of Europe and declared moratorium on execution of the death penalty.
The tendency to the abolition of the death penalty or reduction of its application is also typical for the whole world community. Now, there are more than one hundred states and territories, which do not apply the death penalty.
Restriction of application of the penalty in question is revealing also in judicial practice of the Republic of Belarus, where the preference is giving increasingly to another exceptional punishment - long-life imprisonment. In 2002 from among 496 convicts for the killing under aggravating circumstances and for the killing of a militia officer (part two of Article 139 and Article 362 of the CC) 4 persons have been sentenced to the death penalty, and 21 persons - to life-long imprisonment. In 2003 from among 466 convicts for the specified crimes 4 persons have been sentenced to the death penalty, and 12 persons - to life-long imprisonment. The indicated data shall specify that the courts of law by enjoying the right to apply this type of punishment as the death penalty shall follow the way of maximum remission of the application of both the penalty in question and another exceptional punishment - life-long imprisonment, as well as making by this no conditions for aggravating criminal situation in the Republic.
The Constitutional Court notes that the development of the Republic of Belarus has been carried out parallel to the development of other States - Republics of the former USSR. Moreover, the level of criminality, its tendencies and preventive measures were similar to all the other States in question, including the Republic of Belarus. At present moment, many of those states (Azerbaijan, Armenia, Georgia, Latvia, Lithuania, Moldova, Russian Federation, Ukraine, Estonia) joined the Council of Europe, and that was conditioned by adoption by them of the decisions on the abolition of the death penalty or on declaration of moratorium on its application or execution. The experience of those States in solution of the problem of the death penalty shall be the important circumstance facilitating the adoption of the relevant decision by the Republic of Belarus.
The Constitutional Court shall also emphasize that the decisions on the abolition of the death penalty in the States in question have been adopted generally by their representative bodies or by the bodies of the constitutional control. In addition, European Constitutional Court had adopted the relevant decisions under the conditions, when their States have been admitted to the Council of Europe or the issue of their admittance to this organization has been predetermined. Due to that the European Convention and the Protocols thereto were binding for them.
The Constitutional Court points out that the Republic of Belarus, even as a non-Member State of the Council of Europe, in recent years followed successively the active position on restriction of the death penalty both on the legislative level and in practice, and that shall be in line with the requirements stipulated in the international acts. On points of fact, it has come nearer to the solution of the specified issue, and the joining of the Council of Europe and signing, first of all, the European Convention, Protocols No. 6 and No.13 thereto shall presuppose unconditional adoption of the decision on the abolition of the death penalty.
The Constitutional Court notes as a positive fact that of 13 June 2002 the House of Representatives of the National Assembly on the results of the Parliamentary hearings on the subject of "Political and legal problems of the abolition of the death penalty in the Republic of Belarus" there have been adopted the Recommendations (National register of legal acts of the Republic of Belarus, 2002, No. 70, 4/2960), which contain the proposals for the Council of Minister, the Ministry of Internal Affairs, the Ministry of Education, the Ministry of Justice, the Supreme Court, the Ministry of Information and the Institute of Social and Political Studies under the Administration of the President of the Republic of Belarus to carry out the measures which would promote the adoption of the decision on the issue on the death penalty. However, the majority of the recommended measures have not been fulfilled yet. The Constitutional Court also emphasizes that the state bodies (the Council of the Republic of the National Assembly, the State Secretariat of the Security Council, the Supreme Court, the Procurator's Office, the Ministry of Internal Affairs, the Ministry of Justice, the National Center of draft law activities under the President of the Republic of Belarus), the Republican Bar Association, as well as the majority of the representatives of scientific establishments and the higher educational institutions, which were forwarded thereto in the process of examination of the given case the requests with the proposal to state their position on the issue on the death penalty, made no expressions for the abolition of the penalty in question, including also the moratorium on its application and noted the conformity of the norms of the Criminal Code of the Republic of Belarus with the Constitution of the Republic of Belarus and international legal acts which are binding for the Republic of Belarus.
The Constitutional Court also underlines that over the last decade in the Republic of Belarus the dynamic of extra grave crimes connected with intentional infringement on the human life under aggravating circumstances is characterized by its increase. Only in 2002 - 2003 there have been outlined the tendency to their reduction, which should be secured by the efforts of the law enforcement bodies.
The Constitutional Court comes to the conclusion that the norm of part three of Article 24 of the Constitution, anticipating the abolition of the death penalty and establishing of some kind of transitional provision, when it may be applied temporary as an exceptional measure only for the extra grave crimes, shall presume the refusal of the state from the use of the penalty in question.
Based on the abovementioned and guided by Article 116 of the Constitution of the Republic of Belarus, Articles 5, 6, 9, 11, 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To find point 11 of part one of Article 48 and Article 59 of the Criminal Code of the Republic of Belarus to be at variance with the Constitution of the Republic of Belarus in part of absence in them of the specification of the temporary character of the death penalty.
2. To consider that part three of Article 24 of the Constitution of the Republic of Belarus, which has enshrined the possibility of application of the death penalty as the exceptional measure of punishment only until its abolition, shall permit to take the decision on declaration of moratorium on the application of the death penalty or complete abolition of the punishment in question.
Proceeding from the content of the given norm, dynamics of criminality, the necessity of fulfillment of the Recommendations of the House of Representatives of the National Assembly of the Republic of Belarus on the issue of the death penalty adopted by Resolution of the House of Representatives of 13 June 2002, as well as taking into account that the Second Optional Protocol to the International Covenant on Civil and Political Rights has not been ratified by the Republic of Belarus, there have not been solved the issue of its Full Membership in the Council of Europe, and due to that there have not been signed and ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the relevant Protocols thereto, and that would stipulate by force of Article 8 and 116 of the Constitution of the Republic of Belarus the supremacy of the specified international acts in the system of the national law, the Constitutional Court deems that under the present-day conditions the issue on the abolition of the given type of punishment or as a first step - on declaration of moratorium on its application may be solved by the Head of the State and by the Parliament.
3. To publish the present Judgment within the period of time specified by the legislation in newspapers "Zvyazda" and "Narodnaya gazeta", as well as in the National register of legal acts of the Republic of Belarus and in "Bulletin of the Constitutional Court of the Republic of Belarus".
4. The present Judgment shall come into legal force from the date of its proclamation, is final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the