News
On 25 May 2016 the Constitutional Court of the Republic of Belarus took the Decision “On Legal Regulation of the Suspension of the Activities of Legal Entities and Individual Entrepreneurs” (reporting judge – Liliya Kozyreva)
The proceedings were initiated by the Constitutional Court in accordance with Articles 158.1 and 158.3 of the Law of the Republic of Belarus “On the Constitutional Proceedings” on theissue of legal regulation of the suspension of the activities of legal entities and individual entrepreneurs.
When considering the case the Constitutional Court proceeded from the following.
According to the Constitution the State shall grant equal rights to all to conduct economic and other activities, except for those prohibited by law, and guarantee equal protection and equal conditions for development of all forms of ownership; the State shall guarantee to all equal opportunities for free utilisation of abilities and property for entrepreneurial and other types of economic activities which are not prohibited by law; the State shall regulate economic activities in the interests of the individual and society (Articles 13.2, 13.4 and 13.5). It also follows from the constitutional provisions that the State shall take all available measures in order to ensure the human rights and freedoms, the legality and legal order, to regulate economic activities in the interests of the individual and society.
The rights of bodies of state authority to suspend the activities of legal entities and individual entrepreneurs are enshrined in a number of legislative acts that provide for the possibility of suspension (prohibition) of activities of economic entities, their departments (production divisions), equipment, production and (or) sale of goods (works, services), vehicle operation, transactions on the account because of wrongful acts and violation of the legislation involving the threat to national security, causing harm to the life and health of the population, the environment.
The factual grounds for bodies of state authority to make decisions within their competence to suspend the activities are wrongful acts related to the violation of certain legal provisions and, therefore, considered as offences, and the decisions, by their legal nature, have features of measures of administrative responsibility.
The suspension of activities results in limitation of rights of an organisation or an individual entrepreneur for a long period that affects the main content of their activities. In this case, this measure may be considered as an administrative penalty, since the purpose of its application is not only the termination of the threat, but also the prevention of new administrative offences by this subject and other persons.
However, the suspension of activities is not provided as a kind of administrative penalty in the Code on Administrative Offences.
The Constitutional Court in its decision noted that the measures in question, as measures of administrative restraint, shall be applied in the case of wrongful acts, in particular, administrative offences according to the special procedure in the course of law enforcement carried out by bodies of state authority.
According to the Constitutional Court, the absence of provisions on liability for violations of the legislation in the form of administrative suspension of activities as a measure of administrative punishment in the Code on Administrative Offences and the absence of such a measure in order to ensure the administrative process as the temporary prohibition of activities in the Procedural and Executive Code of the Republic of Belarus on Administrative Offences show the presence of legal uncertainty in the legal regulation of these relations that may lead to the violation of the rights of business entities.
In order to ensure the constitutional principles of the supremacy of law and legality, to exercise the constitutional right of everyone to judicial protection the Constitutional Court deems it necessary to eliminate legal uncertainty in the constitutional and legal regulation of the suspension of the activities of legal entities and individual entrepreneurs.
The Constitutional Court proposed to the Council of Ministers to prepare a draft law on making addenda and alterations to the Code of the Republic of Belarus on Administrative Offences, the Procedural and Executive Code of the Republic of Belarus on Administrative Offences and other legislative acts concerning legal regulation of the suspension of the activities of legal entities and individual entrepreneurs and to submit it to the House of Representatives of the National Assembly of the Republic of Belarus under the established procedure.