The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Judges T.S. Boiko, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, G.B. Shishko, V.Z. Shuklin, having examined on the grounds of part one of Article 116 of the Constitution of the Republic of Belarus the repeated appeals of convicts owing to impossibility of exercise by them of the right to appeal against sentences in the procedure of supervision due to the lack of money for payment of the national duty, found the following.

     Article 2 of the Law of the Republic of Belarus of 10 January 1992 "On national duty" (with further alterations and addenda) shall stipulate the objects liable to taxation and among them there are cassation and supervision complaints against court's rulings.

     The rates of national duty shall be fixed by the council of Ministers of the Republic of Belarus. According to sub-item 1.12 of point 1 of Addendum to Resolution of the Council of Ministers of the Republic of Belarus of 26 March 2003 No. 402 "On rates of national duty and granting additional privileges on its payment" (with alterations and addenda) the rate of national duty from supervision complaints (initial and repeated) against court's sentences, against rulings of the courts of law of first instance, cassation rulings and supervision rulings of higher courts on criminal cases shall be one base unit.

     In accordance with paragraph five of point 2 the point of the specified Ruling of the Council of Ministers of 26 March 2003 No. 402 the legal counsels shall be exempted from payment of national duty for filing to the courts of law and the Prosecutor's office of supervision complaints (initial and repeated) against court's sentences as regards conviction and acquittal. This rule shall not cover the convicts.

     In their appeals to the Constitutional Court the convicts who serve the sentence as confinement complain about the fact that because of lack of money they may not enjoy their right to protection, including the right to file the supervision complaint against the sentences passed with respect to them. One of the reasons of material modest means they specify impossibility of making provision for them with paid work in the conditions of reformatories.

     The Constitutional Court deems that the specified persons shall have the right to exemption from payment of national duty while filing by them of supervision complaints based on the following.

     Point 5 of Article 14 of the Covenant on Civil and Political Rights enshrines that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

     Article 60 of the Constitution of the Republic of Belarus shall guarantee everyone the protection of one's rights and liberties by a competent, independent and impartial court of law within time periods specified in law.

     According to Article 404 of the Criminal Code of Procedure of the Republic of Belarus (hereinafter - CCP) the sentence, ruling of the court of law that has come into legal force may be reviewed by way of supervision procedure. Article 408 of CCP shall grant the convict the right to appeal by way of supervision procedure on the grounds specified in Article 388 of CCP (unilateral and incomplete character of court's investigation; discrepancy between conclusions of the court stated in the sentence and factual circumstances of the case; a substantial violation of the criminal procedural law; incorrect application of the criminal law; discrepancy between the sentence prescribed by the court and the gravity of the crime and the personality of the convict).

     At the same time, the Constitutional Court emphasizes the importance of the supervision complaint as the guarantee for protection of the rights and interests of convicts, as well as the means of rectification of court's faults.

     Having studied the legal norms as regards setting of national duty while filing supervision complaints and exemption from its payment in the specified instances, the Constitutional Court considers that the legislation in this part is in line with the Constitution and does not prevent from realization of the right of convicts to judicial protection.

     According to Article 5 of the Law "On national duty" the right to grant additional privileges as regards payment of national duty shall be given the Council of Ministers of the Republic of Belarus. Moreover, this right is given oblast and Minsk city Council of deputies or on their behalf the executive and administrative bodies (as regards national duty entered local budget) for individual payers or for the group of payers, and region and city Councils of deputies or on their behalf the executive and administrative bodies - for individual payers. According to part three of Article 5 of the specified Law the courts of law (judges) shall have the right to grant additional privileges in part of payment of national duty as regards individual citizens, based on their property status.

     In the opinion of the Constitutional Court, the issues raised in appeals of the convicts shall be referred to a considerable extent to the problem of their practical settlement.

     The study of the practice has indicated that the convicts, who have no money to pay national duty while filing the supervision complaints, shall request the relevant bodies in the place of serving the sentence about their exemption from payment of the duty in question. According to information available for the Constitutional Court, the majority of the applications are giving satisfaction. Moreover, the reformatories has the system of rendering material aid through their social funds, which in the presence of the sound grounds and money resources shall also give aid the convicts, including for payment by them of national duty. Therefore, the persons, who were not objectively given the paid work, or persons of pension age with physical disability status or those suffering from different kinds of diseases shall have the right to apply to the bodies authorized to solve the issues on their exemption from payment of national duty for filing the complaint.

     On the grounds of the afore stated and guiding by Articles 40, part one of Article 116 of the Constitution, Articles 7, 36, 38, 40¹ of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court

RULED:

1. To emphasize that the Law of the Republic of Belarus of 10 January 1992 "On national duty" and Resolution of the Council of Ministers of the Republic of Belarus of 26 March 2003 No. 402 "On rates of national duty and granting additional privileges on its payment" as regards setting the national duty for filing the supervision complaint and determination of the right of convicts to appeal to the relevant bodies on the issue of exemption from its payment is not at variance with the Constitution and does not prevent from realization of the right of the convicts to lodge the complaints on revision of the enforced sentences.

2. To consider that fair settlement by competent state bodies of applications of the convicts on their exemption from payment of national duty for filing initial and repeated supervision complaints, taking into account objective reasons of their material modest means (non-enlisting them to paid work, pension age, disablement and illnesses) will further promote more full securing the right of convicts to make the complaints on revision of the sentences passed with respect to them.

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

Presiding Officer —