Part six of Article 104 of the Constitution of the Republic of Belarus shall enshrine that the law shall have no retrospective effect unless it extenuates or revokes the responsibility of citizens.

     Point 1 of Article 15 of the International Covenant on Civil and Political rights shall stipulate that if, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

     The Criminal Code of the Republic of Belarus (hereafter - CC) shall be based on the Constitution of the Republic of Belarus and universally acknowledged principles and norms of international law (part three of Article 1 of CC).

     According to part two of Article 9 of CC the law making an act not criminal, mitigating punishment or otherwise improving the position of a person who has committed a crime, shall operate retroactively, that is, shall apply to persons who committed a respective act before such law's coming into effect, including persons serving a sentence, or having served a sentence but having a conviction. After the law making an act not criminal has come into effect, the respective act committed before the law's coming into effect shall not be regarded as criminal. If a new criminal law mitigates punishability of the act for which the person serves the sentence, the court shall prescribe a punishment in accordance with the sanction of the new criminal law being guided by Article 62 of CC.

     Thus in accordance with Article 9 of CC the criminal law shall be considered to be more mild, if it lifts the criminal nature of an act, mitigates punishability of the act or otherwise improving the provision of a person who has committed a crime.

     According to Article 5 of the Law of 18 July 2000 "On enforcing the Criminal Code of the Republic of Belarus" the sentences, as a result of which the persons, who were convicted under the Criminal Code of the Republic of Belarus of 1960, did not served their sentences, are subject to revision in instances when the sentence made by the court is more severe than that fixed by the upper limit of the sanction of the relevant Article of CC.

     Under Article 16 of the specified Law "sentences, rulings or decisions of the courts are subject to revision in instances when the Criminal Code of the Republic of Belarus shall improve, otherwise than it is stipulated by the present Law, the position of persons who have committed crimes, including persons serving a sentence, or having served a sentence but having a conviction".

     Point 2 of Article 4 of the Law of 22 July 2003 "On making addenda and alterations into the Criminal Code and the Criminal Code of Procedure of the Republic of Belarus" shall envisage that "sentences under which the persons convicted have not been served their sentences are subject to revision in those instances where the court's sentence is more severe than that fixed by the upper limit of the sanction of the relevant Article of the Criminal Code of the Republic of Belarus in the wording of the present Law, as well as in instances when the norms of the present Law improve otherwise the position of persons who have committed crimes, including persons serving a sentence, or having served a sentence but having a conviction".

     The Constitutional Court emphasizes that in practice due to certain contradictions of Article 5 and 16 of the Law of 18 July 2000 and provisions of point 2 of Article 4 of the Law of 22 July 2003, as well as in view of absence in CC of the specification of the law mitigating criminal nature of the act, there is a limitation of application of retroactivity of the criminal law. Mitigation of punishability of the act shall be found only, if the previous sentence is more severe than that fixed by the upper limit of the sanction of the relevant Article of CC amended by the new law. This is just the direction of development of the judicial practice, which is based also on the explanations contained in recommendations of judicial collegium on criminal cases of the Supreme Court as regards revision of the sentences according to Article 9 of CC on the grounds of the provisions of the Law of the Republic of Belarus "On making addenda and alterations into the Criminal Code and the Criminal Code of Procedure of the Republic of Belarus". At the same time, the Constitutional Court underlines that those explanations are contained not in the Ruling of Plenum of the Supreme Court.

     In the same instances, where sanction of the relevant Article of CC has mitigated minimum limit of the punishment under the previously effective law, the sentences shall be subject to no revision. As to the specified instances, the courts shall also not apply the norms of part two of Article 9 of CC, in Article 16 of the Law of 18 July 2000 and in point 2 of Article 4 of the Law of 22 July 2003 under which retrospective effect shall also have the laws which otherwise improving the position of the persons who have committed crimes.

     There is also no revision of the sentences in instances, if the sanction of an Article of CC under which the person was convicted has been added by more mild punishment, as well as in other instances of alteration of the relevant sanction towards mitigation of criminal nature of the act (for example, if the punishment has been prescribed within the sanction of a new, more mild law, but the lower and upper limits of sanction in comparison with previously effective law under which the punishment has been prescribed).

     Based on the essence of the rule of retrospective effect of the law fixed both in the Constitution of the Republic of Belarus and instruments of international law, the Constitutional Court deems it necessary to be guided by this rule as applied to the criminal law in full and without any restrictions. Restrictions of the scope of its application shall entail in their turn violation of the principles of fairness and constitutional legality while prescribing penalty for guilty persons. It also leads to violation of the principle of equality of all before the law enshrined in Article 22 of the Constitution.

     By mitigating the minimum limit of the punishment stipulated for the crime or changing otherwise the sanction of an Article of CC towards mitigation of punishability of the act, the law maker in fact shall alter the evaluation of the nature and degree of social danger of the deed by granting the judges the possibility, guiding by general basis for prescription of the sentence which are fixed in Article 62 of CC, to choose a fair penalty relevant to the gravity of the crime committed. Refusal of revision of sentences in those instances shall exclude the possibility of objective, in accordance with the new law and on the basis of the principle of equity, evaluation of social danger of a crime and prescription of fair punishment for the guilty person.

     The Constitutional Court, on the grounds of legal principles of fairness and equity, as well as on the grounds of the provision of Article 16 of the Law of 18 July 2000 "On enforcing the Criminal Code of the Republic of Belarus" ordering the courts to revise the sentences, rulings or decisions in instances when CC, otherwise than it is envisaged by the Law in question, improves the position of persons who have committed crimes, considers that the rule of retrospective effect of more mild criminal law should cover all the instances of mitigation by the new law of the responsibility of the person who has committed the crime, including the instances of reducing minimum limit of punishment prescribed under the previously effective law or there is some other alteration of the sanction of the relevant Article of CC towards mitigation of punishability of an act.

     On the basis of the abovementioned and guiding by Article 40, part 1 of Article 116 of the Constitution, Articles 7, 36, 38, 40, 40¹ of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court

RULED:

1. To find that in accordance with the rule of retrospective effect of the criminal law in those instances when the new law has reduced the lower limit of punishment which has been previously prescribed for the person or when the sanction of the Article of the Criminal Code of the Republic of Belarus has been altered by some other way under which the person has been convicted, there are the grounds for revision of sentences with respect to the convicts serving sentences. Due to that and for the purposes of securing the constitutional principle of equality of all before the law and real giving the retroactive effect to the law mitigating liability of citizens to propose the National Assembly of the Republic of Belarus to give official interpretation of part two of Article 9 of the Criminal Code of the Republic of Belarus, part one of Article 5, Article 16 of the Law of the Republic of Belarus of 18 July 2000 "On enforcing the Criminal Code of the Republic of Belarus" and point 2 of Article 4 of the Law of the Republic of Belarus of 22 July 2003 "On making addenda and alterations into the Criminal Code and the Criminal Code of Procedure of the Republic of Belarus."

2. The present Decision shall come into legal force from the date of its 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