Under Article 60 of the Constitution of the Republic of Belarus everyone shall be guaranteed 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 8 of the Universal Declaration of Human Rights everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. According to Article 10 of the specified Declaration everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

     Article 14 of the International Covenant on Civil and Political rights shall stipulate that in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

     The Constitutional Court in its decisions has repeatedly underlined that the right to judicial protection shall be referred to universally acknowledged principles of international law the supremacy of which the Republic of Belarus shall recognize and ensure that its laws comply with such principles, and Article 60 of the Constitution, which guarantees everyone the right to judicial protection, shall have direct nature of its effect.

     In accordance with the principle of presumption of innocence fixed in Article 26 of the Constitution no one shall be found guilty of a crime unless his guilt is proven under the procedure specified in law and established by the verdict of a court of law that has acquired legal force.

     In accordance with part one of Article 140 of the Criminal Code of Procedure of the Republic of Belarus (hereinafter - CCP), in the wording of the Law of 4 January 2003, the complaints against decisions on refusal in bringing the criminal case, on termination of preliminary investigation as regards the criminal case or criminal prosecution shall be lodged within the limitation period of calling to criminal liability.

     Part one of Article 29 of CCP shall envisage limitation period equally with other grounds for termination of the proceedings on the criminal case. According to part three of Article 29 of CCP termination of the proceedings on the criminal case under the specified ground shall be inadmissible, if the accused shall refuse thereof. In that instance the proceedings on the case shall be in progress in accordance with the usual procedure.

     According to part two of Article 254 of CCP renewal of the terminated preliminary investigation shall be admissible only before expiry of limitation period of calling of a person to criminal liability.

     The Constitutional Court emphasizes that the general approach of the law maker to specification of the terms in the criminal procedure, including also as regards judicial appealing against actions and decisions of the bodies of preliminary investigation, which is stipulated by the aims of securing adjustment of the criminal proceedings, shall be in line with Article 60 of the Constitution guaranteeing the right of everyone to judicial protection within time limits specified in law. Such an approach is fixed in a number of Articles of CCP (Articles 374, 406, 419, 427, 467 etc.). Article 161 of CCP shall also envisage the possibility of recovery of the term missed.

     The CCP, by allowing termination of the proceedings on the criminal case at the stage of preliminary investigation on non-rehabilitated grounds, in particular, due to expiry of the limitation period of calling to criminal liability, shall guarantee examination of the case in the court of law in instances, if the accused refuses against termination of the criminal proceedings under the specified ground, even though deviate to a certain extent from the principle of the presumption of innocence (part three of Article 29). At the same time, it is presupposed that the accused by giving his/her consent in that instance shall agree with the accusation and choose more acceptable way, which facilitates also the criminal process. Such consent according to the requirements of CCP (part three of Article 251) should be reflected in the ruling on termination of preliminary investigation or criminal prosecution.

     At the same time, the appeals to the Constitutional Court shall signify that in practice there are the instances, when the accused persons give their consent to termination of the preliminary investigation or the criminal prosecution under the specified ground by considering that adoption of the given decision shall exhaust in full their liability. Such a situation shall appear due to the fact that CCP stipulates no obligation of officials of the bodies of the criminal prosecution, which decide on termination of the proceedings on the criminal case owing to expiry of the limitation period, to explain the accused the legal nature of the ruling on termination of the proceedings on the criminal case and legal consequences of such a ruling. The Constitutional Court deems that CCP should fix this obligation in order for the accused persons to understand that the very fact of making such a decision does not mean finding them not guilty and that finally they may bear another kind of liability as a result of the committed offence (for example, civil, disciplinary).

     The Constitutional Court considers that in the specified instances the right of the accused to judicial protection shall be restricted by the provision of part one of Article 140 of CCP specifying the bounds for appealing by the limitation period of calling to criminal liability. After termination of the proceedings on the criminal case due to expiry of the limitation period, a person has no possibility to appeal to the court of law since this period expires, as a rule, before delivery of the ruling on termination of the proceedings on the case, when a person has no time to lodge a complaint.

     The Constitutional Court also considers that the very fact of giving his/her consent by the accused to the termination of the proceedings on the criminal case may not be the obstacle for realization of his/her right to judicial protection, since the subject to appeal may be other issues containing in the relevant ruling (for example, the fate of material evidence, qualification of a deed etc.). The essential guarantee of the rights of the accused persons in the specified instances may be stipulation in the law of the reasonable term during which they may have the possibility to lodge their complaints to the court of law.

     On the basis of the abovementioned and guiding by Article 40, part one 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 deem it necessary to fix in the Criminal Code of Procedure of the Republic of Belarus the obligation of officials of the bodies of criminal prosecution which decide on termination of the proceedings on the criminal case due to expiry of the limitation period of calling to criminal liability to give explanations for the accused of the legal nature and legal consequences of such a decision.

Setting in the law of the reasonable period of time during which the accused may have the possibility to appeal to the court with the complaint on the issues connected with termination of the proceedings on the criminal case due to expiry of the limitation period of calling to criminal liability will be conducive to more full protection of the rights of the specified persons.

2. To propose the National Assembly of the Republic of Belarus to make the relevant alterations and addenda into the Criminal Code of Procedure of the Republic of Belarus.

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

4. 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