The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, Judges T.S. Boiko, K.I. Kenik, V.V. Podgrusha, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin has examined on the grounds of Article 40 of the Constitution of the Republic of Belarus the appeal on verification of constitutionality of provisions on payment of the national duty for filing of cassation and supervision complaints against judicial rulings under the suits on alimony recovery.

     Having studied the relevant provisions of the Constitution of the Republic of Belarus, the Civil Code of Procedure of the Republic of Belarus, the Law of the Republic of Belarus "On national duty" and other enforceable enactments, the Constitutional Court found the following.

     The Law "On national duty" (hereinafter - the Law) shall stipulate recovery of the national duty, in particular, from the statements of claims and appeals filing to the courts of law from cassation and supervision complaints against judicial rulings; from supervision complaints against judicial rulings filing to the bodies of the Procurator's Office (Article 2). The rates of the national duty shall be fixed by the Council of Ministers of the Republic of Belarus (Article 3).

     According to Article 4 of the Law stipulating privileges on payment of the national duty the demandants under the suits on alimony recovery shall be exempted from payment of the national duty in judicial institutions. According to part one of Article 142 of the Civil Code of Procedure of the Republic of Belarus (hereinafter - CCP) the national duty shall be recovered from the defendant in proportion to the satisfied portion of lawsuits.

     In practice the demandants under the suits on alimony recovery shall be also exempted from payment of the national duty while filing cassation and supervision appeals against judicial rulings under the given suits into the higher judicial instances.

     The Constitutional Court emphasizes that as regards supervision complaints against judicial rulings under the suits on alimony recovery filing to the bodies of the Procurator's Office the specified privilege is not stipulated by the Law.

     The rate of the national duty from the applications and complaints filing to the court of law and to the bodies of the Procurator's Office have been fixed by Resolution of the Council of Ministers of 26 March 2003 No. 402 "On the rates of the national duty and granting additional privileges on its payment" (hereinafter - Resolution of the Council of Ministers No. 402). Resolution of the Council of Ministers No. 402 shall contain no rates of the national duty collected from the defendant in accordance with the ruling of the court of law under the suit on alimony recovery, as well as for filing of cassation and supervision complaints against the specified decisions of the courts of law.

     Due to that Plenum of the Supreme Court of the Republic of Belarus in points 16, 18, 19 of its Ruling of 15 September 1994 No. 8 "On practice of recovery of legal costs under the civil cases and sue charges on criminal cases" (with alterations and addenda made by Rulings of 29 March 2001 No. 4 and of 26 September 2002 No. 8) (hereinafter - Ruling of Plenum) has explained that in accordance with point 1 of part one of Article 120 of CCP the duty under all the suits on alimony recovery irrespective of their assignment (for maintenance of children, parents, spouses etc.) shall be calculated from aggregate amount of payments of alimony, and, if the time period for alimony recovery is more than 12 months, then the duty shall be calculated from the amount of payments during 12 months. By taking the refusal of the demandant from the suit on the alimony recovery and termination of the proceedings on the case, there shall be no recovery of the duty from the defendant for the state revenue. Under the suits on exemption from payment of alimony liability, their reduction and increase the amount of the national duty shall be specified on the basis of the sum to which the payments are reducing, increasing or terminating, but no more than during the period of one year.

     Similar norms are containing in points 10, 12 of Chapter 3 "Procedure of collection of the duty from the statements and complaints filing to the court of law, and for the issue by the court of law of the copies of the documents" of the Instruction on the procedure of calculation, collection and inclusion of the national duty into the budget, approved by Resolution of the State Tax Committee of the Republic of Belarus of 26 May 2000 No. 47 (with alterations and addenda made by Resolution of 28 May 2001 No. 75).

     Thus in practice of activities of the courts of law the calculation of the national duty for filing by the defendants of cassation and supervision complaints against judicial rulings under the suits on alimony recovery shall be carried out on the grounds of sub-item 1.10 and 1.11 of point 1 of the addendum to the Resolution of the Council of Ministers proceeding from the rate set for the lawsuits' requirements of the property nature.

     Sub-item 2.1 of point 2 of the addendum to the Resolution of the Council of Ministers No. 402 shall envisage that the national duty from supervisory complaints (initial and repeated) against decisions and rulings of the courts of law on approval of amicable settlements, as well as from the complaints against cassation and supervision rulings of the higher courts of law filing to the bodies of the Procurator's Office shall be collected at the rates set for the supervision complaints filing to the courts of common law. At the same time, as it follows from the answer of the Procurator's Office of the Republic of Belarus of 30 May 2003 No. 8/118-2003 to the request of the applicant, the bodies of the Procurator's Office while taking supervision complaints against judicial rulings under the suits of alimony recovery require to pay the national duty proceeding from 50 per cent of the rate set in 5 base units set by sub-item 1.7 of point 1 of addendum to the Resolution of the Council of Ministers No.402. The sub-item in question shall set the rate of the national duty collected from the statements of claims of non-property nature.

     The Constitutional Court underlines difference in practice of application of the legislation on the national duty by the courts of law and the bodies of the Procurator's Office. Thus the courts of common law shall raise the requirements on payment of the national duty for filing cassation and supervision complaints against judicial rulings under alimony recovery only to the defendants under those suits; demandants shall be exempted from payment of the specified national duty. The bodies of the Procurator's Office shall take to examination the supervision complaints of both defendants and demandants against judicial rulings under the indicated category of cases on condition that they pay the national duty. The courts of common law proceed from the necessity of calculation of the national duty under the suits on alimony recovery on the basis of the rate set for the statements of property nature, and the bodies of the Procurator's Office, while taking supervision complaints, against judicial rulings - on the basis of the rate set for the statements of non-property nature.

     The Constitutional Court deems that the indicated differences are not stipulated by the legislation.

     Guiding by Articles 40, 116 of the Constitution of the Republic of Belarus, Articles 7, 36, 38, 40¹ of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court

RULED:

1. To find that in practice of application of the legislation on the national duty by the courts of law and by the bodies of the Procurator's Office there are the differences which are not stipulated by the legislation.

2. To propose the House of Representatives of the National Assembly of the Republic of Belarus to consider the issue on making into the Law of the Republic of Belarus "On national duty" alterations and addenda establishing equal conditions of payment (or exemption from payment) of the national duty while appealing against judicial rulings under suits on alimony recovery both to the higher judicial instances and to the bodies of the Procurator's Office.

3. To propose the Council of Ministers of the Republic of Belarus:

to set the rates of the national duty recovering by the courts of law from the defendants on the results of examination of the suits on alimony recovery and which shall be paid for making cassation and supervision complaints against judicial rulings under the specified suits to the higher judicial instances and supervision complaints - to the bodies of the Procurator's Office;

before consideration by the National Assembly of the Republic of Belarus of the issue on making into the Law "On national duty" of the specified alterations and addenda on the grounds of Article 5 of the Law in question to consider the issue on exemption of the demandants under the suits on alimony recovery from payment of the national duty for filing cassation and for filing of appeals against judicial rulings under the given suits to the higher judicial instances and making supervision complaints under the specified suits to the bodies of the Procurator's Office.

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

5. 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