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, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, G.B. Shishko, V.Z. Shuklin, has examined on the grounds of Article 116 of the Constitution of the Republic of Belarus the repeated complaints of imprisoned convicts due to refusal by the courts of law to examine their appeals against incurred to them penalties, found the following.

     Imprisoned convicts in their complaints shall specify that the courts of law refuse to examine their appeals against incurred to them by administration of reformatories penalties and motivating this by the lack in the legislation of the norms regulating the procedure of taking and examination of the appeals in question.

     The Constitutional Court has delivered twice decisions with the confirmation of the constitutional right of the convicts to judicial appeal against incurred to them penalties. Irrespective of the fact, that the criminal legislation of procedure and the criminal legislation of executions contain no norms for the regulation of the procedure of taking and examination by the courts of law of the specified complaints of the convicts, the Civil Code of Procedure of the Republic of Belarus contains the whole chapter which shall envisage the procedure of appealing against the actions of officials infringing upon the rights of citizens.

     The courts of law are legally bound to examine those complaints by force of the requirements of the Constitution of the Republic of Belarus and with the object of its strictly observance. Under Article 60 of the Constitution 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. Article 137 of the Constitution shall fix its supreme legal force. Where there is a discrepancy between a law, decree or ordinance and the Constitution, the Constitution shall apply. Article 59 of the Constitution shall oblige the State to take all measures at its disposal to create the domestic and international order necessary for the exercise in full of the rights and liberties of the citizens of the Republic of Belarus that are specified in the Constitution. State bodies, officials and other persons who have been entrusted to exercise state functions shall take necessary measures to implement and safeguard the rights and liberties of the individual. Those bodies and persons shall be held responsible for actions violating the rights and liberties of an individual.

     According to Article 3 of the Criminal Code of Executions of the Republic of Belarus the criminal legislation of executions of the Republic of Belarus shall be based on the Constitution of the Republic of Belarus, on the universally acknowledged principles and norms of international law, international treaties of the Republic of Belarus which shall refer to execution of punishment and treatment with the convicts, and where there is a discrepancy between the criminal legislation of executions and international treaties the rules of an international treaty shall apply directly.

     The right to judicial protection is specified not only in the Constitution of the Republic of Belarus but also in international acts, including the International Covenant on Civil and Political Rights ratified by the Republic of Belarus (Article 3). Moreover, Article 10 of the Criminal Code of Executions of the Republic of Belarus shall stipulate directly the right of the convicts to male appeals both to the administration of the body or the establishment which execute punishment and other measures of the criminal liability, to the procurator's office, other bodies and the court of law.

     Article 6 of the Civil Code of Procedure of the Republic of Belarus, by fixing the right to appeal for judicial protection, establishes that an interested person shall have the right according to the prescribe procedure to make appeals to the court of law for the protection of the violated or contesting right or the interest safeguarded in the law. It is inadmissible to make refusal in judicial protection on the grounds of the absence, incompleteness, contradictoriness and indistinctness of an enforceable enactment.

     In many instances the imprisoned convicts right now are realizing their right to judicial protection on housing, hereditary, family and marriage issues. At the same time, non-securing for the convicts of the right to judicial verification of the incurred to them penalties may deprive of their right to application of amnesty, other types of remission of penalty or release from the penalty.

     Under point 5 of Decree of the President of the Republic of Belarus of 26 July 1999 No. 29 "On additional measures on improvement of labour relations, strengthening of labour and execution discipline" failure to observe the Constitution of the Republic of Belarus, decisions of the President of the Republic of Belarus, laws of the Republic of Belarus, resolutions of the Council of Ministers of the Republic of Belarus and rulings of the courts of law while carrying out official duties shall be deemed to be gross violation of labour duties.

     In its decisions on the specified issue the Constitutional Court has emphasized that failure to take by the courts of law of the appeals against incurring to them penalties shall mean failure to apply the Constitution (Articles 7, 8, 59, 112) and that the courts of law shall undertake responsibility for the violation of the rights of citizens enshrined in the Constitution. The Constitutional Court has also pointed out that the right to judicial appeal against the incurred penalties has been obtained by the convicts due to enforcing on 30 March 1994 the Constitution of the Republic of Belarus, as well as due to confirmation of direct nature of the effect of its norms by decision of the Constitutional Court of 2 April 2001. Realization of the right to judicial appealing which shall have the imprisoned convicts may not be geared to making alterations and addenda into the relevant acts of legislation, since the constitutional norm on the right of citizens to judicial protection shall have direct nature of its effect.

     Grounded on the abovestated and guided by Article 40, part one of Article 116, Article 137 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. According to legal position of the Constitutional Court stated in its Decisions of 2 April 2001 "On the right of imprisoned convicts to judicial appeal against incurred to them penalties" and of 15 July 2002 "On securing the constitutional right of imprisoned convicts to judicial appeal against incurred to them penalties" to confirm the constitutional right of imprisoned convicts to appeal to the court of law due to imposition on them of penalties by the administration of reformatories. The specified right shall be guaranteed by the instructions of Articles 59, 60, 137 of the Constitution of the Republic of Belarus, as well as by Decree of the of the President of the Republic of Belarus of 26 July 1999 No. 29 "On additional measures on improvement of labour relations, strengthening of labour and execution discipline".

2. While examining in the courts of law of the complaints of the convicts against application to them of penalties, to proceed from the fact that time limitation for appealing to the court of law shall not be subject to application with respect to those persons who were refused illegally in the settlement of their complaints.

3. To propose the specified persons in instance of failure to execute the norm of the Constitution which shall envisage their right to judicial protection to make addresses to the bodies of the procurator's office for the application of the procurator's measures and for the rehabilitation of the violated constitutional rights.

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