To President
of Republic of Belarus
To House of Representatives
of National Assembly
of Republic of Belarus
To Council of Republic
of National Assembly
of Republic of Belarus
MESSAGE OF CONSTITUTIONAL COURT OF REPUBLIC OF BELARUS
ON CONSTITUTIONAL LEGALITY IN REPUBLIC OF BELARUS, 2002
Constitution of the Republic of Belarus shall enshrine a new quality level of relations between an individual and the State, democratic model of European State system - social State governed by the rule of law which is called to secure for everyone free and dignified development. Respect and observance of the Constitution, human rights shall become now the important criterion of international and internal evaluation of the activities of the bodies of State power. Creation of socially oriented market economy in our State shall presuppose further improvement of the legislation taking into account the norms of international law and maximum use of general law principles and norms stipulated by the Constitution.
Constitutional potential may be revealed more fully in all the spheres of vital functions of society and the State in the condition of securing the supremacy of the norms of the Constitution irrespective of the fact to what extent those norms are to be realized in the acts of the effective legislation, regardless of their direct effect in law making and law applying practice and of binding nature of the constitutional requirements for all natural and legal persons, as well as for the State in its bodies and officials.
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The Constitutional Court in 2002 has adopted 40 Decisions which solved concrete law collisions and that was promotive for the affirmation in the Republic of Belarus of constitutional legality, development of a democratic, social State ruled by law. At the same time, the Constitutional Court has been guided by the fact that under Article 116.1 of the Constitution the Court is entrusted with control over the constitutionality of enforceable enactments in the State. In its Decisions the Constitutional Court has affirmed in law making and in law applying activities the supremacy of the principles and the norms of a democratic, social State ruled by law which are stipulated in the Constitution and in the international legal acts.
The constitutional principle of separation of powers and interaction of powers (Article 6 of the Constitution) shall mean that State bodies are independent and shall carry out their activities within the granted them competence. Exceeding of competence by a State body while adopting enforceable legal acts shall signify deviation from the specified principle and in practice shall give rise unconstitutional law applying practice.
Thus, in accordance with the principle of separation of powers only the lawmaker shall have the right to determine the content of the norms of a criminal law. According to Article 3 of the Criminal Code the criminal nature of a deed, its punishability and other penal consequences shall be specified by the Criminal Code only, the norms of the Criminal Code are subject to strict interpretation by the lawmaker.
By adopting of 12 November 2002 Decision on specification of the notion "income" for the purposes of qualification of unlawful entrepreneur activities while calling to criminal liability, the Constitutional Court has found that the lawmaker made no specification of the composition of the income and the procedure of its calculation as regards Article 233 of the Criminal Code. Explanation of the notion income from unlawful entrepreneur activities has been given by Plenum of the Supreme Court in its Ruling of 28 June 2001 No. 6 (point 6). Guiding by the provisions of the Constitution (Articles 97 and 98) and the Law "On enforceable legal acts of the Republic of Belarus" (Articles 70 and 72) and based on the fact that the Criminal Code shall be the only law for regulation of the issues of criminal liability, the Constitutional Court has proposed the National Assembly to define the notion in question directly in the Criminal Code. The relevant addenda to the Criminal Code have been made by the Law of 4 January 2003 "On making alterations and addenda into certain legislative acts of the Republic of Belarus".
In spite of distinct differentiation in the Constitution and in the Law "On local government and self-government in the Republic of Belarus" of the powers of local representative and executive bodies, in practice there are instances of adoption of enforceable legal acts by executive committees on the issues which are within the exclusive competence of local Councils of deputies. The Constitutional Court emphasizes here that the most frequent substitution of powers takes place while setting of local taxes and dues.
The Constitutional Court has paid attention to the given situation in its Decisions of 10 April 2002 "On setting of fixed sums of income tax while renting out living accommodation in the city of Minsk", of 9 October 2002 "On constitutionality of point 23 of Decision of Minsk city Council of deputies of 11 January 2002 No. 219 "On budget of the city of Minsk, 2002" and other issues connected with the real-estate tax". In its Decision of 9 October 2002 "On constitutionality of setting of local due from natural persons while crossing by them of the boarder of the Republic of Belarus through control crossing points" the Court has also pointed out unconstitutionality of delegation of the exclusive competence of Brest region Council of deputies on setting of local due to Brest region executive committee.
On the grounds of Decisions of the Constitutional Court the acts of local representative and executive bodies have been brought into line with the Constitution and that shall signify about proper attitude towards Decisions of the Constitutional Court and striving to timely elimination from the violations which took place. That is an indicator of forming by officials and deputies of local Councils of law consciousness of today.
By verifying the constitutionality of the enforceable legal acts, the Constitutional Court has been also guided by such a constitutional principle of the State ruled by law as the principle of proportion of restriction of individual rights and freedoms to the values safeguarding by the Constitution.
Thus, having considered on the initiative of the House of Representatives the case on the conformity between the Constitution and normative requirements regulating the procedure of exit and enter of the Republic of Belarus by the citizens, the Constitutional Court has found that the obligatory nature for the note in passport for exit the country for all the citizens the absolute majority of whom have no restrictions for exit shall belittle their rights and is not in proportion to the values safeguarding by the Constitution (Articles 23, 30 etc.). At the same time, by fixing the term for the realization of its Judgment of 27 September 2002, the Constitutional Court has taken into account the fact, that for the creation of such a system of accounting the application of which shall make it possible to use all-citizens' passport as a document for exit the Republic of Belarus without making the note in the passport, it is necessary to have time and material resources. Due to proposals on introduction of foreign passports, which are expressing after adoption of Judgment of 27 September 2002, the Constitutional Court deems that the issue of foreign passports equally with all-citizens' passports is reasonable for certain categories of persons, in particular, for those who frequently leaving for beyond the boarders of the Republic of Belarus or at the will of the citizens.
The Constitutional Court has also examined the issues of restriction of the right of citizens on disposal of owned by them living accommodation in detached cantonments. Those issues are subject to be solved with the requirements of Article 23 of the Constitution taken into account which shall allow restriction of individual rights and freedoms only in the instances specified in law and for the achievements of the purposes specified in the given Article. In that connection the Constitutional Court has proposed the Government to take measures for proper regulation of the relations concerning the ownership to living accommodation in detached cantonments for the protection of the interests of the State and the citizens.
Judgment of the Constitutional Court of 7 February 2002, delivered as a result of the constitutional motion of the House of Representatives, has been directed to the securing of the principle of granting equal economic possibilities for the economic entities of different forms of ownership, which has not been kept while adopting certain enforceable legal act. Instruction on the procedure of forming rent rates by legal entities of non-governmental form of ownership while renting non-residential buildings (premises) approved by the Ministry of Economy was found to be unconstitutional since it had envisaged unequal conditions for carrying out economic activities by economic entities of private form of ownership in comparison with economic entities of State form of ownership. The given Judgment of the Constitutional Court has been executed.
Decision of the Constitutional Court of 23 May 2002 concerning licensing for opening chemist's establishments has been also directed to realization of the specified above principle. On the grounds of the given Decision the Ministry of Public Health has made promptly the relevant alterations in the procedure of opening chemist's establishments and that shall signify about aspiration to assertion in practice of the constitutional norms.
Verification of the constitutionality of Resolution of the Council of Ministers of 14 December 2001 No. 1804 has been promotive for assertion of the principle of social partnership. Having pointed out incompleteness of the mechanism of payment of membership fees which is envisaged in the Resolution, the Constitutional Court for the purposes of development of social partnership and harmonisation of labour relations in its Decision of 20 March 2002 has proposed the Government to improve the legislation as regards the procedure of transfer by employers of trade union fees under specification of an employee. The Council of Ministers in Resolution of 18 September 2002 No. 1282 has envisaged the possibility of deduction of the sums of monies, including trade union fees, from wages on the grounds of written statement of an employee cashless and that was the reason for the disputes raised previously.
The important place in law creating activities shall have the principle of sufficiency and completeness of legal regulation of social relations. Despite this principle enforceable legal acts often contain gaps, contradictions, indistinct wordings, especially as regards legal responsibility. At the same time, there are also instances of unnecessary regimentation of social relations in enforceable legal acts.
The Constitutional Court, in particular, has examined the issue on admissibility of conclusion by natural persons of foreign currency loan contracts and came to the conclusion on the possibility of conclusion of foreign currency loan contracts by the citizens of the Republic of Belarus with non-residents without drawing up in the National Bank of a separate permission to carry out a currency operation. The competent bodies were proposed to study the possibility of improvement of the legislation on currency regulation, including while concluding by the citizens of foreign currency loan contracts and that shall exclude multivalued understanding of the specified norms in practice, as well as shall improve more full protection of property interests of the citizens.
Incompleteness and contradictoriness of legal regulation has been found by the Constitutional Court also as regards the mechanism of evaluation of the cost of the plots of land in case of their succession. The legislation and law applying practice revealed significant contradictions which lead to the infringements upon the rights of the persons who are owners of the land. Solution of the given issues shall be within the competence of the Government and, therefore, the Constitutional Court has proposed the Council of Ministers to give the single notion of the land value and to fix the procedure of its specification in instances of arising of the relevant law relations. In fulfilment of Decision of the Constitutional Court the Government has adopted Resolution of 17 December 2001 No. 1764 which has approved the Provision of the procedure of evaluation, revaluation of the land, the plots of land.
The principle of the constitutionality (legality) shall form the basis of local government and self-government. Under Article 7 of the Constitution the State, all the bodies and officials thereof shall operate within the confines of the Constitution and the laws enacted in accordance therewith. Law creating activities of the State bodies may not be at variance with the requirement specified in Articles 7 and 9 of the Law "On enforceable legal acts of the Republic of Belarus" on adoption (issue) of an enforceable legal act by the authorized thereto State body within its competence.
Minsk city executive committee in its Decisions of 28 December 2000 No. 1566, of 30 March 2001 No. 374, of 24 September 2001 No. 1329, of 22 December 2001 No. 1748 has suspended taking documents for indexation of cheques "Zhiljo" made as a present, inherited and acquired under prescribed procedure disregarding the time of needs of citizens in the improvement of housing conditions. Minsk city executive committee, based on the deficiency of financial resources for indexation of housing quotas which are not envisaged for those purposes by the Parliament and by the Government, has practically stopped the effect of part one of Article 21 of the Law "On privatization of housing stock in the Republic of Belarus" and of part one of point 4 of the Provision on indexation of housing quota (sums of quotas) approved by Resolution of the Council of Ministers of 21 September 2001 No. 1399. As a positive factor for the solution of the given problem the Constitutional Court emphasizes that the Law "On budget of the Republic of Belarus, 2003" specifies the means for indexation of housing quotas calculated directly for the citizens, members of their families who are in need of improvement of their housing conditions, as well as those inherited or made as a present by near relatives.
In 2002 the Constitutional Court has pursued consistently the previously launched line on securing the constitutional right of everyone to access to justice which in the international law is considered to be an inalienable and shall be the most important characteristic of any State pretended to have the status of a democratic State governed by the rule of law. As a result of numerous complaints as regards violations of the specified right the Constitutional Court was bound to adopt repeatedly the relevant Decisions directed to the confirmation of the right of everyone to judicial protection, as well as to explain the officials of the bodies of judicial power that the norm of Article 60.1 of the Constitution shall be the norm of direct effect and in pursuance of Article 137 of the Constitution shall also have supremacy both in instance of discrepancy (contradiction) between the Constitution and by-constitutional acts and in instance of absence of the relevant norms on the procedure of realization of this right in the current legislation.
In particular, in spite of the fact that in 2001 the Constitutional Court has adopted Decision "On the right of imprisoned convicts to judicial appeal against incurred to them penalties", in 2002 the Constitutional Court has turned twice to consideration of the specified question and adopted Decision of 15 July 2002 "On securing the constitutional right of imprisoned convicts to judicial appeal against incurred to them penalties" and Decision of 24 December 2002 "On constitutional guarantees of the right of imprisoned convicts to judicial appeal against incurred to them penalties". The given Decisions underlined once again that the convicts have been granted the right to judicial appeal against incurred to them penalties since 30 March 1994, i.e. from the date of coming into legal force of the Constitution of the Republic of Belarus and, that on the grounds of Article 137 of the Constitution the realization of the right in question may not be dependent on its securing in by-constitutional acts. Non-acceptance by the courts of law of the complaints of the convicts against incurred to them penalties shall mean failure to observe the norms of the Constitution and the courts of law in those instances undertake responsibility for the violation of the constitutional rights of citizens.
Decision of 15 January 2002 "On pay of State tax by persons who appeal judicially against refusal of registration of application on recognition to be refugees or refusal of recognition to be refugees" has been also directed to securing access to justice. Under the Constitution and in accordance with the international obligations of the Republic of Belarus the State should grant each refugee the right to access freely to the court of law because of impossibility to pay the tax. At the same time, the rate of the State tax specified in the legislation made no possibility for those persons to pay the tax and, therefore, to realize their right to access to justice. The Constitutional Court emphasizes that the Council of Ministers on the grounds of the specified Decision of the Court in its Resolution of 8 April 2002 No. 433 has reduced essentially the rate of the State tax for the refugees on certain categories of cases while their applying for judicial protection.
The most important principles, by which the Constitutional Court has been guided in its activities, are the constitutional principles of equality of all before the law and the principle of equity. Based on those principles the Constitutional Court has examined several times the issues connected with application of amnesty with respect to the persons who committed crimes. Decision of 11 January 2002 has found that the persons, with respect to whom delivered verdicts were effective on the day of entering into legal force of the law on amnesty, shall have the right to amnesty also in instances when later on there is an inspection of those verdicts in the procedure of supervision.
Based on the principle of equality of all before the law, the Constitutional Court as a result of incoming complaints has expressed the position that the persons sentenced for the committed by them offences by the courts of law of other States, but transferred to the Republic of Belarus for serving sentence as imprisonment shall have the right to application to them in the presence of the relevant grounds of the laws of the Republic of Belarus on amnesty where such a transfer took place both on the grounds of international agreements and under the conditions of the principle of reciprocity. On the basis of this position the amnesty has become the subject to application with respect to the specified persons.
As in previous years the Constitutional Court in its Decisions and letters has made the proposals on the improvement of the laws on amnesty with the purpose of optimal securing of the equality of persons who committed offences. The proposals of the Constitutional Court were realized in the Law of 15 July 2002 "On amnesty of certain categories of persons who committed offences". At the same time, inconsistency of certain norms of the Law in question, which shall make no possibility for single application of the principle of equality with respect to the persons who committed offences before it comes into legal force, produced the necessity to make the proposal for the Parliament on giving the official interpretation of the specified norms.
Having examined the case on the constitutionality of reducing by the banks unilaterally the interest rates under the contracts of bank deposit, the Constitutional Court in its Decision of 6 November 2002 has come to the conclusion that citizens-depositors are deprived from the possibility to influence on the content of the contract and, therefore, as economically more weak party they are in need of a special protection of their rights. For the securing the constitutional principles of equality and social direction of economical activities, the protection of the rights of citizens and guarantees for their realization the Constitutional Court has proposed the Parliament to determine in the Bank Code the instances under which it is admissible to reduce by the banks unilaterally the interest rates on the deposits and that would eliminate arbitrary aggravation from the terms and conditions of the contract for a citizen-depositor in the absence of any objective prerequisites thereto.
After examination of the issue regarding non-payment of retirement pensions for former servicemen who live in other countries, the Constitutional Court has emphasized that exit of a citizen, who has the right to pension in accordance with the law, beyond the Republic of Belarus for permanent residence shall not be the ground for restriction of the given right. The relevant proposals on the improvement of the legislation in the given field have been forwarded to the Government.
The Constitution shall bind the State, the State bodies and officials within their competence to take all necessary measures to exercise individual rights and freedoms (Article 59). Violation of those obligations shall not promote the strengthening of confidence of citizens in the State and in the bodies thereof.
Thus, after consideration of the issue concerning untimely payment of wages through the fault of the employer and the citizens due to that had no possibility to make timely rent payments and payments for public utilities and that entailed exaction of fine from them for untimely fulfilment of obligations to housing and communal services, the Constitutional Court has proposed the competent State bodies to fix responsibility of employer for the violation of the terms of payment of wages, to introduce indexation of wages in instances of its untimely payment, as well as to envisage the right of employee to recovery of material and moral damage caused by delay in payment of wages.
Issues of realization in practice of the constitutional regulations on informing citizens on decisions of State bodies and officials have been examined by the Constitutional Court in the process of verification of the constitutionality of enforceable legal acts on the grounds of letters of citizens. The Constitutional Court has revealed violations of the requirements of the legislation on obligatory publication of enforceable legal acts in official editions, including local, as well as the facts of ill-grounded giving them retrospective effect, putting into effect the enforceable legal acts without giving the citizens the necessary terms for their perusal. Thereby, there was no fulfilment of the requirement of Article 7 of the Constitution which stipulates obligatory publication or promulgation of enforceable legal acts of State bodies by some means specified in law. The Constitutional Court, in particular, has paid attention of oblast executive committees to the necessity of securing proper acquaintance of citizens with enforceable legal acts adopting in the relevant administrative territorial units.
Based on the requirements of Article 40 of the Constitution and the Law "On the complaints of citizens" the Constitutional Court shall consider the complaints of citizens to be the most important source of information on activities of the State bodies on the observance of the norms of the Constitution and protection of individual rights and freedoms. In 2002 the Constitutional Court has received more than 1,300 written complaints, including 950 from single persons, 20 collective signed by 900 persons, 249 from public associations (including 63 letters signed by 3,500 their members). Moreover, there were 200 citizens accepted at personal reception in the Constitutional Court. Incoming complaints to the Constitutional Court shall signify about increasing level of the sense of justice of the citizens, about their aspiration to contribute to the improvement of the legislation and its proper execution in all spheres of life of our society with the requirements of the Constitution taking into account.
The greatest number of the complaints of citizens for the last year concerned the issue of lawfulness of actions of the bodies of investigation, imprisonment, examination of criminal cases in the courts of law, refusal from examination of supervisory complaints, execution of the laws on amnesty etc.
A number of complaints to the Constitutional Court in 2002 has been connected with securing housing rights of citizens, including in the field of giving soft credits, extraordinary free of charge subsidies and other forms of State support of the citizens for the improvement by them of living conditions. All those and other connected with them conditions should find their solution in new housing legislation.
Employees of certain State enterprises, who are providing with living accommodation for open-ended use under the rent contract, have made their complaints about the fact that those enterprises require simultaneously from them to transfer free of charge living accommodation which are privately owned by them. Obligatory condition, sine qua non, on free of charge transfer to the enterprise of living accommodation which is the ownership of a citizen, who improves living conditions under the rent contract, shall put him/her to inequality with the citizens, who do not have living accommodation as the ownership and, therefore, the Constitutional Court has proposed the House of Representatives to determine the procedure of granting by State enterprises for their employees of living accommodation under the rent contract which is not referred to the category of social living accommodation.
With an allowance for the numerous complaints of citizens on the issues concerning proper fulfilment by the State of its loan obligations on State purpose interest-free loan of the USSR of 1990, the Constitutional Court has proposed the Government (Decision of 31 December 2002) to consider the issue on the necessity of improvement of the mechanism of compensation of losses for the citizens - holders of the bonds in question.
During the past year there were incoming complaints from women who raise children in father's absence in which they noted that the lack in the legislation of minimum rate of alimony enforced for maintenance of children under age shall infringe essentially their lawful interests. Due to that the Constitutional Court has made its proposal to the National Assembly to fix minimum rate of alimony enforced from parents for maintenance of children under age as it was envisaged in the legislation formerly.
Numerous complaints of citizens specified to contradictions between pension legislation and the Criminal Code of Executions in part of regulation of the issues of deductions from pensions of imprisoned convicts and passing to their accounts of a part of the calculated income. At the same time, in practice there was no securing of guarantees specified in the Criminal Code of Executions, but there was application of the norms of pension legislation in spite of the fact that on the grounds of the provisions of the Law "On enforceable legal acts of the Republic of Belarus", the norms of a code as regards another law shall have higher legal force. For the purposes of elimination from the conflicts between the enforceable legal acts in question the Constitutional Court has proposed the National Assembly till 1 January 2003 to bring the norms of the laws on pension security into line with the norms of the criminal law of executions, as well as to regulate the issues of deductions from pensions of imprisoned convicts and passing to their accounts of a part of the calculated income.
A number of complaints has raised the issues on broadening the circle of persons who are considered to be victims of political repressions of 20-80-ies years and strengthening of social protection of the given category of citizens. Authors of such complaints propose to refer children who under age were not in care of parents to those persons who were repressed ill-grounded under political reasons. The Constitutional Court deems that those proposals should be subject to all-round study in the process of the work on the improvement of the legislation.
The important criterion for the estimation of constitutional legality shall be execution of Decisions of the Constitutional Court which are aimed to guarantee the supremacy of the Constitution and its direct effect. As it is specified in Article 10 of the Law "On the Constitutional Court of the Republic of Belarus" Decisions of the Constitutional Court are subject to obligatory execution in the territory of the Republic of Belarus by all State bodies, enterprises, establishments, organizations, officials and citizens. Decisions, as it is ordered by Article 401 of the given Law, are subject to execution immediately after publication, unless there are no other terms specially stipulated in them.
The majority of Decisions delivered by the Constitutional Court have been executed and that is marked in the present Message.
Moreover, in 2002 there have been executed previously adopted by the Constitutional Court Decisions of 19 May 2000 on suspended and conditional discharge of minors with respect to whom amnesty was applied, and of 6 December 2000 on the procedure of distribution of graduating students of State higher educational and specialized secondary establishments. The Ministry of Internal Affairs has adopted Resolution of 5 March 2002 No. 59 by which there were executed Decisions of the Constitutional Court as regards the right of those who detained, suspected, imprisoned to meetings in isolation of temporary keeping with the defence counsel without separating partition and without restriction of their quantity and duration under conditions within sight, but not within the hearing of those who detained, suspected, imprisoned and the defence counsel by an official of the isolation. Solution of the specified issues, even though with some lateness, shall signify about the affirmation in practice of the principles of the State ruled by law.
At the same time, there are instances where execution of Decisions of the Constitutional Court are taken no notice on behalf of State bodies and officials. Thus, non-execution of Decisions of the Constitutional Court on realization of the right of imprisoned convicts to judicial protection of disciplinary punishments incurred thereon by administration of reformatories has entailed a number of violations of the constitutional rights of citizens. There have been also instances of untimely execution of Decisions of the Constitutional Court on other issues.
The Constitutional Court deems that non-execution by State bodies and officials of Decisions of the Constitutional Court shall reveal their attitude towards the requirements of the Constitution, understanding the place and the role of each State body in forming legal system of the State.
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Analysis of the constitutional legality in 2002 shall manifest the presence in law making and law applying spheres in the Republic of Belarus of both accomplishments and disadvantages which have influence on the constitutional legality.
The work of law making bodies for the last years on creation of the system of national legislation shall be, undoubtedly, the positive factor of the State organization and that shall signify about forming in the Republic of Belarus new quality system of a sovereign State.
However, law creation and law application past year there have been the essential shortcomings: collisions of enforceable legal acts of the same level, gaps in legal regulation of the issues important for the protection of the constitutional rights and freedoms of the citizens, contradictions in normative regulation of the same issues by enforceable legal acts of equal legal force, deviations from the principles of the supremacy of the Constitution etc. The Constitutional Court in its Decisions has paid repeatedly attention to those negative phenomena.
The Constitutional Court has paid attention to the fact that in the Republic of Belarus, in fact, there is no practice of interpretation by law creating bodies of issuing by them legal acts even in instances where the necessity of interpretation is caused by contradictions in the activities of law applying bodies, the courts of law included.
By force of its nature the Constitutional Court has contributed in 2002 to strengthening constitutional legality, improvement of national legal system, harmonization of human interests, interests of society and the State, to forming the constitutional legal model for securing legal personal safety which is the ground of national safety of the Republic of Belarus.
The Constitutional Court considers that strengthening the constitutional legality may be secured under unconditional observance by all State bodies, officials and citizens in law making and in law applying activities of the principles and norms enshrined in the Basic Law.
The Present Message was adopted at the session of the Constitutional Court of the Republic of Belarus of 5 February 2003.
Presiding Officer —
Chairman of the Constitutional Court
of the Republic of Belarus G.A. Vasilevich
