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, G.A. Vorobei, K.I. Kenik, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin, having examined on the basis of Article 40, part one of Article 116 of the Constitution of the Republic of Belarus complaints as regards rejection of the courts of law in examination of the complaints of imprisoned convicts against application of penalties incurred thereto, found the following.

     The Constitutional Court has delivered of 2 April 2001 its Decision “On the right of imprisoned convicts to judicial appeal against incurred to them penalties”. In the specified decision the Constitutional Court, guiding by the provisions of the Constitution of the Republic of Belarus and by international legal acts, has once again paid attention to the fact, that the right of citizens to judicial protection under Article 60 of the Constitution shall be referred to the universally acknowledged principles of international law the supremacy of which the Republic of Belarus shall recognize and shall ensure that the laws of the Republic of Belarus comply with such principles. The right to judicial protection shall be referred to the rights which may not be restricted. The right in question may be also enjoyed by the imprisoned convicts.

     The Constitutional Court also emphasizes that the effective criminal legislation of procedure and the criminal legislation of executions, which shall specify no procedure of appealing to the court of law against the actions of administration on application of the penalties incurred to the convicts, shall practically restrict the right of imprisoned convicts to judicial protection.

     Due to that, the Constitutional Court, in particular, has deemed, that before making alterations and addenda into the effective legislation of the Republic of Belarus the imprisoned convicts who have appealed against the penalty imposed thereon and those, who are not agreed to the decisions adopted with respect thereto, shall have the right to lodge complaints to the court of law on the grounds of Article 60 and 137 of the Constitution.

     At the same time, as it is manifested in the coming to the Constitutional Court addresses and motions of the citizens the courts of law shall continue to reject in examination of the complaints of imprisoned convicts against the penalties incurred thereto by making reference to the fact, that the legislation shall envisage no procedure of judicial appeal against the specified actions of the administrations of reformatories.

     In that connection the Constitutional Court underlines again that the Constitution shall have the supreme legal force and where there is a discrepancy between a law, decree or ordinance and the Constitution, the Constitution shall apply. The given provision which is enshrined in Article 137 of the Basic Law should not be realized as a declaration, but as the guidance to practical application of the Constitution by the competent bodies — and, first of all, by the courts of law. The courts of law both shall have the right to apply the norms of the Basic Law directly and are bound to follow the prescriptions of these norms in instances of non-conformity of the enforceable enactments, which are subject to application, with the Constitution or in instances of insufficient regulation in the enforceable enactments of certain constitutional provisions.

     The Constitutional Court has indicated repeatedly in its judgements the necessity of direct application of the norms of the Constitution, including those judgements concerning application of Article 60 which shall envisage the right of everyone to judicial protection. In particular, Judgement of the Constitutional Court of 13 May 1999 has specified directly that, before making alterations and addenda into the Criminal Code of Procedure on the issues of judicial appealing against the ruling on termination of a criminal case, there should be applied directly under Articles 137 and 142 of the Constitution the norm of Article 60 of the Constitution.

     Rejection by the courts of law of the complaints of the convicts against application to them of the penalties shall mean non-application of the norms of the Constitution (Articles 7, 8, 59, 112) and is not in conformity with legal status of the convicts which is fixed in the Criminal Executive Code of the Republic of Belarus, where one of the components is their right to make proposals, appeals or complaints to the administration of a body or an establishment which shall execute sentence or other measures of criminal liability, to the court of law, to the procurator’s office or to the other state bodies, social associations on the protection of human rights and freedoms (part four of Article 10 of the Criminal Executive Code). Refusal of the right of convicts to judicial appeal against incurred to them penalties shall entail negative for them outcome, including non-application of amnesty and other forms of mitigation of punishment or release from it. In that connection the Constitutional Court deems, that the courts of law, while refusing the convicts in judicial examination of their complaints shall undertake responsibility for non-application of the constitutional norms, as well as for the violation of the rights of citizens enshrined in the Constitution.

     The Constitutional Court also emphasizes that the Criminal Code of Procedure of the Republic of Belarus shall directly specify that in case of contradiction between the norms of the given Code and the Constitution of the Republic of Belarus the provisions of the Constitution shall be applicable, and international treaties of the Republic of Belarus determining human rights and freedoms shall be applicable in the criminal procedure equally with the Code in question (part three and four of Article 1). In accordance with Article 72 of the Law of the Republic of Belarus “On enforceable legal acts of the Republic of Belarus” while revealing the gaps in the enforceable legal acts their prolongation before making relevant alterations and (or) addenda may be carried out by way of using the institutes of the analogy of the law and the analogy of a law.

     The indicated provisions of the Criminal Code of Procedure and the Law “On enforceable legal acts of the Republic of Belarus” shall make it obligatory to use the analogy in the criminal procedure that makes it possible while carrying out judicial protection of the rights of citizens to use the most reasonable for the particular case the procedure of taking and examining a complaint.

     The Constitutional Court pays attention that a number of rulings of the Plenum of the Supreme Court of the Republic of Belarus shall contain instructions for the courts of law such as how to apply the analogy of the law and analogy of a law in instances of gaps in the legislation (e.g. point 4 of Ruling of the Plenum of the Supreme Court of the Republic of Belarus of 26 March 2002 No. 2 “On application by the courts of law of legislation on material responsibility of the workers for the damage caused for an employer while performing labour duties”). Plenum of the Supreme Court shall also not exclude application of the analogy in the criminal procedure. In particular, point 3 of Ruling of Plenum of the Supreme Court of the Republic of Belarus of 22 June 1995 No. 7 “On judicial inspection of legality of imprisonment or prolongation of the term of imprisonment” (with alterations of 22 June 2000) which has been adopted during the period of the effective Criminal Code of Procedure of 1960, which had envisaged no procedure of appeal to the court of law against detention, had explanation that “in accordance with Article 25 of the Constitution of the Republic of Belarus complaint of a person detained on suspicion in crime, his defence counsel or legal representative as regards the lawfulness of detention shall be subject to examination by the court of law and be settled on points of fact as for the procedure and under the grounds stipulated by the Criminal Code of Procedure”.

     Application of analogy of the criminal legislation of procedure is also confirmed by law applicable practice of other states.

     The Constitutional Court also emphasizes 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. Thus, the convicts shall have the right to judicial appeal against the incurred to them penalties. That right may not be geared to the adoption in future of the law on making alterations and addenda into the criminal legislation of procedure and the criminal executive legislation.

     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. For the Supreme Court of the Republic of Belarus to secure realization by the courts of law of the norm of Article 60 of the Constitution of the Republic of Belarus which shall stipulate the right of all citizens to judicial protection, including also the right of imprisoned convicts to judicial appealing against the incurred to them penalties and that is pointed out in Decision of the Constitutional Court of the Republic of Belarus of 2 April 2001 “On the right of imprisoned convicts to judicial appeal against incurred to them penalties”.

2. In order to secure the constitutional right of the imprisoned convicts to judicial appealing of the incurred to them penalties the courts of law, guiding by the provisions of Article 72 of the Law of the Republic of Belarus “On enforceable legal acts of the Republic of Belarus” and using the possibilities of new codes of procedure, should choose the most optimal variant for the settlement of the disputes of that kind with application in case of necessity of the analogy of the law or the analogy of a law.

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 effective legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich