15 January 2002 № D-136/2002
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.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin, has examined on the basis of Article 40 and part one of Article 116 of the Constitution of the Republic of Belarus complaint on the issue that foreign citizens and stateless persons, who were refused of registration of application on recognition them to be refugees or who were refuse of recognition to be refugees, may not realize their right to judicial protection, since effective rate of state tax is an excessive burden for the majority of persons who make their complaints to the court of law. Analysis of the relevant provisions of the Constitution, laws and other enforceable enactments of the Republic of Belarus, international legal acts shall signify the following.
Article 8 of the Constitution envisages that the Republic of Belarus shall recognize the supremacy of the universally acknowledged principles of international law and ensure that its laws comply with such principles. Under Article 12 of the Constitution the Republic of Belarus may grant the right of asylum to persons persecuted in other states for political or religious beliefs or their ethnic affiliation. On the grounds of the Law of 4 May 2001 the Republic of Belarus has acceded to the Convention relating to the Status of Refugees and to the Protocol concerning the status of refugees which has been adopted in accordance with resolutions of the UN General Assembly.
Article 16 of the given Convention enshrines that a refugee shall have free access to the courts of law on the territory of all Contracting States (point 1); a refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts, including legal assistance and exemption from cautio judicatum solvi (point 2). Point 1 of Article 29 of the given Convention specifies, that the Contracting States shall not impose upon refugees duties, charges or taxes, of any description whatsoever, other or higher than those which are or may be levied on their nationals in similar situations. Foreign nationals and stateless persons on the territory of Belarus shall enjoy rights and liberties and execute duties on equal terms with the citizens of the Republic of Belarus, unless otherwise specified in the Constitution, the laws and international treaties (Article 11 of the Constitution).
In the Republic of Belarus it is effective the Law "On refugees", and in accordance with part three of Article 15 of that Law decisions and actions (inactivity) of state bodies and officials connected with execution of the given Law may be appealed thereagainst to the higher body and (or) to the court of law. The specified norm is in conformity with Article 60 of the Constitution of the Republic of Belarus under which 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, as well as with Article 8 of the Universal Declaration of Human Rights which shall proclaim that 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 point 1 of Article 2 of the Law of the Republic of Belarus "On state tax" state tax shall be collected from statements of claims, applications and complaints lodging to the courts of law, from cassation and supervisory complaints against judicial rulings, as well as for the issue by the courts of law of the copies of the documents.
Resolution of the Council of Ministers of the Republic of Belarus of 26 February 1993 No. 105 "On rates of state tax" with further alterations and addenda, in particular, it is envisaged that state tax from the complaints lodges to the court of law against actions (inactivity) of state bodies and other legal persons, as well as of organizations which are not legal persons and officials which infringe upon the rights of citizens shall be collected at the rate of five minimum wages.
According to Article 4 of the Law "On state tax", which specifies privileges on state tax for certain categories of persons, persons, who were refused of registration of application on recognition them to be refugees or who were refused of recognition to be refugees, shall not be exempted from pay of state tax while appealing against decisions of state bodies and against actions (inactivity) of officials to the court of law.
Thus, persons by lodging complaints to the court of law against decisions and actions (inactivity) of state bodies and officials connected with execution of the Law "On refugees" should pay state tax at the rate of five minimum wages. Analogous obligation on pay of state tax shall perform citizens of the Republic of Belarus while making to the court of law the complaint against actions (inactivity) of state bodies and officials infringing upon the rights of citizens. At the same time, it is necessary to note that the property conditions of refugees are not always make them possible to meet the obligation on pay of state tax imposed thereon by the legislation of the Republic of Belarus.
Resolution of the Cabinet of Ministers of the Republic of Belarus of 20 June 1995 No. 314 "On financing of expenditure for rendering assistance for refugees" with further alterations and addenda has fixed the types and rates of pecuniary aid for foreigners who made their applications on recognition them to be refugees, as well as for the refugees: extraordinary (lump-sum) after registration of the application on recognition to be a refugee at the rate of one minimum wage; additional aid for those who are in hot need during the period of examination of the application on recognition to be refugees; for food - at the rate of one minimum wage for the second and for the third months of migration, but not more than two minimum wages during the period of examination of the application: for purchase of clothes - at the rate of not more than four minimum wages; for pay for living in leased places of temporal settlement - at the rate of no more than the factual cost of one-bed-place at the rate of minimum tariff in hotel facilities of a city (region); extraordinary (lump-sum) after issue of certificate of a refugee at the rate of one minimum wage.
All types of pecuniary aid for children at the age of 16 who are members of families of foreigners who made their applications for recognition them to be refugees, as well as refugees, shall be paid for one of the parents or for the tutor under their statement at the rates fixed for the persons who made their applications on recognition them to be refugees and for refugees (point 1). In accordance with the specified norm of resolution of the Cabinet of Ministers of 20 June 1995 No. 314 pecuniary aid for foreigners who made applications on recognition them to be refugees, as well as for the refugees, as a rule, is of nonrecurrent (one-only) nature and its rate is significantly lower than the state tax which is necessary to be paid by the foreigner, stateless person while making complaint to the court of law.
According to part three of Article 5 of the Law "On state tax" the court of law or a judge shall have the right to specify additional privileges in part of pay of state tax on judicial cases for certain citizens based on their property status. Article 130 of the Civil Code of Procedure of the Republic of Belarus shall contain the similar right. The complaint specifies that the courts of law of the Republic of Belarus shall rearly release persons, who are seeking asylum, from pay of state tax on the grounds of their material status. According to the data of the Department on migration of the Ministry of labour and social potation of the Republic of Belarus as on 1 January 2002 in the Republic of Belarus there have been recognized to be refugees 599 foreigners; there have been registered 900 applications; there are 120 refusals in recognition to be refugees; 97 cases has been terminated; 84 applications are in the process of examination. In all, since 1998 2,404 foreigners have made their applications to recognize them to be refugees. According to part one of Article 5 of the Law "On state tax" the Council of Ministers of the Republic of Belarus shall have the right to specify additional privileges on state tax.
The rate of state tax, which is collected from the complaints making to the court of law against actions (inactivity) of state bodies and officials infringing upon the rights of citizens, till 3 September 1999 was one minimum wage and only 20 per cent of minimum wage till 18 July 1998.
Resolution of the Council of Ministers of the Republic of Belarus of 25 August 1999 No. 1330 "On making alterations in state tax rates" has increased the scale of state tax on the given category of cases up to five minimum wages. In spite of the existed necessity for increase of the rate of state tax, that was realized in resolution of the Council of Ministers of 25 August 1999 No. 1330, in individual instances there may be specified additional guarantees and privileges as regards a certain category of citizens, in particular, foreigners and stateless persons who appeal judicially against refusal of registration of the application on recognition them to be refugees in order to secure for those persons access to justice.
The Constitutional Court emphasizes that in accordance with part one of Article 3 of the Law "On state tax" fixation of the rates of state tax shall be within the competence of the Council of Ministers of the Republic of Belarus.
Guided by the aforementioned, Article 7 of the Law "On the Constitutional Court of the Republic of Belarus" which shall give the Constitutional Court the right to submit proposals to the state bodies, the Constitutional Court
RULED:
1. To propose the Council of Ministers of the Republic of Belarus to examine the issue on reduction of the rate of state tax or on granting the privilege on pay of state tax for the persons who judicially appeal against refusal of registration of the complaint on recognition them to be refugees or refusal of recognition them to be refugees.
2. The present Decision shall come into legal force from the date of its adoption.
3. To publish the present Decision in accordance with legislation.
Presiding Officer —
Chairman of the
of the