12 February 2002 № D-138/2002
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, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.I. Shabailov, G.B. Shishko, V.Z. Shuklin, having examined the issue on constitutional legality in the Republic of Belarus, guiding by Article 44 of the Law "On the Constitutional Court of the Republic of Belarus" and by Article 80 of the Rules of Procedure of the Constitutional Court,
RULED:
1. To adopt Message of the Constitutional Court of the Republic of Belarus to the President and to the Chambers of the Parliament of the Republic of Belarus "On constitutional legality in the Republic of Belarus 2001" (text is appended).
2. To publish the Message "On constitutional legality in the Republic of Belarus 2000" in newspapers "Zvyazda" and "Narodnaya gazeta" in ten days term from the date of adoption, as well as in journal "Vesnik Kanstytutsijnaga Suda Respubliki Belarus".
Presiding Officer —
Chairman of the
of the
To President
of
To House of Representatives
of National Assembly
of
To Council of Republic
of National Assembly
of
MESSAGE OF CONSTITUTIONAL COURT OF REPUBLIC OF BELARUS
ON CONSTITUTIONAL LEGALITY IN REPUBLIC OF BELARUS, 2001
Under the present conditions the unique law document on the basis and in fulfilment of which all the state and law system may be normally in progress shall be democratic Constitution. The Constitution is considered to be democratic, if the norms it contains shall specify and secure optimum balance of both interests of the state, society and an individual. The Constitution of the Republic of Belarus meets all those requirements. The principle of the supremacy of law which is enshrined in Article 7 of the Basic Law should be considered to be normatively fixed fairness, and the rights and freedoms - as a value guideline in law creating and law applicable practice, as a restricter of both the rights and freedoms of other persons and of the state.
Activities of the Constitutional Court, which is called for exercise control over the constitutionality of the enforceable enactments, has been directed, first of all, at the securing of the supremacy of the Constitution and, consequently, at the supremacy of law and that shall signify democratic nature of our state, evolution of the constitutional system which in its content shall meet the present international standards among which the most important is acknowledgement of human rights and freedoms, as well as rights and freedoms of a citizen as a supreme value and the supreme goal of the society and the state.
The issues raised in the applications to the Constitutional Court, studied and examined in 2001 materials, decisions delivered by the Constitutional Court were the grounds for estimations and conclusions on constitutional legality in the Republic of Belarus.
I
Past year 2001 has been marked by the main historical event - free democratic elections of the President of the Republic of Belarus. The tendency on further improvement of the legislation, broadening of legislative basis for economic activities, strengthening of the constitutional legality, safety of citizens included, broadening the guarantees for the protection of their fundamental rights and freedoms shall be emphasized as a positive results of home policy in that year.
The Constitutional Court notes that as a result of adoption in the Republic of Belarus of fundamental legislative acts in the majority of branches of law there have been created necessary pre-conditions for the realization and protection of the constitutional rights of citizens. In those spheres of social relations where such acts are still not adopted or are not regulated on a proper level (for example, in the sphere of administrative and tax law relations) the practice indicates for the largest number of violations of the rights of citizens. While adopting enforceable enactments of the ministries, local Councils of deputies, executive and administrative bodies very often those enforceable enactments contain the provisions which are not in line with the norms of the Constitution and with the legislative acts of the Republic of Belarus or those provisions which shall assume their multivalued understanding and application in practice. At the same time, norm creating bodies, by adopting an act, shall not always make control over the process of law application, make no analysis of the reasons of non-fulfilment of enforceable requirements, of multivalued law applicable practice. In 2001 the Constitutional Court has adopted 48 decisions concerning different branches of law.
The subject to revision in the Constitutional Court were issues connected with application of electoral, housing, labour, social, civil, administrative, tax, criminal legislation and criminal legislation of procedure and other legislation. While examining the applications the Constitutional Court has guided by Articles 40, 59, 116, 122, 137 and by other Articles of the Constitution, as well as by the Law "On the Constitutional Court of the Republic of Belarus", has been based on public significance of the issues raised and on the estimation of social consequences of realization of challenging enforceable enactments.
During holding regular elections of the President of the Republic of Belarus the subject to examination in the Constitutional Court were issues concerning electoral legislation. Legal positions of the Constitutional Court stated by it on the requests of Central Commission of the Republic of Belarus on elections and holding of republican referenda of 15 and of 19 June 2001 have promoted correct understanding of the meaning of the constitutional notions "citizen of the Republic of Belarus by birth" and "citizen of the Republic of Belarus who has been resident of the Republic of Belarus" used in Article 80 of the Constitution of the Republic of Belarus". Decisions of the Constitutional Court were directed to strengthening legal ground of electoral process, encouraged its democratization and holding free and fair presidential election, securing the principle of the supremacy of the will of people. Under present conditions it is rather complicated for the majority of citizens of Belarus to realize the constitutional right to housing. By examining housing issues the Constitutional Court has been based on the fact that the Basic Law stipulates the right to housing which shall be safeguarded by the development of state, and private housing stock and assistance for citizens in the acquisition of housing. For the citizens who are in need of social protection the state and local self-government shall grant housing free of charge or at available price in accordance with the law (Article 48).
The specified norm of the Constitution shall not only vested the state with the obligation to provision with housing, but shall also suppose active participation of the citizens in realization of the right in question, including by way of building, reconstruction, acquisition of housing. While examining the issue on the constitutionality of the Provision on referring citizens to the category of able-bodied citizens of moderate means for granting state support by building (reconstructing) or acquiring living accommodation approved by Resolution of the Council of Ministers of 20 December 2000 No. 1955 in part of specification of the category of citizens who shall have the right to obtain soft credits, subsidies and other forms of state support, the Constitutional Court in its Decision of 6 July 2001 has found that the Provision in question is in conformity with the Constitution, with the Housing Code and with the other laws. At the same time, the Government was recommended to make analysis of the execution of the specified Provision in order to take additional measures on absolute and timely repayment by citizens of the received soft credits.
The Constitutional Court has also come to the conclusion that the valuation of the cost of the property the amount of which shall be one of the grounds for granting soft credits while building (reconstructing) or acquiring living accommodation should be made by the authorized competent bodies in order to solve fairly and objectively the issues on the right of citizens to receive soft credits granting by the state. A number of issues of the activities of housing and building co-operatives of citizens or co-operatives of individual persons building till now found no full legal solution and in view of their non-regulation those issues shall continue to be raised by citizens and legal entities.
The Constitutional Court emphasizes that adoption and enforcing new Housing Code has practically made no change of legal situation in the field of improvement of housing relations and encourage no full achievement of social aims faced by the state. The Constitutional Court deems it necessary to accelerate the adoption of new Housing Code and that will further improvement of the housing legislation. In its Decision of 12 June 2001 the Constitutional Court has ruled that the terms for recovery of the specified payments, envisaged by the Temporary provision on the procedure of indexation of shares repaying for citizens in case of their withdrawal from house building co-operatives approved by Resolution of the Cabinet of Ministers of the Republic of Belarus of 6 June 1996 No. 375, shall not take into account the peculiarities of creation and expenditure of financial resources of house building co-operatives that shall infringe upon the rights and lawful interests of members of co-operatives, make complicated functioning of house building co-operatives as legal persons, delay completion of construction of dwelling houses and putting them into operation.
The Government has been proposed to determine such a procedure for repayment of shares which shall secure legal protection of both those members who are leaving house building co-operatives, and those who remain to be members of house building co-operatives, other organizations of citizens who carry out building and to provide for possible mechanisms of rendering assistance for house building co-operatives, for other organizations of citizens who carry out building in settling issues concerning repayment of shares for citizens who have left a co-operative (other organizations of citizens who carry out building) taken into account good nature of reasons of withdrawal, other noteworthy circumstances.
The Government in its Resolution of 1 December 2001 has charged the Ministry of architecture and building to work out and approve the provision on the conditions for recovery (payment) of means from different sources while terminating (renewal) of participation in building (reconstruction) of living accommodation. Having examined numerous applications of citizens on undue procedure of legalization of the right of ownership to the flat in Housing Building Co-operative (HBC), the Constitutional Court ruled that the practice of legalization of the right of ownership to the flat in HBC, which took place in Belarus, was complicated and contradictory by reason that there was no due legal regulation of the procedure in question. Explanation of the Ministry of housing and communal economy and the Ministry of justice, adopted of 24 September 1990, was out of date and was not in line with the effective legislation. The Constitutional Court has proposed the competent bodies to specify the procedure of legalization of the right of ownership to the flat in the house of HBC in accordance with the effective legislation and Decision of the Constitutional Court. The Constitutional Court has repeatedly verified the constitutionality of the enforceable enactments regulating the issues of pay for use of living accommodation and technical service of the housing stock. In its Decisions of 23 March and of 4 April 2001 the Constitutional Court notes that the owners of living accommodation should pay for technical service of all the premises under standard value of production in proportion to their share in the right of joint ownership.
The analogous requirement may be applied to the tenants of living accommodation. However, with economic conditions taken into account, the Constitutional Court has found it early to introduce pay for technical service of all the premises under standard value of production though the tendency of gradual change-over to full compensation by citizens of housing and communal services is an objectively stipulated tendency. The Constitutional Court, based on the social nature of our state, has come to the conclusion that increase of pay for use of living accommodation and for technical service of housing stock should be accompanying by the growth of population incomes. It should be noted that all decisions of the Constitutional Court on housing issues have been taken for their execution. Exercise of the constitutional control shall signify that protection and securing of labour rights of citizens are still actual and significant. Application of the Labour Code during the period of almost two years has specified that in this particular sphere of social relations on certain issues there is a multivalued law applying practice, including due to incompleteness of the Labour Code. In its Decision of 13 November 2001 the Constitutional Court has found to be conformity with the Constitution, Labour Code and Decree of the President of the Republic of Belarus of 26 July 1999 No. 29 point 2 of Resolution of the Council of Ministers of 2 August 1999 No. 1180 with alterations and addenda made by Resolution of the Council of Ministers of the Republic of Belarus of 6 January 2000 No. 19 which shall specify minimum compensation for deterioration of legal status of the employees who reached pension age (men - 60 years, women - 55 years) and who have the right to full pension, as well as of the employees who have not reached the specified age but who receive pensions (except for labour disability pensions, survivor's pensions and social pensions) at the rate of two-week average monthly earnings.
The Constitutional Court has pointed out that the employer at his own internal funds may fix also more higher rate of minimum compensations in comparison with the rate envisaged by point 2 of the specified Resolution of the Council of Ministers of the Republic of Belarus for different categories of employees. The Constitutional Court has found to be in compliance with the Constitution and with international legal acts the provisions of Article 21 of the Law "On bases of service in state staff" which shall regulate peculiarities of termination of service in state staff due to reaching by public servant of pension age and the presence of his/her right to full old-age pension, if a state body reserved no labour relations with him/her, as well as the explanation, given on the grounds of the Law in question, and which is contained in point 12 of ruling of Plenum of the Supreme Court of the Republic of Belarus of 29 March 2001 No. 2 and in its Decision of 18 July 2001 has proposed the National Assembly of the Republic of Belarus by elaborating and adopting new draft law on public service to envisage more guarantees for public servants while terminating service in state staff due to reaching pension age, and, in particular, to have regard to the relation to the job, capability of public servant to official duties, as well as the time from the moment of conclusion of the contract. Under the conditions of forming market relations the greater importance shall take the problem of preservation of the achieved level of social guarantees granted by the state for certain categories of citizens. By specifying the Republic of Belarus as a social state ruled by law, the Basic Law shall entrust state bodies to take all necessary measures at their disposal to secure dignified standard of living of all citizens of the republic.
The Constitutional Court has solving the issues relating to rendering address assistance for those citizens who stand in need most of all. Having examined applications of members of families of officers who lost their bread-winners in peace-time while carrying out military service duties, application of the Republican association of family members of servicemen who perished in Afghanistan, and analyzed the effective legislation regulating the issues of social securing of the relevant categories of persons, the Constitutional Court in its Decision of 16 July 2001 emphasized the presence of inequality in material security of certain categories of members of families of servicemen, persons of commanding staff and the rank and file of the bodies of internal affairs and of the bodies of financial investigations who perished (dead) while carrying out military or official service duties, as well as more lower norms of calculation of pensions as a result of loss of a bred-winner for the members of families who perished while carrying out military duties in comparison with calculation of pensions for the members of families of civilian persons. In the Decision of 16 July 2001 the Council of Ministers was proposed to rule out of the differences in question. Since the required alterations of the legislation are connected with further additional financing, the Decision has also proposed to make relevant alterations on or before the new budget year.
The proposals of the Constitutional Court have been considered in the Law of 3 January 2002 "On making alterations and addenda into the Law of the Republic of Belarus "On pension security of servicemen, commanding staff and the rank and file of the bodies of internal affairs". Having examined the constitutional motion of the Procurator-General of the Republic of Belarus, the Constitutional Court in its Decision of 13 June 2001 found that the envisaged by the Government free distribution of medicines for servicemen, persons retired from military service, members of their families, invalids of the Great Patriotic War and invalids from among servicemen from the chemist's shops of the Ministry of Public Health with further submission of accounts for payment of the cost of medicines to military medical establishments which have written a prescription, to be in conformity with the Constitution and the laws of the Republic of Belarus. At the same time, the Constitutional Court has emphasized that the procedure in practice, where security of participants of the Great Patriotic War, other persons equated to them in privileges, with medicines under prescriptions of medical personnel of remedial prevention establishments of departmental belonging shall depend upon conclusion of contracts with chemist's establishments and with enterprises of the Ministry of Public Health, as well as upon fulfilment of contractual obligations by departmental military and medical services, shall be at variance with the requirements of the Government. The given Decision of the Constitutional Court is at the stage of its fulfilment.
The Constitutional Court has repeatedly examined the issues related to the compulsory insurance of the buildings owned by citizens. Study of normative and legal acts regulating the given issues, as well as practice of their application have signified the necessity of adoption by the Government of the measures on the establishment, as it was entrusted in Decree of the President of 8 October 1997 No. 18, the procedure of valuation of insurance cost (insurance valuation) of buildings, rate of insurance tariff, rates of deductions from insurance premium for making insurance reserve in the fund of preventive measures, for running business of an insurer in order to find an optimum balance of interests of insurants of the Republic of Belarus, insurer and the state. While examining the application of social association of veterans, it has been found that Belgosstrakh, by effecting insurance of buildings, shall not take into account the right of invalids of war and persons equated therewith to the privilege stipulated by the Decree in instances, when a building is registered in favour of a spouse of an invalid of war. The Constitutional Court has emphasized that under effective legislation granting invalids of war the privilege is not excluded if a building, which is subject to be insured, is in a collective joint ownership of an invalid (person equated therewith) or of a spouse. Due to that, the Council of Ministers was proposed to secure realization by the given category of citizens the right to be exempted from payment of insurance premium.
The Constitutional Court has also examined the issues on non-conformity with the legislation of certain provisions of agreements on communications services, concerning installation of telephones on double-operating scheme. In the fulfilment of Decision of the Constitutional Court of 19 March 2001 the Ministry of Communications has made alterations to the Rules of rendering services by local telephone network systems. The Rules shall stipulate that switching of telephone subscriber device, which is operating in separate subscriber line, on double-operating scheme shall be carried out only with the consent of a subscriber. The Constitutional Court has paid attention to the imperfection of effective legislation in part of determination of legal status of gardening partnerships. The existed situation was complicated by the fact, that the acts of legislation have not secured proper regulation of the issues connected with the organization and activities of gardening partnerships, as well as for the relevant bodies of state power there was no timely proposals aimed at more full legislative protection of the rights of members of gardening partnerships. In its Decision of 27 February 2001 the Constitutional Court has found to be in line with the norms of the Civil Code the existence of gardening partnerships as an independent organizational and legal form of non-commercial organizations. At the same time, there is no exclusion of their right to be reorganized into gardening co-operatives on condition of making by gardening partnerships into their statutes alterations and addenda following from new civil and land legislation.
The Constitutional Court has also specified that collection of pay for registration of alterations and addenda into their constituent documents due to amendment of legislation under which the alterations or addenda into constituent documents are required (if gardening partnerships are not subject to be reorganized into gardening co-operatives) shall have no legal ground. According to the available information, on the ground of Decision of the Constitutional Court of 27 February 2001 there is a uniform practice of re-registration of alterations and addenda made into the statutes of gardening partnerships under the new civil and land legislation. In the sphere of administrative law regulation it took place unlawful judicial practice of application of legislation while confiscating things which are objects of customs offences, as well as there were violations of the rights of citizens by enforcing punishment as administrative arrest. The Constitutional Court in its Decision of 25 April 2001 has ruled that Article 37 of the Administrative Code of the Republic of Belarus in part of admissibility of calling to administrative liability as confiscation of things which are direct objects of administrative customs offences, and subjects with specially made hiding-places used for concealment of things from customs clearing after expiry of the terms fixed in parts one and two of the given Article shall be in compliance with the Constitution. Judicial practice on the given category of cases in part of non-application of confiscation of the things in question with the reference to expiry of two months term has been found to be unconstitutional, since it is at variance with the requirements of part one of Article 37 of the Administrative Code.
The Supreme Court is bound to ensure uniformity of that practice in the whole territory of the republic. The Constitutional Court has also emphasized that the lawmaker should determine limiting terms during which a person who committed an administrative customs offence may be subject to application of confiscation of things which are direct objects of administrative customs offences, and subjects with specially made hiding-places used for concealment of things from customs clearing. For the period before solution of the given issue the Constitutional Court has found to be lawful application of general three-year term. In its Decision of 5 July 2001 the Constitutional Court has found to be admissible collection from the persons, who committed administrative offences and who were subject to administrative penalty as administrative arrest, means for their keeping and food. In that connection the Constitutional Court has noted that withholding of the cost of keeping and food from both persons who were subject to administrative arrest and from persons detained for the commitment of offences for which the court of law may apply penalty as administrative arrest, envisaged by the Provision on special custodial reception centres under the bodies of internal affairs, approved by order of the Ministry of Internal Affairs of the Republic of Belarus of 18 October 1999 No. 206, is not in compliance with Resolution of the Cabinet of Ministers of the Republic of Belarus of 27 November 1995 No. 646 (in wording of Resolutions of the Council of Ministers of the Republic of Belarus of 27 November 2000 No. 86 and of 11 October 2000 No. 1557), which shall allow forced deduction of the cost of keeping and food only from those persons who are subject to administrative arrest. In view of existing contradictions between the specified acts of the Ministry of Internal Affairs and the Government, the Council of Ministers has been proposed to remove from them, as well as to consider the issue on renaming of special establishments (special custodial reception centres) under the bodies of internal affairs in order to use more proper name which shall meet modern level of legal culture and feeling for law and order.
The National Assembly of the Republic of Belarus has been proposed to take measures on further improvement of legislative regulation of relations connected with administrative detention, regime of keeping of persons in special custodial reception centres under the bodies of internal affairs (temporary isolation wards). In the fulfilment of Decision of the Constitutional Court of 5 July 2001 the Ministry of Internal Affairs in its ruling of 7 August 2001 has made relevant amendments in the Provision on special custodial reception centres. According to the information of the Government it is expected to solve the issue on renaming of the specified establishments by adopting the Administrative Procedural and Execution Code of the Republic of Belarus. The Constitutional Court has examined the issue on inconsistency of the provisions of part one and three of Article 242 of the Administrative Code of the Republic of Belarus which shall envisage the terms of administrative detention. In its Decision of 4 July 2001 the Constitutional Court has come to the conclusion that in order to secure the constitutional rights and freedoms of an individual the instances of administrative detention should be absolutely of legal and well-founded nature. The term of administrative detention may be also fixed as more than three hours, but only in instances, which are specifically stipulated in the law and in case of commitment of those offences for which administrative arrest is envisaged as an administrative penalty.
The Constitutional Court has proposed the National Assembly to make relevant alterations and addenda into the effective Administrative Code, as well as to take into consideration Decision of the Constitutional Court in the process of final revision of draft Administrative Procedural and Execution Code of the Republic of Belarus. Several times the Constitutional Court has examined the acts of tax legislation which are still bulky and complicated for perception and application. Imperfection and contradictoriness of certain norms of tax legislation, by-laws included, shall prevent from realization of lawful rights of citizens. In its Decision of 11 July 2001 the Constitutional Court has analyzed certain issues of legal regulation of taxation of income as succession duty. In the process of examination of the case it has been established that taxation bodies, while collecting income succession duty were guided by the norms of Methodical instructions on calculation and pay of income tax from natural persons, approved by Order of State tax committee of the Republic of Belarus of 6 April 1999 No. 62 (with further alterations and addenda) in their content were differ from the norms of the Law "On income tax from natural persons".
Thus, the referring norm of paragraph five of sub-item 16.2 of the specified Methodical instructions concerning the terms of pay of income tax was at variance with the provisions of the Law "On income tax from natural persons", as well as infringed upon the constitutional rights and lawful interests of citizens who draw succession duties. The Constitutional Court has also emphasized that non-observance of the terms for pay of advance payments on succession duty shall not be the ground for the application of the responsibility under taxation legislation for untimely pay of income tax. The given Decision of the Constitutional Court has been executed by way of adoption by State tax committee of Resolution of 10 July 2001 No. 98 which have brought sub-item 16.2 of the Methodical instructions into line with the Decision of the Constitutional Court and of 30 July 2001 No. 105 "On non-application of measures of responsibility for untimely pay of advanced payments on income tax". Moreover, 119 successors who applied to tax bodies were returned from the budget the sums of financial suctions, which were collected from them as a result of wrong application by those bodies of the norms of the Law "On income tax from natural persons". Since 1 January 2002 in accordance with the Law of 25 June 2001 "On making alterations and addenda into the Law of the Republic of Belarus "On income tax from natural persons" incomes in kind and pecuniary incomes from natural persons as succession duties are subject to no income taxation.
Under Article 13 of the Constitution the state shall grant equal rights to all to conduct economic and other activities, other than those prohibited by law, and guarantee equal protection and equal conditions for the development of all forms of ownership, as well as equal opportunities for free utilization of abilities and assets for business and other types of economic activities which are not banned by the law. The Constitutional Court in its Decision of 4 April 2001 as a result of application of Directors of ten fleets of taxis has come to the conclusion, that the effective tax rates in the sphere of transport services shall not secure equal rights to conduct economic activities and are in need of improvement and underlined the necessity to make analysis of economic validity of the specified by Minsk city Councils of deputies of fixed income tax rates collected from individual entrepreneurs, who render transport services for the population, and clarification of those rates taking into account the comparability of tax load of an individual entrepreneur and tax load per one employee of a taxis enterprise in order the taxation regime not to suppress economic activity of different economic entities. The tax bodies were proposed to strengthen control over the activities on rendering transport(ation) activities for the population, as well as over proper application of the measures of responsibility for non-observance of the legislation in entrepreneur activities and in taxation. The tax bodies have been proposed to strengthen control over activities on rendering transport services for the population and over proper application of the measures of responsibility for non-observance of the legislation on entrepreneur activities and on taxation.
The Constitutional Court has repeatedly given legal estimation of the constitutionality of setting of local taxes and dues with paying attention to the scope of powers of local Councils of deputies in the given field of activities. Examination of decisions of Novopolotsk city Council of deputies in setting of the due for use of paid car parks and Brest region Council of deputies on local hunting due has signify that, by realizing by local Councils of deputies of exclusive competence enshrined by Article 121 of the Constitution, they make a number of violations. In particular, those violations are concerning delegation to the executive committee of the powers on the improvement of the provisions on local dues, specification of due-payers, imposition of responsibility for proper calculation, timely payment and observance of the procedure of collection of dues. The Constitutional Court has paid attention to the fact, that the lawmaker shall not secure in full regulation of relations in the sphere of local taxation and in practice that leads to different kinds of deviations from the requirements of the law.
The National Assembly has been proposed, while setting of local taxes and dues, to envisage more full regulation of relations in the sphere of local taxation, including in part of notions used, fixing the rates, specification of subjects and objects of taxation, in order to secure protection of the constitutional rights and their guarantees, to remove from inequality of tax-payers and from violations of the requirements of the Constitution and the laws on part of local Councils of deputies. The Constitutional Court has emphasized the obligation of local Councils of deputies to observe unconditionally the requirements of Articles 7 and 34 of the Constitution on the securing the rights of citizens to receive complete, reliable and timely information of the activities of state bodies which shall directly involve their rights and lawful interests, including by way of publication of decisions of local Councils of deputies on setting local taxes and dues and provisions thereon. Brest region Council of deputies in its decision of 27 December 2001 has approved new Provision on local hunting due. Completion of codification of tax legislation and adoption of Tax Code should regulate legal relations in that sphere, as well as to make favourable atmosphere in economy and that will be additional incentive to its development. In the field of criminal legal regulation it took place violations of the constitutionality connected with the absence of true and uniform application in practice of the norms of new Criminal Code. Due to that, there were issues concerning application of the rule of retroactivity of more soft criminal law, constitutionality of the provisions of the Criminal Law which shall specify the notion of official, as well as provisions of the legislation and ruling of Plenum of the Supreme Court concerning the subject of bribe, including that, which belongs to a bribe-giver, who is subject to be released from criminal liability under the legislation. In particular, in practice because of multivalued understanding of the rule of retroactivity of a criminal law that rule has not been applied in full as regards persons who were found under the Criminal Code of 1960 to be specially dangerous recidivists. In the majority of instances they were equated with the persons who committed specially dangerous repeated offence and the notion of which has been introduced by new Criminal Code and sentences with respect to them were subject to revision only in instances of re-qualification of the deeds they made owing to exclusion from articles of new Criminal Code of such a qualifying feature as commitment of an offence by specially dangerous recidivist. That was resulted in the fact, that the convicts for the offences, which under new Criminal Code shall make no specially dangerous repeated offence, have been still of previous status and that is connected with various negative for them consequences (serving sentences in reformatory with special regime, preventive supervision after release from punishment etc.).
In its Decision of 5 October 2001 the Constitutional Court has noted that the sentences with respect to the persons, who were found to be specially dangerous recidivists under the Criminal Code of 1960, should be revised with the rule of retroactivity of a criminal law in all instances taken into account, if the previously committed by them offences make no specially dangerous repeated offence under the effective Criminal Code. In practice of application of new criminal legislation there were issues concerning revision in accordance with the rule of retroactivity of the verdicts as regards the persons who are subject to be early and conditionally released from punishment. In its letter addressed to the Head of the Committee of execution of sentences of the Ministry of Internal Affairs the Constitutional Court has stated its position that the verdicts as regards the specified persons before application to them of early and conditional release from punishment should be revised by the courts of law with the rule of retroactivity of a more soft criminal law taken into account. That is conditioned by the significance of the remained term of punishment which shall predetermine the limits of legal status of the persons early and conditionally released from the punishment, as well as legal consequences of their unlawful behaviour during the specified period of time. Non-served term of sentence should be also considered in case of its change for more soft sentence. Due to the fact that in the Republic of Belarus it has begun to be formed multivalued practice on calling to criminal liability of persons who are officials on the feature of commitment of juridically significant acts, the Council of Ministers on the initiative of the Ministry of Internal Affairs has made the proposal to the Constitutional Court concerning the verification of the constitutionality of the provision of point 3 of part four of Article 4 of the Criminal Code according to which officials shall be persons authorized in the established procedure to commit juridically significant acts. In its Judgement of 12 November 2001 the Constitutional Court has found the specified provision to be in compliance with the Constitution and noted that that provision shall make it possible to consider lecturers of higher and specialized secondary education institutions to be subjects of offences against interests of service in instances, if they are authorized to commit juridically significant acts (taking course exams, tests that involve legal consequences for those who are educated).
The same direction of development has judicial practice in other Member-States of the Commonwealth of Independent States, in spite of the fact, that the legislation of those States shall not envisage commitment of juridically significant acts as a feature of an official. Inconsistency of the provisions of new Criminal Code and new Criminal Code of Procedure as regards the lot of money and other values received by a criminal way, indistinct explanation on the given issue of the Plenum of the Supreme Court were the reason for multivalued understanding of the issue on the lot of the bribe subject, including the instances, if it was the belonging of a person - a bribe-giver, but which shall be released from criminal liability due to active contriteness or, if extortion of a bribe took place with respect to that person. In its Judgement of 28 November 2001 the Constitutional Court has proposed the Parliament to remove from inconsistency of the norms of the Criminal Code and the Criminal Code of Procedure in part of specification of the lot of money and other values received by a criminal way and not to eliminate a possibility of such a legislative solution according to which the courts of law in special cases shall have the right to solve the issue on the return of a subject of a bribe to a bribe-giver who shall be released from criminal liability on the grounds of the note to Article 431 of the Criminal Code. The Constitutional Court has paid attention to non-regulation in the legislation of the issue on return to lawful holders of their money and other values passing on a bribe-taker in the process of operations and search measures.
At the present moment, with the specified Judgment taken into account, there has been prepared draft law on making alterations and addenda into the Criminal Code of Procedure. Imperfection of certain norms of periodically adopting in the republic laws on amnesty, as well as multivalued understanding of them by law applying bodies have become the ground for violation of the right to amnesty of certain categories of convicts. In particular, there was no application of the laws of the Republic of Belarus on amnesty to the convicts on the part of the courts of law of other states, but who were transferred for serving sentence as imprisonment in instances, if there were no relevant international treaties. The Constitutional Court has emphasized that those persons shall have the right to application to them of the laws of the Republic of Belarus on amnesty even in instances, if they are subject to be transferred for serving sentence as imprisonment in the territory of the Republic of Belarus without the presence between the states of an international treaty, but on the ground of the principle of reciprocity. In the procedure of realization of the given position of the Constitutional Court the Procurator's Office jointly with the Committee of execution of sentences of the Ministry of Internal Affairs gave the order for the relevant bodies to review the issue on application of amnesty to the specified persons and, in case of presence of the grounds in the laws on amnesty, to apply it.
There were other issues concerning the application of the laws on amnesty in the field of vision of the Constitutional Court. In accordance with Decision of the Constitutional Court of 17 November 2000 the right to amnesty should have the convicts the verdicts with respect to whom have not been enforced on the day of enforcement of the law on amnesty, since their cassation complaints were not subject to be revised during long period of time under the circumstances beyond their control. The complaints to the Constitutional Court in 2001 shall signify that the amnesty in a number of instances has not been applied to the convicts the verdicts with respect to whom on the day of enforcement of the law on amnesty were enforceable, but afterwards became subject to revision in the procedure of supervision. Arising in practice issues on application of amnesty and the relevant violations of the right of certain categories of convicts to amnesty are conditioned, in the opinion of the Constitutional Court, by the fact, that the laws on amnesty stipulate traditionally the reduction of the term of imprisonment only as regards those convicts the verdicts with respect to whom were enforceable on the day of enforcement of the law on amnesty. The specified provision in newly adopting laws on amnesty should be worded in the way, that the right to amnesty covers the convicts who committed offences before enforcing the law on amnesty irrespective of the fact, whether the verdicts with respect to them are enforced or not enforced. Such a legislative solution shall also make it possible for the Parliament to exercise the proposal made for it in Decision of the Constitutional Court of 17 November 2000. Under the conditions of effect of new criminal legislation of procedure and criminal legislation of executions it is important to secure in full the constitutional right of citizens to judicial protection. In view of the fact, that in practice there is a multivalued understanding of the principle of direct effect of the norms of the Constitution and, in particular, Article 60 which shall guarantee everyone the protection of one's rights and freedoms by a competent, independent and impartial court of law within time periods specified in law, as well as due to the fact, that the given provision is not in full fixed in branch legislation, certain categories of persons are deprived of the right to judicial protection.
That is conditioned by numerous applications and complaints incoming the Constitutional Court. While examining those complaints, the Constitutional Court has adopted a number of decisions confirming the right of citizens to appeal to the court of law with the complaints against actions and decisions of a body of inquiry, inquirer and investigator on the issues arising due to exercise of criminal procedure relations (Decision of 3 April 2001), the right of imprisoned convicts to appeal against incurred to them penalties (Decision of 2 April 2001), the right to appeal by military personnel to the court of law against disciplinary penalty in three months period from the day when they have known or had to know about violation of their right (Decision of 23 March 2001).
The specified decisions due to the requirements of Articles 59, 60, part one of Article 116, Article 137 of the Constitution, as well as Articles 38 and 401 of the Law "On the Constitutional Court of the Republic of Belarus" shall be subject to execution. The Constitutional Court has examined the issue on preservation in the judicial system of the institute of People's assessors. In its Decision of 17 April 2001 the Constitutional Court has emphasized that in order to secure the constitutional principles of justice and to realize the provisions of Article 60, points 9 and 10 of Article 84, Articles 109-115 of the Constitution the issues of forming the composition of People's assessors, specification of their legal status while administering justice should be stipulated by the law. Allowance of a People's assessor for carrying out the duties of a professional judge shall be possible only under the decision of the President of the Republic of Belarus with the requirements of the Constitution and the laws taken into account and that shall have principled significance for forming impartial and fair court of law. The National Assembly has been proposed to make alterations and addenda into the Law "On judicial system and status of judges in the Republic of Belarus" and into other enforceable enactments with the purpose of proper legislative regulation of the procedure of formation of panel of People's assessors and elimination of existing collisions in effective legislation. Decree of the President of the Republic of Belarus of 15 June 2001 No. 18 has approved the Provision on People's assessors, the Council of Ministers has been given instruction to submit to the House of Representatives of the National Assembly draft Law "On making alterations and addenda into the Law of the Republic of Belarus "On judicial system and status of judges in the Republic of Belarus".
The Constitutional Court emphaiszes that decisions of the Court delivered in 2001 in the main have been executed or were taken for the execution by the competent bodies. In 2001 there have been also executed a number of decisions adopted by the Constitutional Court in 2000, there have been also realized the proposals made by the Court to the state bodies for the improvement of the legislation. Thus, the Council of Ministers in the fulfilment of decisions of the Constitutional Court of 5 September 2000 and of 22 September 2000 has amended the relevant Resolutions in part of regulation of the pay for use of living accommodation and technical maintenance of the housing stock, as well as the procedure of granting and summing labour leaves. The National Assembly and the Council of Ministers have made the based on the Decision of the Constitutional Court of 17 March 2000 relevant alterations and addenda into the Law "On pension security" and the Provision on the procedure of confirmation of record of work for awarding pensions connected with inclusion into record of work of the activities of citizens who took part in 1943-1945 in composition of special units of mine clearing activities of the territories which were liberating.
Proposals of the Constitutional Court concerning conscription for fixed-date military service of persons dismissed from the bodies of the Ministry of Internal Affairs (Decision of 9 November 2000), have been taken into account in the Provision on service in the bodies of internal affairs of the Republic of Belarus approved by Decree of the President of the Republic of Belarus of 13 November 2001 No. 671, as well as in Resolution of the Council of Ministers of the Republic of Belarus of 15 March 2001 No. 343. In 2001 there have been realized previously adopted Judgment of the Constitutional Court connected with more full protection of the rights of citizens while forced towing of means of transportation away, Decision of the Constitutional Court concerning realization of the constitutional guarantees of certain groups of veterans of war, as well as a number of other decisions of the Constitutional Court. However, decisions of the Constitutional Court are not always subject to operative execution. Admission of an enforceable enactment to be unconstitutional has not always entailed abolition or termination of the effect of the acts of lower level adopted on the grounds thereof, and due to that they continued to be effective and applicable in practice and that shall be at variance with the Constitution and with other laws of the Republic of Belarus.
The Constitutional Court notes that in the overwhelming majority of applications, as a result of which there have been adopted decisions by the Court, interested persons have been applied to the authorized bodies with specification of the presence of contradictions of the enforceable enactments with the Constitution and that entailed violations of the rights and freedoms of citizens. However, those applications very often have been remained without reaction thereon. In many instances only after adoption by the Constitutional Court of its decision those acts have been amended or were brought into line with the acts of more higher legal force. The Constitutional Court proposes to develop the practice of official interpretation of the effective norms, the norms of the Constitution included.
The absence of such a practice shall lead to the mistakes in law application and to the violation of the rights of citizens. As before, it is still actual the problem of responsibility of all the state bodies for the constitutional legality which are being realized not only by way of norm creating and law applying activities which shall meet the requirements of the Basic Law, but also by way of performance of the vested in the state body obligation to make constitutional motions to the Constitutional Court on verification of constitutionality of enforceable enactments in the procedure of constitutional legal procedure.
II
The important criteria for appraisal of the constitutional legality in the Republic of Belarus is analysis of the applications of citizens. Last year the Constitutional Court has received more than 1.500 written applications. Among them more than 1.300 individual applications, 200 applications from various public associations, as well as from collective applications of citizens with more than 3.500 signatures, which raised issues touching upon the interests of dozens and hundred thousands of citizens. Moreover, at personal reception in the Constitutional Court there have been received more than 350 citizens. In instances of necessity there have been given the relevant explanations on the applications, a part of them have been forwarded for the consideration to the competent state bodies.
As for the applications of social significance which were conditioned by the gaps or by the contradictions in the current legislation the Constitutional Court, guided by Article 40 of the Constitution, has adopted within its competence decisions with well-grounded proposals for the competent state bodies. The majority of complaints of citizens in 2001 were applied to the performance by the banks of their obligations on bank deposit agreements, compensations on deposits and on securities, violations of the rights and lawful interests in the field of housing, labour, land, credit, tax, insurance, administrative and some other law relations. More than 300 individual and collective applications (ca. 20 per cent) put the issue on validity of introduction into the passport of the citizen of the Republic of Belarus of personal (identifiable) number. About 200 applications (ca. 15 per cent) were against verdicts and decisions of the courts of common law, against actions of the bodies of internal affairs, tax and customs bodies. There are still continue upcoming the complaints of citizens who are not satisfied in the amount of compensation on state purpose interest-free loan of the USSR of 1990. The significant part of applications of citizens concerned the problem of their equality before the law.
Thus, the Constitutional Court has examined the applications of citizens - participants of armed fight with gunmen units in 1944 - 1951 in the territories of Ukrainian SSR, Belarusian SSR and Baltic republics of the former USSR, but who were not found to be veterans of war only on the ground that they were at that time military servicemen of fixed-term service. The Constitutional Court found that the specified category of citizens is in unequal status in comparison with other persons who took part in struggle with gangsterism under the same conditions and who were found to be veterans of war. Decision of the Constitutional Court on equation of the rights of the given categories of citizens who took part in struggle with gangsterism is still in need of realization.
The Constitutional Court emphasizes that in certain instances the rights of certain categories of citizens may be restricted but only within the limits enshrined in Article 23 of the Constitution. That is allowable in the interests of national security, public order, the protection of the morals and health of the population as well as rights and freedoms of other persons and only in the procedure specified in law. Otherwise, it will be violation of the constitutional provisions and that causes reasonable complaints of citizens. Citizens make their applications to the Constitutional Court having already exhausted, as a rule, all the available for them legal remedies in other state bodies. Those complaints specify that local executive and administrative bodies, courts of law, law enforcement bodies, as well as certain officials shall not take all the measures that lay in their power for the protection of the violated rights and lawful interests, shall apply the enforceable enactments which, in the opinion of citizens, are not in conformity with the acts of more higher legal force.
The Constitutional Court is still receiving the complaints connected with the contradictions in the enforceable enactments regulating licensing of different types of economic activities (motor transportation, rent of fishing areas etc.) and as a result of that there are restrictions of the rights of citizens and obstacles for the development of entrepreneur activities. Incompleteness of legislation on pension security, in particular, equalizing approach towards the establishment of pensions as regards cut of the specified wage, absence of the mechanism of recalculation of pensions and restrictions on their pay in instances of continuation of employment give rise to numerous unfavourable criticism on behalf of the citizens. Many of complaints of citizens, collective complaints included, shall raise the issues concerning the imperfection of the legislation on compulsory insurance of the owned by the citizens buildings, including imperfection of the mechanism of estimation of buildings, as well as realization of the right to granting privileges specified in legislation.
The Constitutional Court has paid attention to such a type of applications of citizens and enjoying the right granted on the ground of part seven of Article 116 of the Constitution and stipulated in Article 7 of the Law "On the Constitutional Court of the Republic of Belarus" forwarded to the state bodies within their powers the proposals on the necessity of making amendments in the effective legislation, adoption of new enforceable enactments. Those proposals in the form of decisions have found, as a rule, proper reaction. However, realization of some of them are delaying unjustifiably and restrictions of certain rights and lawful interests of citizens are being preserved. In 2001 a big amount of complaints have been incoming both the Constitutional Court and other state bodies which are authorized to make constitutional motions to the Constitutional Court for delivery a judgement. Among those applications there are quit a lot of complaints concerning the constitutionality of certain enforceable legal enactments. However, there were no proposals determined by the complaints of the citizens on verification of the constitutionality of those acts to the Constitutional Court. In 2001 under part four of Article 116 of the Constitution the Constitutional Court has received only three proposals on verification of the constitutionality of the enforceable enactments.
The specified proposals have been brought by the Council of Ministers on the initiative of the Minister of Internal Affairs and by the House of Representatives of the National Assembly. Proposals of the citizens, which reflect their interest in the improvement of the legislation, shall find their expression both in decisions of the Constitutional Court and in the proposals of the specialists of the Constitutional Court to the bodies which shall prepare draft legislative acts. In 2001 the Constitutional Court has received about 100 draft enforceable enactments.
Since the Constitutional Court shall have no right to exercise control and review over draft enforceable enactments the constitutionality of which after their adoption may be subject to the examination of the Court, the drafts are subject to study by the specialists of the Constitutional Court. The proposals made on daft enforceable enactments shall be taken into account, as a rule, while preparing draft enforceable enactments and that shall promote securing their constitutionality. The content of the applications to the Constitutional Court shall signify the increasing level of sense of justice of the citizens, their aspiration to further improvement of the national legislation and to strengthen the constitutionality. That circumstance, as well as the positive experience of the constitutional control in different countries of modern world, shall make it possible to consider it necessary the legislative development of the fixed in Article 122 of the Constitution right of citizens to direct application to the Constitutional Court on the issues of verification of decisions of normative nature of local Councils of deputies, executive and administrative bodies which restrict or violate their rights, freedoms and lawful interests.
The procedure of forwarding to the Constitutional Court of the proposals of the courts of law on verification of the constitutionality of the enforceable enactments, which are applicable or subject to application while solving concrete cases, is in need of further improvement. Legislative solution of those issues will have no necessity for making amendments in the Constitution, since it follows from the content of Articles 60, 61, 112, 116 and 122 of the Basic Law. In 2001 there have been continued the fruitful co-operation with the Procurator's Office of the republic in the field of protection of the rights of citizens. Effectiveness of the supervision carried out by the bodies of the Procurator's Office over the strict and unified implementation of the laws, decrees and edicts of the President of the Republic of Belarus will be grown up significantly in case of direct stipulation in the Law "On the Constitutional Court of the Republic of Belarus" of the right of the Procurator-General of the Republic of Belarus in accordance with part seven of Article 116, Articles 125 and 128 of the Constitution to make constitutional motions to the Constitutional Court with the proposals on verification of the constitutionality of by-law enforceable enactments.
III
The Constitutional Court has continued constructive co-operation with all international organizations the aims of which shall meet the principles enshrined in the Constitution of our country. The Constitutional Court of the Republic of Belarus notes that in 2001 the Constitutional Courts of Azerbaijan, Georgia, Moldova, Ukraine have joined the Conference of the Constitutional Court of new democracies where in 1997 the Constitutional Court of the Republic of Belarus was a founder jointly with the Constitutional Courts of Armenia, Kazakhstan, Kyrgyzstan, Russian Federation, Tajikistan. Representatives of the Constitutional Court took part in many of international conferences, seminars, meetings in Belarus and abroad and that made it possible to share the opinions with foreign colleagues on actual issues of the constitutional legal procedure and promoted the improvement of mutual understanding among the representatives of the bodies of constitutional jurisdiction.
The Constitutional Court on 31 May - 1 June 2001 has held in the city of Minsk under the support of the Head of the State III International Scientific and Practical Conference of the bodies of constitutional control on the subject of "Implementation of the norms of international law into national legislation: theory and practice" in which representatives of 12 states took part.
Discussions which took place at the Conference were contributory to the development of the forms and methods of constitutional justice, the protection of human rights and freedoms, the strengthening of the authority and confidence in the Republic of Belarus.
At the modern stage of development of the state and of the society the Constitutional Court of the Republic of Belarus in the process of its constitutional procedure is constantly guiding by the provisions of international covenants on human rights and conventions concerning the protection of fundamental human rights and freedoms, by other international legal documents. In its activities the Constitutional Court uses the practical experience of the bodies of constitutional control of foreign states, as well as of the European Court of Human Rights.
While adopting its decisions the Constitutional Court equally with universal international legal acts is actively using European international acts, including European Convention for the Protection of Human Rights and Fundamental Freedoms that shall promote strengthening the Republic of Belarus as a democratic social state ruled by law.
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The Constitutional Court while exercising its duties vested therewith on having control over the constitutionality of the enforceable enactments in the state, following the principle of supremacy of the Constitution and its direct effect, has considered establishment of the constitutional legality in law creation and law application, contribution to the development of legal system of the state as its main goal. At the same time, the Constitutional Court has proceeded from the fact that human rights and freedoms should determine the sense, the content and application of the enforceable enactments, activities of the legislative and the executive branches of power and should be secured by the proper justice. Only taking by the state, as it is required by the Constitution, of all the measures for creation the domestic and international order necessary for the exercise in full of the rights and liberties of the citizens of the Republic of Belarus which are enshrined by the Constitution and the laws, its adherence to the values common to all mankind can secure civil consent, stability of principles of sovereignty of the people and the state ruled by law.
The Present Message was adopted at the session of the Constitutional Court of the Republic of Belarus of 12 February 2002.
Presiding Officer —
Chairman of the
of the