12 November 2001 № J-129/2001
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, G.B. Shishko, V.Z. Shuklin
with participation of representatives:
of the Council of Ministers of the Republic of Belarus - I.P. Romanovich; of the House of Representatives of the National Assembly of the Republic of Belarus - I.A. Kibaka, T.N. Kravchenko; of the Council of the Republic of the National Assembly of the Republic of Belarus - V.V. Bury
has examined in open Court session the case "On the conformity between the Constitution and provision of point 3 of part four of Article 4 of the Criminal Code of the Republic of Belarus and on the based on it practice of application of the notion of official on the feature of commitment of juridically significant acts".
The Court session was attended by: V.N. Ptashnik - Deputy Chairman of the Supreme Court of the Republic of Belarus; E.A. Smirnov - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; A.S. Petrash - First Deputy Minister of Justice of the Republic of Belarus.
The proceedings have been brought by the Constitutional Court of 17 October 2001 on the proposal of the Council of Ministers of the Republic of Belarus on the grounds of Article 116 of the Constitution, Articles 5, 6 and 11 of the Law "On the Constitutional Court of the Republic of Belarus", Articles 43 and 48 of the Rules of Procedure of the Constitutional Court of the Republic of Belarus. Provision of point 3 of part four of Article 4 of the Criminal Code of the Republic of Belarus (hereinafter referred to as the CC), under which officials shall be persons authorized in the established order to commit juridically significant acts, as well as the practice of application of the notion of official which is based on the given provision were subject to verification.
The proposal of the Council of Ministers made as the result of address of the Minister of Internal Affairs shall signify that the CC contains no definition of the notion of official on the feature of commitment of juridically significant acts, there is no clear its explanation in point 4 of Ruling of the Plenum of the Supreme Court of the Republic of Belarus of 4 June 1993 No. 4 "On judicial practice on the cases on misuse of authority or misuse of one's office, exceeding of one's authority or exceeding one's official powers, negligence of one's official duties, official forgery".
Consequently, investigation and judicial practice shall not ensure uniform approach towards definition of the notion of an official on the specified feature, in particular, there is no unique solution of the issue on whether lecturer of higher and specialized secondary education institutions, who take exams or tests and who get from the students remuneration for the positive marks of their knowledge, are subject to criminal liability. Having heard judge-speaker, A.A. Sarkisova, representatives as litigants, expert A.I. Lukashov - Ph. D., Academy of the Ministry of Internal Affairs of the Republic of Belarus, Candidate for legal sciences, senior lecture, analyzed the provisions of the Constitution, the Criminal Code, other enforceable enactments of the Republic of Belarus, studied the practice of application of the norm of the CC under verification and other materials of the case, the Constitutional Court found the following.
Under part four of Article 116 of the Constitution the Constitutional Court on the recommendations of the bodies specified therein shall produce, in particular, rulings on the constitutionality of the laws, as well as the acts of the Supreme Court of the Republic of Belarus. Article 4 of the CC contains a number of notions which are given, as it follows from part one of the Article in question, with a view to unique and precise apply of the terms used in the Criminal Code. Part four of that Article contains the list of persons who should be referred to officials.
Officials shall be: 1) representatives of power, i.e. deputies of the House of Representatives of the National Assembly of the Republic of Belarus, members of the Council of the Republic of the National Assembly of the Republic of Belarus, deputies of local Councils of deputies, as well as state officials who shall have the right within their competence to give instructions or orders and to take decisions as regards the persons who are not subordinated to them in service; 2) representatives of the public, i.e. persons who are not in state service but who are empowered in the established order to be a representative of power while performing the duties on safety of public order, prevention of offences, on administration of justice; 3) persons who hold constantly or temporary or according to special authority posts in the establishments, organizations or at enterprises (irrespective of the forms of ownership), in Armed Forces of the Republic of Belarus, in other forces or military units of the Republic of Belarus which are relevant to the performance of organizational-administrative or administrative-economic duties or persons who are authorized in the established order to commit juridically significant acts.
The given norms as a whole shall reproduce the provisions of the note to Article 166 of the CC of 1960 the wording of which had been amended by the Law of 15 June 1993 "On making alterations and addenda into certain legislative acts of the Republic of Belarus" enforced of 22 July 1993. In accordance with that Law officials had become to be, equally with other persons, persons authorized in the established procedure to commit juridically significant acts.
The Law in question has practically extended the circle of persons who are subject to criminal liability, since officials had also become persons who, in fact, are not such, but who are equated with them due to commitment by them of juridically significant acts. The Constitutional Court deems that such a legislative solution of the issue is in line with the Constitution. It is conditioned by the constitutional (Article 59 of the Constitution) obligation of the State to take all measures at its disposal to create the domestic and international order necessary for the exercise in full of the rights and liberties of the citizens of the Republic of Belarus.
The lawmaker with a view to protect the rights, liberties and interests of citizens from criminal encroachments thereon, to secure prevention of various abuses in service, to suppress corruption phenomena shall have the right to specify the circle of persons with special features of a subject of crimes against the interests of service, as well as to determine the measures of criminal liability for those crimes. At the same time, while applying the provision of point 3 of part four of Article 4 of the CC, there should be secured the approach specifying uniform investigation and judicial practice on the qualification of the committing by the officials deeds and calling them to the criminal liability in instances of the presence in a deed of corpus delicti stipulated in the CC.
The Constitutional Court emphasizes that as far back as before adoption of the Law of 15 June 1993 the Plenum of the Supreme Court in its Ruling of 4 July 1993 No. 4 "On judicial practice on the cases on misuse of authority or misuse of one's office, exceeding of one's authority or exceeding one's official powers, negligence of one's official duties, official forgery" (with further alterations and addenda thereto) has specified the following: "Employees of state, co-operative and public organizations, enterprizes, establishments, who perform purely professional or technical duties, shall not be officials.
Those employees may be subject of crimes against the interests of service in instance if, equally with performance of professional or technical duties they are vested with the performance of organizational-administrative or administrative-economic duties or commitment of juridically significant acts (for example, a physician - for misuse of his office connected with the issue of sick-list (medical certificate of unfitness for work) or with the participation in the work of industry injury assessment board, enlistment commissions; lecturer - for violation of duties vested in her/him as in a member of a qualification or examining board; teacher or educator - for non-performance of vested in her/him duties on guaranteeing order and safety for holding arrangements and studies)". That explanation has oriented the practice to the restricting understanding of an official on the feature of commitment of juridically significant acts. In practice there have been no securing of the uniform approach to the solution of the issue on whether lecturers (teachers) of higher or secondary special education institutions who take course exams or tests are officials on the feature of commitment of juridically significant acts.
By getting remuneration for positive marks of knowledge of students at course exams or tests in one instance they are subject to criminal liability for receiving bribe. In other analogous instances those persons are not recognized to be officials and due to that are not subject to criminal liability whereas the absence of corpus delicti in question. For example, court of law of Lenin district of the city of Grodno has convicted of 12 October 2000 citizen M. under part one of Article 169 of the CC of 1960 for the fact that he, as a lecturer of Grodno branch of commercial University of Management, had got a bribe of the rate of 200 USA dollars for positive solution of the issue on sitting of a student for the test in family and international law. The court of law of Central district of the city of Gomel has convicted citizen B. under part two of Article 169 of the CC of 1960 for the fact that she, as a lecturer of economic subjects of Gomel Polytechnics College, during the period since 6 till 18 March 2000 had got from the students bribes for the solution of the issue on positive sitting for the examination in "Economics".
The court of law of Soviet district of the city of Minsk has acquitted of 21 April 2000 citizen S. on charge of the crime under part two of Article 169 of the CC, who, as a senior lecture of the department of physical training and sport of the Belarusian State Polytechnics Academy, during the period since December 1999 till January 2000, had repeatedly extorted and got from the students money as bribes, as well as property benefit for favourable solution of the issues within her competence.
The conclusion of the court of law has been based on the fact that citizen S. is not an official and, therefore, she may not be responsible for receipt of the bribe. By ruling of the judicial board on criminal cases of Minsk city court of law of 13 June 2000, ruling of the Presidium of Minsk city court of law of 13 September 2000 and ruling of judicial board on criminal cases of the Supreme Court of the Republic of Belarus of 22 December 2000 the court's verdict has been remained in force without alteration and the protests of the public prosecutors, which have raised the issue on repeal of the judicial rulings due to her unlawful acquittal, - without satisfaction.
Emphasizing the absence of uniform judicial practice of application of the notion of an official on the feature of commitment of juridically significant acts, the Constitutional Court deems that such a situation shall not promote securing performance by the State of the vested in it by the Constitution (Article 59) duty to take all measures at its disposal to create the domestic and international order necessary for the exercise in full of the rights and liberties of the citizens of the Republic of Belarus, shall not ensure the principle of inevitability of the responsibility of the citizens culpable commission of crimes against the interests of service, and, in particular, bribery, as well as shall violate the principle of equality of all before the law which is entrenched in Article 22 of the Constitution.
By considering the issue raised in the constitutional motion of the Council of Ministers on the fact whether lecturers of higher or specialized secondary education institutions who take course exams or tests are officials, the Constitutional Court shall be based on universally acknowledged notion of juridically significant acts, as well as on the normative acts of the Ministry of Education of the Republic of Belarus specifying the rights and obligations of lecturers and students of the aforesaid educational institutions and specifying legal consequences of non-performance of the vested in the students obligations connected with study of the subjects taught. Part four of Article 4 of the NN contains the notion of official. At the same time, if in points 1 and 2 of part four of the given Article the lawmaker uses the feature determining official as a person vested with powerful competence (representative of a power, representative of the public authorized as a representative of a power), then point 3 of the same part of the Article in question shall contain the feature determining official on the nature of the other powers exercised.
The specified point shall envisage three types of those powers: 1) performance by a person of organizational and administrative duties; 2) performance by a person of administrative and economic duties; 3) commitment of juridically significant acts to which a person is authorized in the established order. All these types of powers, which are features of official in the sense attached thereto by the criminal law, shall be independent features which, as a rule, are not connected with one another. At the same time, commitment of organizational-administrative or administrative-economic duties is connected with the commitment of juridically significant acts, however, performance of the latter shall be an independent ground for referring of one or another employee who is not vested with organizational- administrative or administrative-economic duties to the category of officials.
The Constitutional Court notes that juridically significant acts shall be the acts after the commitment of which there may be legal consequences as beginning, alteration or termination of law relations. As applied to the given notion stipulated in the CC, juridically significant acts - acts of persons authorized to commit them in the established procedure. The presence of the given feature shall suppose that a person holds constantly or temporary in organization, establishment, enterprise certain post (executes certain work) and due to that in concrete instances may commit juridically significant acts or be subject to perform her/his powers under special competency. Thus, the persons authorized in the established procedure to commit juridically significant acts in the sense of the criminal law - shall be the persons who hold constantly or temporary posts in the organizations (irrespective of the forms of ownership) or who perform the vested in them obligations under special competence and who commit those acts as a result of which there shall or may come juridically significant consequences as beginning, alteration or termination of law relations, where other persons are subjects thereof.
Therefore, the Constitutional Court emphasizes that both lecturers who shall perform their duties as members of qualified and examining boards, as it was cited as an example in explanation of the specified issue in point 4 of ruling of the Plenum of the Supreme Court of 4 June 1993 No. 4, and lecturers who shall take course exams or tests should be referred to those persons who are authorized to commit juridically significant acts. Putting by the lecturers of the marks at course exams, as well as positive or negative assessment of knowledge of students by taking a test and that is subject to be fixed in official documents (examining list, students' record-books etc.) in one instance shall be direct and immediate ground for coming juridically significant consequences, i.e. beginning, alteration or termination of law relations (for example, giving the right to receive grants). In other instances those acts shall be one of the necessary (obligatory) elements of the ground for coming consequences in question, i. e, shall exert influence on beginning, alteration or termination of law relations in total with other circumstances as a part of single whole (a student shall be subject to dismissal from a higher education institution in case of the presence of the failure to comply with education program requirements or failure to pass exams during session period in three or more subjects).
There are marks at exams and tests which shall estimate the knowledge of students upon which there shall depend solution of the issues on their further education in relevant education institution, on giving them the right to receive grant, honour diploma which is the ground for wage increase for final-year students of certain higher education institution while starting work, on pay cuts for education in non-governmental education institutions etc. The aforespecified shall signify that the lecturer of higher education or specialized secondary education institutions authorized in the established order to take exams or tests shall be subjects of juridically significant acts and due to performance of the specified powers shall fall under the features of an official stipulated in point 3 of part four of Article 4 of the CC.
The Constitutional Court pays also attention to the judicial practice of the Russian Federation on qualification as bribe of the actions of the lecturers who receive remuneration for positive assessments of knowledge of the students at course exams. That practice took place in spite of the fact that the Criminal Code of the Russian Federation shall not envisage to be the feature of an official the commitments by her/him of juridically significant acts.
The lecturers are considered directly to be as officials. At the same time, the Constitutional Court notes that the issue on calling to criminal liability for the crimes against the interests of service of the specified persons shall be solved in each concrete case taking into account the presence or absence of other features of corpus delicti, as well as of all the circumstances of the case effecting the estimation of the nature and the degree of social danger of a deed and effecting the solution of the issue on the presence or absence of an unimportant deed under part four of Article 11 of the CC.
Based on the aforestated and guided by Article 116 of the Constitution, Articles 5, 6, 9, 11, 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To find the provision of point 3 of part four of Article 4 of the Criminal Code of the Republic of Belarus, according to which persons authorized in the established order to commit juridically significant acts, to be in conformity with the Constitution of the Republic of Belarus.
2. To note contradictoriness of judicial practice on calling to criminal liability of the lecturers of higher and specialized secondary education institutions due to receiving by them rewards for positive estimation of knowledge of students at course exams and tests, where in one instance they are subject to criminal liability for receiving bribe, and in other analogous situations those persons are not considered to be subjects of the given crime.
3. To pay attention of the Supreme Court of the Republic of Belarus to the necessity of securing within the whole state of the uniform approach to the application of the norm of point 3 of part four of Article 4 of the Criminal Code of the Republic of Belarus and bearing in mind that the norm in question shall make it possible to call to criminal liability the lecturers of higher and specialized secondary education institutions for receiving by them of unlawful remuneration from the students. For the Supreme Court of the Republic of Belarus to bring its ruling of 4 June 1993 No. 4 "On judicial practice on the cases on misuse of authority or misuse of one's office, exceeding of one's authority or exceeding one's official powers, negligence of one's official duties, official forgery" into strict line with the provision of point 3 of part four of Article 4 of the Criminal Code of the Republic of Belarus. In the instance, if judicial bodies by applying the given norm of the Criminal Code since 1993 and, as a rule, convicting the specified persons for receiving bribe consider it necessary to exclude criminal liability of those persons and, thereby, to alter the judicial practice taken place in that field or consider it necessary to fix in the law the features of juridically significant acts (coming of juridical consequences, public and law nature etc.), or to envisage for those persons other criminal or other juridical responsibility, they should initiate in the established order amendments to the effective legislation.
4. To publish the present Judgment within the period specified in the legislation in "Narodnaya gazeta" and "Zvyazda", as well as in National register of legal acts of the Republic of Belarus and in "Vesnik Kanstytutsijnaga Suda Respubliki Belarus".
5. The present Judgment shall come into legal force from the day of its proclamation, is final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the