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 Supreme Court of the Republic of Belarus - I.N. Minets has examined in open Court session the case "On the conformity between the Constitution and provisions of points 20 and 21 of ruling of Plenum of the Supreme Court of the Republic of Belarus of 10 April 1992 No. 1 "On judicial practice on cases on bribery".

The Court session was attended by: P.P. Miklashevich - First Deputy Chairman of the Supreme Court of the Republic of Belarus; A.V. Ivanovski - Deputy Procurator-General of the Republic of Belarus; A.S. Petrash - First Deputy Minister of Justice of the Republic of Belarus.

The proceedings were 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.

Under part four of Article 116 of the Constitution of the Republic of Belarus the Constitutional Court on the recommendations of the specified in the given Article bodies shall produce rulings, in particular, on the constitutionality of the acts of the Supreme Court of the Republic of Belarus. Provisions of points 20 and 21 of ruling of Plenum of the Supreme Court of the Republic of Belarus of 10 April 1992 No. 1 "On judicial practice on cases on bribery" (with alterations of 18 January 1993, of 18 December 1997 and of 29 March 2001).

According to point 20 of the given ruling "release from criminal liability under the reasons of extortion of a bribe or of voluntary statement about giving a bribe (note to Art. 431 of the Criminal Code of the Republic of Belarus) shall not exclude criminal nature of actions committed previously by a bribe-giver.

Therefore, in those instances he/she shall not be considered to be a crime victim. Due to that, money and other values - subject of a bribe shall be liable to transfer to the receipt of the state". According to point 21 of the specified ruling "withdrawn money and values which are subject of a bribe and which were found to be material evidence shall be liable to transfer to the receipt of the state on the grounds of Article 98 of the Criminal Code of Procedure. If money and other values passed as bribe had not been disclosed, money equivalent of unfoundedly acquired benefit shall be liable to recover against the accused to the receipt of the state. Money and other values, if they had been mistakenly returned to a bribe-giver, may be recovered against him to the receipt of the state under the suit of the public prosecutor in the procedure of civil justice".

The proposal of the Council of Ministers, made as a result of address of the Ministry of Internal Affairs, has put the issue on the verification of the constitutionality of the provisions of the specified points of ruling of Plenum of the Supreme Court of the Republic of Belarus of 10 April 1992 No. 1.

In the opinion of the initiator of the proposal they are not based on the norms of criminal legislation and criminal legislation of procedure, shall run into unequal position the persons who gave a bribe, but who shall be released from criminal liability due to their active contriteness. In the opinion of the Council of Ministers, transfer to the receipt of the state of the subject of a bribe which is owned by the person - bribe-giver, but who shall be released from criminal liability under the note to Article 431 of the Criminal Code of the Republic of Belarus (hereafter referred to as the CCP the CP) and persons who committed other offences are also subject to be released from criminal liability due to the extortion of a bribe or due to voluntary statement of a guilty person about giving a bribe shall not be conducive to disclosure of such a dangerous crime as bribe-taking. 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, the Criminal Code of Procedure of the Republic of Belarus, ruling of Plenum of the Supreme Court of the Republic of Belarus of 10 April 1992 No. 1 "On judicial practice on cases on bribery", investigation and judicial practice, as well as other materials of the case, the Constitutional Court found the following.

According to the note to Article 431 of the CC the person - bribe-giver shall be released from criminal liability, if regards him it took place extortion of a bribe or if that person after giving a bribe has made voluntary statement about the deed. Part six of Article 61 of the CC shall envisage application of special confiscation which shall be forced without compensation withdrawal to the state property of the instruments and means of the crime owned by the convict; things withdrawn from the turnover; property acquired by a criminal method, as well as objects which are directly connected with the crime, if they are not liable to be returned to the victim or to another person. Issues of confiscation shall be also regulated by the criminal legislation of procedure.

In particular, according to Article 98 of the Criminal Code of Procedure of the Republic of Belarus (hereafter referred to as the CCP) the sentence, definition or ruling on discontinuance of the case must resolve the issue on material evidence. In this case: 1) instruments of crime shall be liable to confiscation or shall be transferred to respective institutions or definite persons or shall be destroyed; 2) things prohibited for circulation shall be liable to transfer to the respective institutions or destroyed; 3) things that have no any value and that cannot be used shall be liable to destruction and in case of petition by the interested persons or institutions may be given out to them; 4) money and other values acquired by a criminal method shall be, on adjudication of the court, liable to transfer to the receipt of the state; other things shall be given out to legal owners and, when the latter are not established, shall be transferred to the property of the state. In case of a dispute on the ownership of these things it shall be resolved according to the procedure of civil justice; 5) documents that represent material evidence shall remain in the case files during the entire period of its keeping or handed over to the persons or institutions concerned.

By comparing the points of ruling of Plenum of the Supreme Court of the Republic of Belarus of 10 April 1992 No. 1 under verification with the specified above norms of the criminal legislation and the criminal legislation of procedure, the Constitutional Court emphasizes that point 21 of the given ruling shall contain general rule determining the lot of the subject of a bribe as material evidence.

That rule shall cover the persons who committed the crime as both bribe-taking and bribe-giving. While formulating in the given point the provision that the withdrawn money and other values which are the subject of a bribe and found to be material evidence, shall be liable to transfer to the receipt of the state, Plenum of the Supreme Court has been based on Article 98 of the CCP. However, according to point 4 of the given Article money and other values acquired by a criminal method shall be, on adjudication of the court, liable for compensation of criminal injury.

They shall be transfered to the receipt of the state only if a person, who has incurred injury, is unknown. In this connection the Constitutional Court emphasizes that the note in point 21 of ruling of Plenum of the Supreme Court of the Republic of Belarus of 10 April 1992 No. 1 only to Article 98 of the CCP is insufficient since under that note there is no direct necessity to transfer the subject of a bribe as material evidence in all cases to the receipt of the state.

At the same time, the Constitutional Court underlines inconsistency of provisions of point 4 of Article 98 of the CCP with part six of Article 61 of the CC according to which the property acquired by a criminal method shall be liable to forced without compensation withdrawal to the state property. Therefore, the Constitutional Court comes to the conclusion that the provision of point 21 of ruling of Plenum of the Supreme Court of 10 April 1992 No. 1 though it is not directly follows from Article 98 of the CCP, to which the note is given in the specified point, but, in reality, it is not at variance with the law as a whole, since part six of Article 61 of the CC shall establish the general rule on tranfer of the property acquired by a criminal method to the receipt of the state.

That property, in particular, shall be money and other values passed on a bribe-taker who is subject to be convicted on adjudication of the court. Plenum of the Supreme Court in point 20 of the specified ruling has formulated special provisions concerning the person - bribe-giver, but who is released from criminal liability due to the fact that there was extortion of a bribe as regards that person or the person made voluntary statement on the deed after giving a bribe.

According to the note to Article 431 of the CC the person - bribe-giver shall be subject to release from criminal liability in cases: 1) there was extortion of a bribe as regards that person; 2) in instance of active contriteness, i.e. when the person made voluntary statement on the deed after giving a bribe. Analyzing first ground for release from criminal liability of the person - bribe-giver, the Constitutional Court notes that extortion of a bribe means the demand raised by an official which is coming along with by threat of actions which may do damage lawful interests of a citizen or his/her next of kin or put him/her under the conditions where he/she is forced to give a bribe in order to prevent harmful consequences for law protected interests. Because of extortion of a bribe a person may find himself under the conditions when he/she, by sacrificing his/her own material values, is forced to agree to give a bribe in order to protect more significant for him/her interests.

Such a situation in certain instances is considered to be as extreme necessity which, under Article 36 of the CC, shall exclude criminal nature of a deed. In those instances the specified person should not be considered to be the person who committed a crime, and, therefore, legal consequences of a deed as confiscation of money or other values passed on as a bribe to an official may not be applied to that person. Due to that the person shall have the right to pretend to return of the subject of a bribe. The Constitutional Court emphasizes that judicial practice should be based on the specified provisions of the criminal legislation. By examining the second ground for release from criminal liability of the person - bribe-giver, the Constitutional Court emphasizes the following.

According to part one of Article 88 of the CC the person who for the first time committed a crime of no big social danger may be released from criminal liability if that person after commitment of the crime pleaded voluntary guilty, promoted actively crime disclosure, recovered damages caused, or in another way made amends for (atoned) harm.

Those actions of a person who is guilty of a crime shall make on the basis thereof active contriteness and the presence of which may be the ground for release him from criminal liability for the crime of no big social danger. Part two of the given Article shall envisage release from criminal liability of the person who committed a crime of other category only in instances specially specified in an Article of Special part of the CC, but under the conditions specified in part one of Article 88 of the CC, i.e. while committing the crime for the first time, voluntary pleading guilty, active promotion for crime disclosure, recovery of damages caused, or in another way made amends for (atoned) harm as a result of a crime.

In that connection the Constitutional Court emphasizes that since bribe-giving presupposes no material loss which is subject to be compensated and there is no factual harm which is subject to be amended (atoned), the criminal law shall make it possible to release the person - bribe-giver from criminal liability only in instance of his voluntary statement on the deed and that shall assume active promotion of that person of crime disclosure. However, active contriteness of a guilty person shall not exclude criminal nature of a deed as bribe-giving and, due to that, a bribe-giver may not be found to be a crime victim who is subject to material loss inflicted thereon. In that particular case a person shall pass on money or other values voluntarily for a bribe-taker. Since neither criminal legislation nor criminal legislation of procedure specify peculiarities determining the lot of the subject of a bribe in instance of voluntary statement about giving a bribe, that issue shall be solved in accordance with general rules of part six of Article 61 of the CC.

On the grounds of the stated above the Constitutional Court consider it to be lawful the provision of point 20 of ruling of Plenum of the Supreme Court of 10 April 1992 No. 1 which shall specify the lot of the subject of a bribe as regards the person - bribe-giver but who made the statement about the deed or with respect to whom it took place extortion of a bribe in the absence of extreme necessity.

The Constitutional Court shall also not exclude other approaches of the lawmaker to the solution of the issue concerning the subject of a bribe in case of active contriteness of the person - bribe-giver and specify the following.

Article 22 of the Constitution shall proclaim the principle of equality of all before the law. The given principle shall not exclude the right of the lawmaker to establish peculiarities concerning responsibility of certain categories of persons. The lawmaker shall also have the right to stipulate both the norms extenuating the responsibility and the norms releasing guilty persons from criminal responsibility under different grounds. Among the grounds for releasing from criminal liability the law shall envisage active contriteness which is used by the lawmaker, first of all, as the instrument stimulating disclosure of crimes, as well as incrimination of guilty persons. Such an approach of the lawmaker is based on the requirements of Article 59 of the Constitution under which the State shall 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. By means of legislative broadening of the sphere of application of active contriteness the State shall create optimum conditions for disclosure of crimes, incrimination of guilty persons.

One of the special cases of application of the specified institute shall be the norm of the note to Article 431 of the CC in accordance with which the person - bribe-giver shall be subject to release, if after bribe-giving that person has made voluntary statement about a deed. By safeguarding the rights and liberties of the citizens of the Republic of Belarus the Constitution of the Republic of Belarus enshrines in Article 23 the possibility for restriction of personal rights and liberties only in the instances specified in law, in the interest of national security, public order, the protection of the morals and health of the population as well as rights and liberties of other persons.

The Constitutional Court shall also take into consideration the universally acknowledged provisions in the international law under which degree of any restriction of the law should be strictly proportionate to the needs or to the highest interest, for the sake of which the given restriction is introduced. Practice signifies that withdrawal and transfer to the receipt of the state of money and other values which previously were the property of the person - bribe-giver, but who is subject to be released from criminal liability due to active contriteness, shall not stimulate persons, who gave a bribe, for voluntary statement about a deed and due to that shall not promote disclosure more dangerous crimes as bribe-taking.

In the opinion of the Constitutional Court, persons, with respect to whom it took place extortion of a bribe, shall have more mild approach thereto. With the stated above taken into account, the Constitutional Court shall not exclude the possibility to introduce into the legislation the norm which shall make it possible for the court of law in special cases on the grounds of all-round estimation of concrete circumstances of the case, equally with the withdrawal of money and other values received by an official as a bribe, to solve the issue on their return to a bribe-giver who is subject to be released from criminal liability on the grounds of the note to Article 431 of the CC and, first of all, if with respect of those person it took place withdrawal of a bribe.

The Constitutional Court based on Article 11 of the Law "On the Constitutional Court of the Republic of Belarus" shall also emphasize that in practice there are instances of transfer to the receipt of the state of money or other values owned by the persons who previously, before their passing on a bribe-taker, make voluntary notification of law enforcement bodies about extortion from them a bribe and then participate in operation actions under control of those bodies in order to incriminate bribe-takers.

The Constitutional Court deems that practice to be unlawful. The specified persons commit no crimes and, due to that, money and other values owned by them and used for the specified purposes shall be subject to be returned to their owners. In that connection the Constitutional Court shall also underline that the development of judicial practice would be secured in necessary direction, if ruling of Plenum of the Supreme Court of 10 April 1992 No. 1 shall contain, equally with general specification on withdrawal of the subject of a bribe into the receipt of the state, the specification on inadmissibility to confiscate money and other values passing on in the process of operative and investigation actions.

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 points 20 and 21 of ruling of Plenum of the Supreme Court of 10 April 1992 No. 1 "On judicial practice on cases on bribery" in part of explanations they contain to be in conformity with the norms of the Criminal Code of the Republic of Belarus. To note that transfer to the receipts of the state money and other values passed on as a bribe by the person with respect to whom it took place extortion of a bribe should not be covered the persons who found themselves in extreme necessity and who were forced to give a bribe.

2. To note unlawfulness of the practice of the transfer to the receipt of the state of money or other values owned by the persons who previously, before their passing on a bribe-taker, make voluntary notification of law enforcement bodies about extortion from them a bribe and then participate in operation actions under control of those bodies in order to incriminate bribe-takers. The specified persons commit no crimes and, due to that, money and other values owned by them and used for the specified purposes shall be subject to be returned to their owners.

3. To propose the National Assembly of the Republic of Belarus to remove from inconsistency of the provisions of Article 98 of the Criminal Code of Procedure of the Republic of Belarus and Article 61 of the Criminal Code of the Republic of Belarus regarding money and values acquired by a criminal method and, bearing in mind the fact, that there is no exclusion of the possibility to introduce into the legislation the norm which shall make it possible for the court of law in special cases to solve the issue on their return to a bribe-giver who is subject to be released from criminal liability on the grounds of the note to Article 431 of the Criminal Code of the Republic of Belarus.

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 Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich