11 January 2002 № D-135/2002
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, G.B. Shishko, V.Z. Shuklin, having examined on the basis of Article 40 and part one of Article 116 of the Constitution of the Republic of Belarus complaint of a convicted citizen and his lawful representative on the issue of non-application of amnesty, found the following.
Article 10 of the Law of the Republic of Belarus of 14 July 2000 "On amnesty of certain categories of persons who committed crimes" has envisaged shortening (mitigation) of the term of punishment for the imprisoned convicts. Under Article 14 of the given Law the convicts with respect to whom on the day of entrance of the law on amnesty the sentences have been already effective are within the force of Article 10 in question.
The complaints to the Constitutional Court shall signify that in practice there is non-application of amnesty to the convicts with respect to whom the sentences have been already effective on the day of entrance of the law on amnesty and then those sentences were subject to revision in the procedure of supervision. The Constitutional Court emphasizes that a convict, with respect to whom a sentence has already become effective on the day of entrance into legal force of the specified Law, shall have the right to amnesty in spite of the fact, that later on the sentence or the rulings delivered thereon of cassation judicial instances is subject to revision in the procedure of supervision. In the opinion of the Constitutional Court the arised right of the convict shall not be forfeited due to the fact, that his right is subject to revision in the procedure of supervision when, as a rule, mistakes made by the courts of law are removing, but execution of a verdict is not suspending and a convict shall continue to serve the sentence passed on by the court of law.
The Constitutional Court underlines that the Court has already delivered its decision "On the right to amnesty of the convicts with respect to whom verdicts have taken no effect due to their cassation (protest)". By motivating its position on the specified issue the Constitutional Court has emphasized the following. Under Article 21 of the Constitution safeguarding the rights and freedoms of the citizens of the Republic of Belarus shall be the supreme goal of the State. The Constitution proclaims the principle of equality of all before the law and the right without any discrimination to equal protection of their rights and legitimate interests (Article 22).
Under Article 60 of the Constitution everyone shall be guaranteed protection of one's rights and freedoms by a competent, independent and impartial court of law within time periods specified in law. Under part three of Article 115 of the Constitution the parties and the persons have the right to appeal against rulings, sentences and other judicial decisions. Article 8 of the Universal Declaration of Human Rights establishes that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. In the given decision the Constitutional Court has not excluded the right to amnesty of the convicts with respect to whom the verdicts delivered by the courts of first instance have not become effective on the day of coming into legal force of the law on amnesty due to the fact, that their cassations have not been examined during long period of time for reasons beyond their control.
The Constitutional Court has noted that the specified persons are in unequal position in comparison with the convicts whose cassations have been examined without delay, or with the convicts who have not used at all their right to cassation against the verdict of the court of law. The given arguments are largely referred to the instances when the passed verdicts have become effective on the day of entering into legal force of the law on amnesty, but later on the convicts have used their right to judicial protection by means of making supervisory appeal. Non-application of amnesty to those persons shall put them in unequal position with the convicts who have not used their right to appeal against the verdict in the procedure of supervision.
Moreover, non-application of amnesty in instances, when verdicts are subject to revision, in practice shall restrict the right of convicts to judicial appeal of the verdicts, since they may refuse from exercise of that right only for the sake of the fact, that on the day of entering into legal force of the law on amnesty they are not deprived from the right to be applied to them of the law in question. In the opinion of the Constitutional Court for application of amnesty to the convicts, with respect to whom the verdicts or rulings of cassation instances were subject to revision in the procedure of supervision, there is no necessity for additional legislative decision. Those persons shall have the right to amnesty, since on the day of entering into legal force of the law on amnesty the verdicts delivered with respect thereto had legal force.
The Constitutional Court also deems it necessary while adopting in future the laws on amnesty to envisage their application also to the persons who committed offences before enforcing the specified laws, but the verdicts with respect to whom have no legal force on the day of entering into legal force of the laws on amnesty.
Guided by Article 40, part one of Article 116, Articles 7, 11, 36, 38, 40, 401 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To consider that persons, with respect to whom the delivered verdicts have become effective on the day of entering into legal force of the law on amnesty, shall have the right to amnesty also in those instances when later on there is an inspection of those verdicts in the procedure of supervision.
2. To propose the National Assembly of the Republic of Belarus while adopting laws on amnesty to envisage their application also to the persons who committed offences before enforcing the specified laws, but the verdicts with respect to whom have no legal force on the day of entering into legal force of the laws on amnesty.
3. The present Decision shall come into legal force from the date of its adoption.
4. To publish the present Decision in accordance with legislation.
Presiding Officer —
Chairman of the
of the