The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, Shuklin V.Z., having examined on the basis of Article 40, part one of Article 116 of the Constitution of the Republic of Belarus collective application of citizens concerning constitutionality of legal regulation of the issues of keeping persons in special custodial reception centres under the bodies of internal affairs, found the following.

1. Organization and procedure of activities of special custodial reception centres shall be regulated by Provision on special custodial reception centres under the bodies of internal affairs (hereafter - Provision), approved by order of the Ministry of Internal Affairs of the Republic of Belarus of 18 October 1999 No. 206 (National register of legal acts of the Republic of Belarus, 2000, No. 16, 8/1516). Special custodial reception centres under the bodies of internal affairs (hereafter - special custodial reception centres) according to point 1 of the Provision are establishments, in particular, for keeping persons who are subject to administrative detention for commitment of offences, and for which the court of law may inflict a penalty as administrative arrest, as well as for the persons who are subject to administrative arrest. In case of impossibility to create special custodial reception centre the specified persons may be contained in temporary isolation wards of the bodies of internal affairs in specially allotted thereto cells with all custody regime conditions envisaged for special custodial reception centres (point 5 of the Provision).

According to point 15 of the Provision "from the persons who are subject to administrative detention for commitment of offences, and for whom the court of law may inflict a penalty as administrative arrest, as well as from the persons who are subject to administrative arrest and who are in a special custodial reception centre, under the established procedure there shall be collected into the relevant budget the cost of keeping and food for each day of their being in a special custodial reception centre at the rate, unless otherwise is specified by legislative acts, fixed by the bodies which adopted decision on creation of a special custodial reception centre. Forced recovery of the specified sum shall be carried out at accounts of a special custodial reception centre (Addendum 1) in terms, which shall not exceed limitations, fixed by the civil legislation of the Republic of Belarus. Point 1.6 of the Rules of keeping persons putting into special custodial reception centres under the bodies of internal affairs (Addendum 5 to the Provision) shall envisage that from administrative arrestees (detainees) for each day of being in a special custodial reception centre there shall be collected unquestionably the cost of keeping and food at the rate fixed by local executive and administrative bodies. In case of presence of monetary funds the necessary sum or part of it shall be recovered in a special custodial reception centre with relevant drawing up of documents. An accountant (secretary-accountant) shall be entrusted with the registration of the persons, for whom after release from a special custodial reception centre there shall be made out an account for pay of sums for keeping and food under point 57 of the Provision. Writing non-recovered sums for keeping and food off insolvents shall be carried out once a quarter according to the conclusion of the head of a special custodial reception centre which shall be agreed with the relevant financial body of a local executive committee on the grounds of the act of the bailiff on impossibility of payment of debts (paragraph two of point 15 of the Provision).

In accordance with paragraph one of point 9.4 of the List of documents under which repayment of debts shall be made unquestionably on the grounds of executive superscriptions of the bodies who carry out notarial actions, approved by 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), repayment of debts on demands of the bodies of internal affairs shall be made on the grounds of the documents specifying the debts on pay for keeping and food in a special custodial reception centre or in a temporary isolation ward (as regards the persons who are obliged to make the pay in question). For the reception of executive superscription there shall be submitted the copy of an account to the amount due to the pay of a debtor with his receipt for the first copy of that account.

The cost of keeping and food for each day of being of persons in a special custodial reception centre, since otherwise is not specified by legislative acts, at present is fixed, based on the requirements of points 1 and 15 of the Provision, by Minsk city and by relevant oblasts executive committees as the bodies which are competent under the established procedure to create, reorganize and liquidate special custodial reception centres. In particular, the measure of recovery of monetary means for one day of keeping and food in united special custodial reception and distribution centre of the Department of internal affairs of Minsk city executive committee from the persons administratively arrested has been fixed by decision of Minsk city executive committee of 7 September 1995 No. 553. In practice the fixed measure shall be applied to administrative detainees. The rate of pay fixed by executive committees of oblasts for special custodial reception centres situated in their territories are differ.

2. Having analysed the norms of the Constitution, international legal acts, the Administrative Code of the Republic of Belarus, the criminal legislation of executions and other legislation, as well as the practice of their application, the Constitutional Court has come to the following conclusions. Article 22 of the Basic Law enshrines the equality of all before the law and the right of all without discrimination to equal protection of their rights and legitimate interests. The Constitution shall permit restriction of personal rights and liberties only in the instances specified in law, in the interests of national security, public order, the protection of the morals and health of the population as well as rights and liberties of other persons (Article 23).

The State by force of the requirements of the Constitution shall safeguard personal liberty, inviolability and dignity. The restriction and denial of personal liberty is possible in the instances and under the procedure specified in law (part one of Article 25 of the Constitution). Point 1 of Article 9 of International Covenant on Civil and Political Rights envisages that no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Administrative Code of the Republic of Belarus (hereafter - AC) contains norms determining the measures for securing administrative proceedings including administrative detention (Article 239 - 242), measures of administrative penalty which may be applied to a person committed an administrative offence including administrative arrest (Articles 23, 31), as well as proceedings on execution of ruling on administrative arrest (Articles 304 - 306). However, in part of regulating concrete issues of the keeping conditions of detainees, as well as persons serving administrative arrest, AC contains reference norms to other acts of legislation.

The Constitutional Court points out that in accordance with Article 102 of the Criminal Code of Executions of the Republic of Belarus which is effective since 1 January 2001 from wages and from other incomes of imprisoned convicts, with the exception of convicts specified in part six of Article 94 of the given Code, there shall be made withholdings for the recovery of the cost of food, clothes and communal and household services except for the cost of special food and special clothes. From the convicts who evade work the specified expenses shall be withhold from the funds in personal accounts.

The cost of food, clothes and communal and household services shall be recovered every month within the spendings made during the given month. Reimbursement of expenses by the convicts of their keeping should be carried out after withholding of alimony, income tax, deductions to the Fund of social protection of population under the Ministry of Social Protection and under the condition that regardless of all withholdings to a personal account there shall be entered the stipulated by the law sum of calculated wage or other incomes (respectively not less than 25 and not more than 50 per cent depending on the category of the convicts and on the type of a reformatory). Similar procedure is contained in previously effective Reformatory Code of the Republic of Belarus (Article 42).

Thus, if for the convicts who committed offences as deeds of social danger all the issues concerning withholdings, grounds for exemption from withholdings, limit sums which should be remain in personal accounts of the convicts (irrespective of kinds and amounts of withholdings) are regulated on the level of the law, then for the administrative detainees for commitment of the offences for which the court of law may not apply penalty as administrative arrest, persons who are subject to administrative arrest (arrestees) the issues of withholdings for keeping and food, pass of sums earned by arrestees by using their work, forced recovery of the cost of food and keeping shall be subject to regulation in by-laws only, and that is not in conformity with the provisions of Articles 22, 25, 26 and other of the Constitution, with the requirements of international standards as regards persons who are subject to restriction of liberty, and of the regime of their keeping, as well as with the approaches established for the persons who committed offences.

The Constitutional Court considers that it should be legislative regulation for the issues concerning not only the grounds for application or restriction of liberty including administrative detention and administrative arrest, but also specification of basic conditions of keeping (keeping regime) of persons who are subject to those measures.

3. Point 15 of the Provision envisages recovery of the cost of means for keeping and food both from persons who are administratively arrested by the court of law and from the persons administratively detained for the commitment of offences for which the court of law may prescribe a penalty as administrative arrest, i.e. the persons whose guilt has not been yet confirmed by effective ruling of the court of law. Therefore, they shall be subject to presumption of innocence and due to that keeping regime should be appropriate to their unconvicted status.

Such a conclusion the Constitutional Court shall make on the grounds of Article 26 of the Constitution, as well as norms of international acts. Thus, Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment adopted by UN General Assembly resolution 43/173 of 9 December 1988 shall make clear differentiation for notions "arrest", "detained person", "imprisoned person", "detention", "imprisonment". Principle 8 of the specified document envisages that persons in detention shall be subject to treatment appropriate to their unconvicted status. According to Article 11 of currently effective Provision on the procedure of short-term detention of persons suspected in commitment of an offence, approved by Decree of the Presidium of the Supreme Council of the USSR of 13 July 1976, for the persons detained on suspicion in commitment of an offence there shall be allotted under the established norms free food, berth and other kinds of material and household maintenance, and in instances of necessity - seasonable clothes and footwear.

Under Article 11 of the Provision on preliminary imprisonment in Byelorussian SSR, approved by Decree of the Presidium of the Supreme Council of Byelorussian SSR of 9 April 1970, imprisoned persons shall be provided under the established norms with free food, individual berth and other kinds of material and household maintenance. In instances of necessity they shall be provided with clothes and footwear of the standard pattern. In that connection the Constitutional Court deems that point 15 of the Provision in part of withholding the cost of keeping and food from the persons detained under the fact of commitment by them of an administrative offence, whose guilt has not been yet confirmed, shall not be in conformity with paragraph one of point 9.4 of the List of documents under which recovery of debts is made unquestionably on the grounds of executive superscriptions of the bodies which carry out notarial actions (in wording of resolutions of the Council of Ministers of 27 January 2000 No. 86 and of 11 October 2000 No. 1557). In accordance with the given resolution such a withholding shall be made only with respect of the persons who are subject to administrative arrest.

Thus, it is illegal to withhold the cost of food and keeping from the persons administratively detained, including those who were subject to other measures of administrative penalties (fine, correctional works etc.).

4. Analysis of the norms of the Provision regulating engagement of administrative detainees and arrestees in work and the procedure of pay for it, as well as the practice of application of the Provision in that part shall manifest the necessity to adjust legal regulation in that field of relations.

Thus, according to Article 306 of AC the persons, who are subject to administrative arrest for the offences listed in that Article, are engaged in physical work. In accordance with points 36 and 37 of the Provision engagement of administrative arrestees in work shall be carried out with their consent by the administration of special establishment through local executive and administrative bodies which specify the list of enterprises, organizations where arrestees may be engaged in work under the request of their leaders. Pay for work of the persons engaged in physical work shall be carried out under the contract concluded with economic organizations for practically performed scope of work under the norms and labour rate standards which are effective in the relevant branches of economy, or under hour paid wage rates in accordance with the legislation.

The Constitutional Court emphasizes, in particular, that the Provision shall contain no regulation of the issues connected with engagement of administrative arrestees in unpaid works, but in practice it takes place.

5. The Constitutional Court pays attention that, at present, under Article 305 of AC the term of administrative detention shall be included in the term of administrative arrest only. At the same time, the law shall not exclude the possibility for application to the administrative detainee of other measures of administrative penalty - for example, correctional works, fine. Moreover, sanctions of certain Articles of AC which shall allow under part three of Article 242 of AC administrative detention practically for the term before examination of administrative case (in particular, Article 148 of AC "Trade in undetermined places" envisages no administrative arrest as a measure of administrative penalty for the committed offence.

Criminal legislation of the Republic of Belarus stipulates the rules of including of the time period of preliminary imprisonment in the term of punishment (Article 75 of the Criminal Code). In the opinion of the Constitutional Court similar approaches may also take place while regulating the issues of imposition of administrative penalties.

6. The Constitutional Court pays attention to the necessity of using more proper names of establishments for keeping administrative detainees and administrative arrestees. Use of the term "special custodial reception centre" the Constitutional Court consider to be inadmissible.

On the basis of the abovestated and guided by Article 40, part one of Article 116, part four of Article 122 of the Constitution, Articles 1, 7, 11, 36, 38, 40, 40¹ of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court

RULED:

1. To find it 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.

2. To note 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. To propose the Council of Ministers of the Republic of Belarus before 1 January 2002 to remove from existing contradictions between the acts of the Ministry of Internal Affairs and the Government, as well as to examine 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.

3. To propose the National Assembly of the Republic of Belarus 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). At the same time, there is no exclusion of the possibility while determining legal status of the persons in question to use approaches specified in the criminal legislation of executions.

4. The present Decision shall come into legal force from the date of its adoption.

5. To publish the present Decision in accordance with effective legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich