The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, judges T.S. Boiko, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, 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 with request to verify the constitutionality of Article 13 of the Law of the Republic of Belarus of 18 July 2000 "On the entry into force of the Criminal Code of the Republic of Belarus".

Having analyzed provisions of the Constitution, the Criminal Code (hereafter - the CC), other laws of the Republic of Belarus, studied the materials of the case, as well as judicial practice, the Constitutional Court found the following. Article 24 of the CC, which was effective till 1 January 2001, had envisaged the grounds and the procedure of recognition of a person under the court's verdict to be a specially dangerous recidivist with the relevant negative consequences for a convicts. In particular, a number of Articles of its Special part have specified the commitment of offence by a specially dangerous recidivist to be aggravating circumstance, and that influenced on qualification of the deed and, as a result, it took place heightened responsibility of a guilty person within more strict sanctions.

Serving of imprisonment has been inflicted for a specially dangerous recidivists in reformatories of special regime with more strict conditions of keeping. Specially dangerous recidivists were not subject to application of the norms stipulating various types of release from punishment. Previous convictions with respect to those persons could be expunged only by the court of law on expiry of eight years from the day of the punishment served.

The CC of the Republic of Belarus adopted of 9 July 1999 and enforced of 1 January 2001 shall contain no notion "specially dangerous recidivist", but shall envisage the grounds for recognition of repeated commission of offence to be specially dangerous (part three of Article 43). At the same time, Special part of the CC shall not envisage the commission of offence by the person who committed specially dangerous repeated commission of offence to be as a qualified feature.

According to part two of Article 65 of the CC for the person, who committed specially dangerous repeated offence, there have been established more strict approach thereto by inflicting him punishment. Under Article 13 of the Law of the Republic of Belarus of 18 July 2000 "On the entry into force of the Criminal Code of the Republic of Belarus" persons recognized till 1 January 2001 to be specially dangerous recidivists according to Article 24 of the Criminal Code of the Republic of Belarus of 1960 shall be equated to the persons committed specially dangerous repeated offence (part three of Article 43 of the Criminal Code of the Republic of Belarus). Those persons shall serve sentences as imprisonment: men - in reformatories with special regime or in prison, and women - in reformatories with strict regime. That norm shall specify that the Law of 18 July 2000 equates legal status of specially dangerous recidivists to the status of persons who committed specially dangerous repeated offence, since repeated commitment by them of grave crimes or extra grave crimes, in spite of application to them of imprisonment, shall signify their heightened social danger and necessity of application to them of more strict measures of punishment with special conditions of its service.

At the same time, status of those persons is improved to a certain extent in the new CC (for example, there is no prohibition of application of conditional and ahead of time release from punishment or substitution of non-served part of punishment by more soft one, expungement of previous convictions is possible only on expiry of five years after service of punishment, and not eight years, as it was under the CC of 1960). Status of a person, who committed specially dangerous repeated offence, service by him of punishment as imprisonment under more strict conditions of keeping and other negative consequences for a convict shall entail additional deprivations and limitations to which he is subject. In the majority of instances criteria, according to which persons have been recognized to be specially dangerous recidivists, and under the new CC - to be persons, who committed specially dangerous repeated offence, are coincided therewith.

However, according to the comparative analysis of the provisions of Article 24 of the CC of 1960 and part three of Article 43 of the CC of 1999 the commitment of a number of offences listed in Article 24 of the CC may not be the ground for recognition of repeated commission of offence to be specially dangerous repeated commission of offence due to alteration by the lawmaker of the estimation of their nature and their degree of social danger. For recognition of repeated commission of offence to be specially dangerous repeated commission of offence the effective CC shall use among other criteria such a criteria as the category of the committed offence (type of offence depending on nature and degree of social danger). In accordance with part three of Article 43 of the CC, which stipulates several variants for recognition of repeated commission of offence to be specially dangerous repeated commission of offence, each of them shall require imprisonment conviction of a guilty person for the grave or extra grave crime. At the same time, certain offences listed in Article 24 of the CC of 1960 for the commitment of which a person may be subject to be recognized as specially dangerous recidivist, under the new CC are not referred to the category of grave or extra grave crimes.

That practically shall exclude the possibility of recognition of repeated commission of offence to be specially dangerous repeated commission of offence according to part three of Article 43 of the CC. For example, in accordance with point 2 of part one of Article 24 of the CC of 1960 a person could be recognized to be a specially dangerous recidivist, if he/she previously has committed once or twice theft qualifying according to the criterion of repetitiveness or the criterion of a group of persons under part two of Article 87 of the CC of 1960 (part two of Article 205 of the effective CC), and again has been subject to conviction and imprisonment for the same offence for the term of more than three years. However, in accordance with part three of Article 12 and part two of Article 205 of the effective CC theft, committed repeatedly or by a group of persons, shall be referred to the category of less grave offences.

Therefore, the commitment of those offences and imprisonment conviction for them may not be the ground for recognition of repeated commission of offence to be specially dangerous repeated commission of offence under part three of Article 43 of the effective CC. Thus, in certain instances the new CC shall improve the status of persons recognized under the CC of 1960 to be specially dangerous recidivists who, at present, may not be recognized as persons with repeated commission of offence. Under part six of Article 104 of the Constitution the law shall have no retrospective action unless it extenuates or revokes the responsibility of citizens.

In accordance with part two of Article 9 of the CC the law, eliminating criminality of a deed, mitigating punishment or improving in some other way the status of a person who committed offence, shall have retrospective effect, i.e. shall cover the persons who committed the relevant deed before entry of that law into legal force, including persons who serve sentence or served sentence, but who have not been previously convicted. The specified rule of retrospective effect of the criminal law should be also applied to the persons who have been recognized till 1 January 2001 to be specially dangerous recidivists in accordance with Article 24 of the CC of 1960.

While verifying the constitutionality of Article 13 of the Law of 18 July 2000, the Constitutional Court deems that it should be estimated by means of systematic interpretation, i.e. in its comparison with the provisions of the Constitution, the CC and the Law in question.In particular, Article 16 of the Law of 18 July 2000 stipulates that verdicts, decisions or rulings of the courts of law shall be subject to revision in instances when the Criminal Code of the Republic of Belarus, in some other way than the Law in question itself, improves the status of persons who committed offences, including persons who serve sentence or served sentence, but who have not been previously convicted. The specified Article, formulated with an allowance for the rule of retrospective effect of more soft law enshrined in part six of Article 104 of the Constitution and part two of Article 9 of the CC, shall be the legal basis for revision of verdicts reached before 1 January 2001 by which the convicts were found to be specially dangerous recidivists.

The Constitutional Court emphasizes multivalued nature of judicial practice on revision of verdicts with respect to specially dangerous recidivists reached before 1 January 2001. Guided by the instructions stated in "Replies of judicial board on criminal cases of the Supreme Court of the Republic of Belarus to the issues of the courts of law on application of legislation (Iss. 1. Minsk, 2001), the courts of law basically make revisions of those verdicts only in instances, if the commitment of offence by a specially dangerous recidivist has been recognized as qualifying feature of a deed for which a person has been subject to conviction under the CC of 1960.

By revising those verdicts, as a rule, there have been changed the qualification of the deed only, and a convict shall be considered to be a person with specially dangerous repeated commission of offence and has continued to serve a sentence in reformatory with special regime.

In other instances the courts of law shall revise verdicts only, if the latter offence committed by a specially dangerous recidivist under the new CC is not referred to the category of a grave crime or extra grave crime. Making estimation as a whole of the judicial practice on revision of the enforced verdicts with respect to the persons recognized till 1 January 2001 as specially dangerous recidivists till 1 January 2001, the Constitutional Court deems that those verdicts should be revised in all instances, if previously committed by a person offences in accordance with the effective CC make no specially dangerous repeated commission of offence due to amendment by the lawmaker of their legal evaluation depending on the character and degree of social danger.

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

RULED:

1. To find to be in line with the Constitution Article 13 of the Law of the Republic of Belarus of 18 July 2000 "On the entry into force of the Criminal Code of the Republic of Belarus", since the given Article shall specify only general approach to the evaluation of legal status of persons recognized till 1 January 2001 to be specially dangerous recidivists.

2. To consider that the verdicts, reached and enforced till 1 January 2001 under which the convicts have been recognized to be specially dangerous recidivists, should be subject to revision of the courts of law in accordance with part two of Article 9 of the Criminal Code and Article 16 of the Law of the Republic of Belarus of 18 July 2000 "On the entry into force of the Criminal Code of the Republic of Belarus" not only in instances where actions of a guilty person were qualified as been committed by a specially dangerous recidivist, but also in all other instances, if previously committed by them offences under the effective CC make no specially dangerous repeated commission of offence.

3. For the Supreme Court to secure strict and unified application by the courts of law of the Constitution, the Criminal Code and the Law of the Republic of Belarus of 18 July 2000 "On the entry into force of the Criminal Code of the Republic of Belarus" while solving the issue on revision of verdicts under which persons have been recognized by specially dangerous recidivists in accordance with Article 24 of the Criminal Code of the Republic of Belarus of 1960.

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