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 G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, G.B. Shishko, V.Z. Shuklin, has examined on the basis of Article 40, part one of Article 116, Article 125 of the Constitution, Articles 7 and 11 of the Law "On the Constitutional Court of the Republic of Belarus", Article 35 of the Law "On the Procurator's Office of the Republic of Belarus" motion of the Procurator-General of the Republic of Belarus on unconstitutionality of judicial practice about application of Article 37 of the Administrative Code of the Republic of Belarus (hereafter - AC) while considering cases on customs offences.

The Procurator-General in his motion has specified that the Procurator's Office of the Republic of Belarus is regularly receiving submissions of public prosecutors of oblasts and of heads of customs on making protests in the procedure of supervision against judicial rulings on the cases of administrative customs offences due to termination of their proceedings by the courts. In many instances it is determined that the given rulings of the courts have been delivered with violation of requirements of legislation and, therefore, they should be subject to abrogation. However, protests of public prosecutors against those rulings shall often find no statisfaction in the courts with reference to expiry of terms envisaged by part one of Article 37 of AC.

In the opinion of the Procurator-General wrong judicial practice took place which shall exclude the possibility for abrogation and revision of judicial rulings on termination of proceedings on the cases of administrative customs offences contrary to the requirements of part three of Article 37 of AC. According to Article 1 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court has been established for securing the supremacy of the Constitution, its direct effect in the territory of the Republic, for confirmation of legality in law creation and law application.

By force of requirements of part one of Article 116 of the Constitution control over the constitutionality of enforceable enactments shall be exercised by the Constitutional Court of the Republic of Belarus. While verifying the norms of AC the Constitutional Court according to Article 11 of the Law "On the Constitutional Court of the Republic of Belarus" has beard in mind both its literal meaning and meaning attached to them by the practice of application.

Having analyzed provisions of the Constitution, AC, studied the available materials, including those about judicial practice concerning cases on administrative customs offences, the Constitutional Court found the following. Article 37 of AC shall determine terms for imposition of administrative penalty. Administrative penalty may be imposed on or before two months from the day of commitment of an offence, and in case of an offence of several transactions - on or before two months from the day of its revelation. In instance of refusal of institution of a criminal case or termination of a criminal case, but with the presence of features of administrative offence in the actions of an offender, administrative penalty may be imposed on or before one month from the day of adoption of decision on refusal of institution of a criminal case or of its termination.

Terms specified in the given Article shall not cover instances of confiscation of things which are direct objects of administrative customs offences, and subjects with specially made hiding-places used for concealment of things from customs clearing. Confiscation of those things and subjects shall be carried out regardless of the time of commitment or revelation of an administrative offence. Analysis of the materials received shall signify that the practice of the courts on the administrative customs offences in part of observance of the terms for use of measures of administrative penalty fixed in Article 37 of AC is not uniform. According to point 111 of Resolution of Plenum of the Supreme Court of the Republic of Belarus of 20 September 1990 No. 7 "On practice of examination by courts of the Republic of Belarus of claims against actions of bodies and officials due to imposition of administrative penalties" (with further alterations and addenda) "if, while imposing administrative penalty, terms fixed by Article 37 of AC are observed, then those terms shall be subject to no use for new examination of an administrative case after abrogation of a ruling with the exception of abrogation of a ruling and forwarding the case for new examination due to the fact, that the ruling has been delivered by the body (official) authorized to solve the given case (point 4 of part one of Article 273 of AC)".

In spite of that, in the instances, while calling persons to account for administrative customs offence courts are guided exclusively by part one of Article 37 of AC, i.e. courts are based on the fact, that administrative penalty may be imposed on or before two months from the day of commitment of an offence, and in case of an offence of several transactions - on or before two months from the day of its revelation. As for other instances, while terminating proceedings within two months period (during last days of the term in question included) protests of public prosecutors made on the expiry of two months term shall not be satisfied by the courts with the reference to part one of Article 37 and point 7 of Article 227 of AC even with the presence of sound valid arguments on behalf of a public prosecutor on obvious unlawfulness of a ruling delivered.

At the same time, contrary to the requirements of part three of Article 37 of AC, courts shall also not examine the issue on the possibility of confiscation of things and subjects. There are also instances where courts, guiding by part three of Article 37 of AC, do examine cases on administrative customs offences and, as a result of finding the fact of an offence, do apply confiscation on the expiry of two months term specified in part one of Article 37 of AC. The following cases are significant in that respect. Thus, citizen L., who has been called to administrative liability by ruling of a judge of the court of the city of Pinsk of 17 October 1997 on the ground of part one of Article 193-2 of AC was incurred a penalty with confiscation of things for the fact, that he on 18 August 1997 at PPTO (Border point of customs clearing) "Nevel" of Pinsk's custom has concealed from customs clearing goods made in Turkey by way of giving no information in customs declaration about transferring things under the list. Preliminary estimation of the cost of transferring things 117 trunks in number was 4, 088 680 000 or about 150, 000 US dollars at official rate of the National Bank of the Republic of Belarus (at the date of confiscation of things). On 4 December 1997 Chairman of Brest oblast court has left without satisfaction the claim of citizen L.

Furtherafter, the specified rulings of courts have been repealed by the Supreme Court and the case was subject to long examination by various judicial authorities. On the case there have been delivered 11 rulings on both finding lawfulness of calling to liability and on release from liability. On 4 March 1999 Ruling of the Chairman of the Supreme Court has left without satisfaction the protest of Procurator-General of the Republic of Belarus with the reference to the expiry of two moths term fixed by Article 37 of AC. By ruling of judge of the court of the city of Mozyr on the ground of Article 193-6 of AC citizen Ts. has been imposed penalty with confiscation of motor car for transfer on 7 April 1999 of motor vehicle through the border without customs clearing.

Chairman of the Supreme Court on 20 July 2000 has repealed the specified ruling and the case has been terminated according to part one of Article 37 of AC due to expiry of two months term from the day of commitment of the offence (Sudovy vesnik. 2001. No. 1). Chairman of Grodno oblast court in his ruling of 16 February 2001 under the protest of Deputy Public Prosecutor of Grodno oblast has repealed ruling of judge of Oshmyansky region of 9 November 2000, which has terminated proceedings on administrative case with respect to citizen L. who has been calling to administrative liability under part one of Article 193-9 of AC for unreliable declaration of transferring currency. Chairman of Grodno oblast court has emphasized in his ruling that expiry of two months term from the day of commitment of an offence shall not be an obstacle for repeal of the given ruling of judge, since sanction of the Article in question envisages possibility for confiscation things which are direct objects of administrative customs offences, and in pursuance of part three of Article 37 of AC that shall not exclude the possibility for further proceedings on the expiry of the specified two months term from the day of commitment of an offence.

Based on the abovesaid the Constitutional Court deems that practice of courts on examination of administrative customs offences is conflicting and is at variance with the Constitution and with the laws due to non-observance of the requirements of part three of Article 37 of AC under which terms specified therein shall not cover instances of confiscation of things which are direct objects of administrative customs offences and confiscation of subjects with specially made hiding-places used for concealment of things from customs clearing. Confiscation of those things and subjects shall be carried out irrespective of the time of commitment or revelation of an administrative offence. Article 23 of AC shall envisage, among types of administrative penalty, confiscation of a subject which was a tool for commitment or direct object of an administrative offence.

Confiscation may be used both as a main and additional penalty. With the stand of the lawmaker taken into account it is also admissible to call a person to administrative liability for a customs offence as confiscation of those things and subjects after expiry of two months term. The Constitutional Court considers that such an approach of the lawmaker is conditioned by a number of circumstances, special complexity of cases of that category included. For making lawful ruling in a number of instances in accordance with customs and other legislation it is necessary to make examination, inquiry of many people, reclamation of documents, inspection, check, inventory and other actions.

Moreover, by introducing the specified norm, the lawmaker has pursued the aim to prevent from realization in the territory of the Republic of Belarus of the property transferring through customs border, free circulation of which is possible in accordance with Articles 19 - 29 and with other Articles of the Customs Code of the Republic of Belarus only after finishing customs clearing and control. According to the Bases of customs legislation of the Member-States of the Commonwealth of Independent States no-one shall have the right to use and to dispose of goods and motor vehicles with respect to which customs clearing has not been finished (Article 135). Non-application of part three of Article 37 of AC shall make real threat for economic and financial system of the country, its economic security, for health and even for life of citizens (for example, while bringing inwards goods of law quality), shall prevent from achievement of other socially significant goals of the state ruled by law which are enshrined in the Constitution. Unlawful bringing inwards goods shall do harm to economic interests of both the country where goods are being brought therein and the country where goods are being brought therefrom.

In this connection, practically all states are interested in effective struggle with customs offences and, usually, more strict liability is envisaged for customs offences. One of the principles of the state ruled by law shall be not only legal proctectability, but also fairness which is expressed in inevitability of liability and in proportionality between punishment and the committed offence. The lawmaker has established for customs offences additional penalty, which is in essence adequate to the committed action(s) - confiscation of the subject which was the tool for commitment or direct object of an offence.

The Constitutional Court emphasizes that application of the norm such as confiscation shall be possible, if the court finds the fact of an administrative customs offence. With the requirements of part one of Article 37 of AC taken into account, the court after expiry of two months term shall have no right to apply to a guilty person the measures of administrative liability specified in relevant Articles of AC, other than confiscation of things which are direct objects of administrative customs offences and subjects with specially made hiding-places used for concealment of things from customs clearing. However, the court, while finding the fact of commitment of an administrative customs offence shall be obliged, guiding by part three of Article 37 of AC, to examine the issue on confiscation of things and subjects even before the expiry of the terms specified in parts one and two of the Article in question.

The Constitutional Court deems that if administrative proceedings were terminated within two months period, then after repeal of the ruling, while new examination of the case beyond that term the court in accordance with part three of Article 37 shall also have the right to apply confiscation of things which are direct objects of administrative customs offences and subjects with specially made hiding-places used for concealment of things from customs clearing. Basic Law shall entrusted bodies of Procurator's Office with supervision over legality of the verdicts of the courts in administrative cases (Article 125). Under Article 128 of the Constitution the competence, organization and procedure governing the activities of bodies of the Procurator's Office shall be determined by the law. The Law "On the Procurator's Office of the Republic of Belarus" shall envisage the right of a public prosecutor to make the protest on administrative case in instance of revealing violations of the legislation.

Thus, the Constitution, the Law "On the Procurator's Office of the Republic of Belarus" and other enforceable enactments shall envisage no restrictions of the rights of a public prosecutor while exercising supervision over legality of examination of administrative cases. In the opinion of the Constitutional Court making a protest by a public prosecutor on administrative customs offences may be subject to restriction by reasonable terms as it is stipulated, for example, in civil legislation of procedure and in other legislation.

The Constitutional Court emphasizes that AC establishes no limiting terms within which it is admissible revision of rulings on administrative customs cases with application of such an administrative penalty as confiscation of things which are direct objects of administrative customs offences and subjects with specially made hiding-places used for concealment of things from customs clearing, i.e. the lawmaker shall allow, on points of fact, the liability with no fixed terms.

The Constitutional Court considers that such an approach is not in line with general principles of juridical responsibility for which it is typical establishment of limiting terms of prescription while calling a person to administrative liability. With a view to secure the rights of citizens the lawmaker may fix maximum term within which the given issue should be solved. Analysis of the criminal, criminal legislation of procedure, civil legislation of procedure, labour legislation shall signify that the lawmaker fixes terms within which a guilty person may be called to liability. Articles 197 and 198 of the Civil Code of the Republic of Belarus envisage that general term of action prescription shall be three years, and for certain kinds of requirements legislative acts may fix special terms of action prescription (reduced or more long terms in comparison with general term). Article 83 of the Criminal Code of the Republic of Belarus shall envisage release of a person from criminal liability, if, from the day of commitment of a crime which is not of a big social danger, two years has expired.

According to Article 406 of the Criminal Code of Procedure of the Republic of Belarus review by way of supervision of the accusative sentence, definition and ruling of the court in connection with the required application of the law on a graver crime, lenienty of punishment or on other grounds entailing worsening of the status of the convict, as well as the acquitting sentence or definition or ruling of the court on discontinuance of the case shall be allowed during three years after they came into legal force.

Based on the principles of proportionality of an administrative offence with other kinds of offences the Constitutional Court deems that for the period before filling in the existing gap, from the stand-point of general principles and approaches to application of the norms on juridical responsibility, it shall be lawful orientation towards three years term established by Article 197 of the Civil Code. At the same time, the lawmaker shall also have the right to fix other special terms (reduced or more long terms).

The Constitutional Court underlines that economic safety of the state, as well as the rights and lawful interests of citizens will find proper safeguarding if, courts of common law, which constantly review administrative customs cases, shall duely, under Article 112 of the Constitution, Article 6 of the Law "On the Constitutional Court of the Republic of Belarus", Article 4 of the Law "On judicial system and status of judges in the Republic of Belarus", raise before the Constitutional Court the issue on verification of the constitutionality of Article 37 and other Articles of the Administrative Code of the Republic of Belarus.

Based on the aforestated and guided by Article 40, part one of Article 116 of the Constitution, Article 125 of the Constitution, by Articles 1, 7, 11, 36, 38, 40, 40¹ of the Law "On the Constitutional Court of the Republic of Belarus", Article 35 of the Law "On the Procurator's Office of the Republic of Belarus" the Constitutional Court

RULED:

1. To find that Article 37 of the Administrative Code of the Republic of Belarus in part of admissibility of calling to administrative liability as confiscation of things which are direct objects of administrative customs offences, and subjects with specially made hiding-places used for concealment of things from customs clearing after expiry of the terms fixed in parts one and two of the given Article shall be in compliance with the Constitution and with the laws of the Republic of Belarus. For the period before the lawmaker solves the issue on fixing limiting terms for calling to administrative liability as confiscation of things and subjects for the specified offences application of general three years term shall be considered to be admissible.

2. To point out unconstitutionality of judicial practice on administrative customs cases in part of non-application of confiscation with the reference to expiry of two months term contrary to the requirements of part one of Article 37 of the Administrative Code of the Republic of Belarus which shall make it possible to impose administrative penalty as confiscation of things which are direct objects of administrative customs offences, and subjects with specially made hiding-places used for concealment of things from customs clearing irrespective of the time of commitment or revelation of an administrative offence.

3. To propose the Supreme Court of the Republic of Belarus to ensure uniformity of judicial practice on administrative customs cases in accordance with part three of Article 37 of the Administrative Code of the Republic of Belarus which shall allow calling to administrative liabilty as confiscation of things which are direct objects of administrative customs offences, and subjects with specially made hiding-places used for concealment of things from customs clearing also after the expiry of the terms fixed in parts one and two of the specified Article.

4. To propose the National Assembly of the Republic of Belarus to consider the issue on establishment of limiting terms during which a person who committed an administrative customs offence may be subject to application of confiscation of things which are direct objects of administrative customs offences, and subjects with specially made hiding-places used for concealment of things from customs clearing.

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

6. 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