On 10 April 2018 the Constitutional Court of the Republic of Belarus took the decision "On the right of interested parties to judicial protection in the writ proceedings" (reporting judge – Viktor Ryabtsev)
The proceedings were initiated by the Constitutional Court in accordance with Articles 158.1 and 158.4 of the Law of the Republic of Belarus “On Constitutional Proceedings” on the basis of the application submitted by the Belarusian Republican Collegium of Advocates on a legal gap in the legislation of the Republic of Belarus on civil procedure and economic procedure regulating the writ proceedings. This gap of legal regulation affects the right to judicial protection of interested parties in the writ proceedings who are not collector or debtor, and whose rights and legal interests may be affected by the writ.
The writ proceedings are a separate type of civil and economic proceedings in economic cases and are regulated by the provisions of the Chapter 31 of the Code of Civil Procedure and Chapter 24 of the Code of Economic Procedure establishing the procedure of consideration by general courts of applications in the framework of the writ proceedings. The peculiarity of these proceedings is that a judge, a court that deals with economic matters, makes a ruling on judicial writ without trial and summoning the parties on the application of the recoverer on recovery of funds, reclamation of property or on recovery of the debtor's property that are indisputable (based on documents confirming the debt) or are recognized (not disputed) by the debtor, but are not executed.
In case the debtor does not acknowledge these claims, he is entitled to judicial protection of his rights and legitimate interests.
The analysis of the provisions of the CCP and CEP shows that in these codes the judicial protection of other persons whose rights and legitimate interests may be affected by the ruling on judicial writ is not provided, which indicates that there is a gap in legislative regulation in the field of the writ proceedings.
The Constitutional Court stated in its decision that if the ruling on judicial writ affects the rights and legitimate interests of others, imposes certain duties on them, then, by virtue of the principle of adversarial character and equality of parties in the process, procedural guarantees for the protection of rights and legitimate interests of these persons in the writ proceedings shall be ensured on an equitable basis with the debtor, since only under this condition the right to judicial protection which within the meaning of Article 60.1 of the Constitution shall be fair, complete and effective, may be exercised.
The Constitutional Court, in order to exercise the principle of the rule of law and to ensure the constitutional right to judicial protection, recognised the need to eliminate the gap in constitutional and legal regulation of ensuring the right of interested parties to judicial protection in the writ proceedings, whose rights and legitimate interests are affected by the ruling on judicial writ by making appropriate alterations to the Code of Civil Procedure of the Republic of Belarus and to the Code of Economic Procedure of the Republic of Belarus.
The Council of Ministers of the Republic of Belarus is invited to prepare a draft law on making alterations to the legislation of the Republic of Belarus on civil procedure and economic procedure that regulates the writ proceedings and to submit it to the House of Representatives of the National Assembly of the Republic of Belarus under the established procedure.
