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, G.B. Shishko, V.Z. Shuklin, has examined on the basis of Article 40, part one of Article 116 of the Constitution the motion of military personnel terms of appeal to the court against disciplinary penalty on demotion, found the following.

Under Article 22 of the Constitution of the Republic of Belarus all shall be equal before the law and entitled without discrimination to equal protection of their rights and legitimate interests.

Article 8 of the Universal Declaration of Human Rights enshrines 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.

Citizens of the Republic of Belarus shall be guaranteed the right to work as the worthiest means of an individual’s self-assertion, that is, the right to choose of one’s profession, type of occupation and work in accordance with one’s vocation, capabilities, education and vocational training, and having regard to social needs, and the right to healthy and safe working conditions (Article 41 of the Constitution).

Servicemen shall realize the right to work by means of military service.

State shall guarantee servicemen the observance of their rights and freedoms established by legislation for the citizens of the Republic of Belarus with the restrictions for their use specified by the peculiarities of military service (Article 1 of the Law “On status of servicemen”).

A serviceman who has violated military discipline or public order may be imposed disciplinary penalties which are envisaged by Temporary Disciplinary Rules of Armed Forces of the Republic of Belarus approved by Decree of the President of the Republic of Belarus of 4 June 1997 No. 318. Demotion — is one of the forms of disciplinary penalty (point 68 of the given Rules).

Under Article 60 of the Constitution of the Republic of Belarus everyone shall be guaranteed protection of one’s rights and liberties by a competent, independent and impartial court of law within time periods specified in law.

According to part four of Article 5 of the Law “On status of servicemen” servicemen, in case of groundlessness of restriction of the rights and freedoms, shall have the right to judicial protection.

Point 10 of Article 23 of the specified Law envisages that servicemen may appeal to the courts of law against illegal actions of officials and bodies of military administration which infringe upon their rights and personal dignity, as well as to lodge a complaint with the court about illegal actions of the bodies of state administration, public associations and officials. Analogous norm is contained in Temporary Disciplinary Rules of Armed Forces of the Republic of Belarus (point 103).

Neither the Law “On status of servicemen” nor the Temporary Disciplinary Rules of Armed Forces of the Republic of Belarus specify the term for appeal of servicemen to the court on remission of disciplinary penalty, with the exception of dismissal.

Point 3 of Article 9 of the Law “On status of servicemen” envisages that, in case of refusal of servicemen of the grounds for their dismissal from military service, they shall have the right to appeal to superior command and judicially within three months period after removal from the list of a military unit. Thus legislation fixes three-month term for appeal to the court against unlawfulness of only the dismissal from military service.

In pursuance of part five of Article 11 of the Law “On the Constitutional Court of the Republic of Belarus” the Constitutional Court while verifying an enforceable enactment shall think of both its literal meaning and meaning attached by the practice of its application.

Having estimated the provisions of enforceable enactments concerning the right of servicemen to appeal to the court on remission of disciplinary penalty, as well as studied the practice of examination by military courts of complaints, appeals against illegal actions (decisions) of officials and bodies of military administration which violate the rights and lawful interests of servicemen, the Constitutional Court pays attention to the absence of unique practice of application of procedural norms while examining complaints and appeals of servicemen. In particular, complaints (appeals) of servicemen concerning the challenge of dismissal shall be carried out under the procedure of action proceedings, and the appeals of remission of disciplinary penalties — under the rules emerging out of administrative legal relations that leads to restriction of procedural rights of servicemen, including application of the norms specifying smaller terms for making a complaint to the court.

Part three of Article 353 of the Civil Code of Procedure (CCP) envisages that servicemen shall have the right to appeal to the military court against actions (inactivities) of officials and bodies of military administration. According to Articles 354, 355 of CCP a complaint shall be lodged with the court after appeal against action of an official, body of military administration to superior official in the procedure of subordination, to body of military administration who is obliged to examine the complaint and to inform a citizen about the results within one month. Complaint may be made to the court within one month beginning from the day of receiving by a citizen of the refusal of superior official or organization in satisfaction of a complaint or on the day of expiry of monthly term after lodging the complaint, if an applicant received no reply thereto. The Constitutional Court deems that the norms in question shall be applicable when requirements of servicemen, requirements of property nature included, are emerging directly from administrative legal relations based on commanding powers of one party with respect to another.

In instances when actions under appeal have been committed by officials or by bodies of military administration not in the procedure of exercise of administrative and commanding powers but in the process of other activities which is based on equality of participants of legal relations, the case shall be subject to examination in the procedure of action proceedings.

The Constitutional Court notes also that analogous complaints on remission of disciplinary penalties of the officers of the bodies of internal affairs shall be subject to examination by the courts in the procedure of action proceedings.

The Law “On status of servicemen” envisages the right of servicemen to appeal against disciplinary penalties, however, that law contains no provisions regulating the terms of appeal to the court, that is the gap in the law and shall discourage a servicemen from realization in full the constitutional right to judicial protection. Such a gap may be filled in by means of making alterations and addenda into the law, as well as by means of application of the analogy of the law, and in instance of impossibility to use the analogy of the law there shall be applied analogy of law. It is inadmissible to apply by analogy of the norms restricting civil rights and establishing responsibility (Article 5 of the Civil Code).

The Constitutional Court deems that complaints of servicemen on remission of a disciplinary penalty and on challenge of the grounds for dismissal from service should be examined in the procedure of action proceedings due to similarity of their legal nature, since in both cases law dispute takes place.

Moreover, complaints of servicemen on remission of disciplinary penalties in their law nature are the most similar to the complaints and applications of employees who challenge the validity of imposition of disciplinary penalties by an employer. Cases under the claims of employees to employer on remission of a disciplinary penalty shall be examined in the procedure of action proceedings. Article 242 of the Labour Code specifies that employees on labour disputes (dismissal excepted), on appeal against disciplinary penalty included, may appeal to the Commission on Labour Disputes and to the court within three months period form the day when they have known or had to know about violation of their right.

Having analyzed provisions of the Constitution, international instruments, enforceable enactments, as well as judicial practice, the Constitutional Court considers that servicemen shall have the right to claim to the court to challenge disciplinary penalty within three months period form the day when they have known or had to know about violation of their right, e.i. at the same date which is fixed for appeal against the grounds of dismissal from the service.

Based on the aforestated and guided by Article 40, part one of Article 116 of the Constitution, by Articles 7, 36, 38, 40 and 40¹ of the Law “On the Constitutional Court of the Republic of Belarus” the Constitutional Court 

RULED: 

1. To consider that servicemen shall have the right to claim to the court on the issue of appeal against disciplinary penalty within three months period form the day when they have known or had to know about violation of their right.

Examination of those applications should be carried out under the rules of action proceedings.

2. To propose the National Assembly of the Republic of Belarus to make alterations and addenda into the Law “On status of servicemen” for its further improvement.

3. To pay attention of judicial bodies to the necessity of observance of Article 112 of the Constitution and Article 4 of the Law “On judicial system and status of judges in the Republic of Belarus”, which shall specify by force of Article 59 of the Constitution their obligation to raise issues with the Constitutional Court on verification of the constitutionality of an enforceable enactment, if, during the hearing of a specific case, a court concludes that an enforceable enactment is contrary to the Constitution.

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

5. The present Decision shall be subject to publication in accordance with effective legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich