The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer — Chairman of the Constitutional Court G.A. Vasilevich, judges 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 concerning the possibility of judicial appeal against penalties incurred by administration of reformatory as regards imprisoned convicts, found the following.

Article 112 of the Criminal Code of Executions of the Republic of Belarus (hereafter — CCE) envisages penalties which may be applied to convicts for violation by them of the established procedure of serving custodial punishment. Procedure for apply of penalties to imprisoned convicts is specified in Article 113 of CCE. In accordance with part four of the given Article penalties on the convicts are imposed by rules of officials of reformatories who shall be empowered to impose penalties thereon. With the presence of the grounds penalty may be abolished or changed by the official who applied it, or by superior official authorized thereto (part eleven of Article 113 of CCE).

The motion to the Constitutional Court raises the question on the possibility of judicial appeal against illegal application of penalties to imprisoned convicts.

Having studied the provisions of the Constitution, international legal acts, norms of the criminal legislation of executions, criminal legislation of procedure and other legislation, as well as practice of their application, the Constitutional Court came to the following conclusions.

Constitution enshrines that everyone shall be guaranteed protection of one’s rights and freedoms by a competent and impartial court of law within time periods specified in law (Article 60).

Article 3 of CCE envisages that the criminal legislation of executions of the Republic of Belarus shall be based on the Constitution of the Republic of Belarus, universally acknowledged principles and norms of international law, international treaties of the Republic of Belarus which are related to the execution of a punishment and to the treatment with convicts.

If international treaty of the Republic of Belarus establishes other rules for execution of a punishment and for treatment with convicts, than those rules under criminal legislation of executions of the Republic of Belarus, rules of international treaty shall be applied directly, except for cases, where international treaty presupposes the requirement to issue national act for application of those norms.

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.

International Covenant on Civil and Political Rights fixes the obligation of a State Party to the present Covenant to ensure that any person whose rights and freedoms are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity, and to develop the possibilities of judicial remedy (points “a”, “b” of Article 3).

The Constitutional Court emphasizes that analogous approaches are also contained in the documents of the Council of Europe which are binding for its members may be a guideline for the States who express their striving to join the Council of Europe.

Resolution 78 (8) of the Committee of Ministers on legal aid and consultations, adopted by the Committee of Ministers of the Council of Europe of 2 March 1978, specifies that the right to access to justice and fair hearing, which is guaranteed by Article 6 of the European Convention on Human Rights, shall be one of the fundamental features of any democratic State.

European Penitentiary Rules, recommended by the Committee of Ministers of 12 February 1987, envisage that protection of individual rights of prisoners and, in particular, legality of application of disciplinary penalties shall be secured by means of exercising control, in accordance with national law, by representatives of judicial or other bodies who are authorized to visit prisoners as well as those who are not members of penitentiary administration.

The Criminal Code of Executions of the Republic of Belarus secures the right of convicts to make complaints, applications and claims to the administration of the body which shall execute sentence or other measures of criminal liability, to the court, procurator’s office and to the other state bodies, public associations on the protection of human rights and freedoms (part four of Article 10).

Article 18 of CCE determines the limits of judicial control over the activities of the bodies which shall execute sentence. The list of issues which are subject to judicial control contains only two issues concerning judicial control over execution of imprisonment:

1) early conditional release from punishment or substitution of punishment for more lenient one;

2) changing of the type of a reformatory for a convict who serves custodial sentence.

Part five of Article 18 of CCE establishes that the court shall examine the complaints against actions of administrations of the bodies which execute sentence and other measures of criminal liability in instances and under the procedure specified in legislation.

However, the Criminal Code of Executions envisages no judicial appeal against penalties incurred to a convict. There is also no such a procedure in the Criminal Code of Procedure which shall regulate the issues of execution of sentence (Chapter 41), as well as in other legislation.

In that connection the Constitutional Court notes that the existing in practice restrictions of the right of convicts to judicial appeal against incurred to them penalties are conditioned by the fact, that the norms of the criminal legislation of executions specify no instances for possible appeal to the court against actions of administrations of reformatories in part of application of penalties to the convicts. That is not in full conformity with the Constitution.

The Constitutional Court deems that the establishment by Article 113 of CCE of the procedure under which the penalty imposed on a convict may be abolished or substituted therefor by the official who applied it or by superior official who is authorized thereto, shall be turned to the ensuring of quick settlement of the complaint within the frames of one department, as well as to eliminate violations of administration of reformatory. However, the procedure, which envisages no further appeal against those actions to the court, is understanding in practice as the procedure which eliminate the possibility of judicial protection of lawful rights of convicts. That is at variance with Article 60 of the Constitution.

In its judgments and its yearly messages on constitutional legality in the Republic of Belarus the Constitutional Court has several times paid attention to direct effect of Article 60 of the Constitution by force of requirements enshrined in Articles 137 and 142 of the Basic Law and specified that the right of citizens to judicial protection shall be referred to the universally acknowledged principles of international law, the supremacy of which the Republic of Belarus shall recognize under Article 8 of the Constitution and shall ensure that the laws of the Republic of Belarus comply with such principles. The provision of Article 60 of the Constitution is an important guarantee for the protection of the rights and freedoms of citizens against any actions or decisions which may violate their rights and freedoms. The right to judicial protection shall be the rights which may not be restricted, including those persons who has been convicted to imprisonment for the crime committed.

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. Taking into account direct effect nature of the norms of the Constitution, to consider that before making alterations and addenda into effective legislation of the Republic of Belarus imprisoned convicts, who has appealed against penalty imposed thereon and those convicts who are not agreed to the decisions adopted with respect to them shall have the right to make claims to the court of law on the grounds of Articles 60 and 137 of the Constitution.

2. To propose the National Assembly of the Republic of Belarus to make alterations and addenda into the effective legislation of the Republic of Belarus by securing in it the procedure of judicial appeal against application of penalties to the convicts by administration of reformatory.

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

4. 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