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 T.S. Boiko, G.A. Vorobei, K.I. Kenik, 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 on the issue of exercise of the right to judicial protection, found the following.

According to part one of Article 139 of the Criminal Code of Procedure (hereafter — CCP) complaints against actions and decisions of a body of inquiry, inquirer and investigator shall be submitted to the prosecutor who supervises over the fulfilment of laws in the process of preliminary investigation. Complaints against actions and decisions of a prosecutor shall be submitted to a superior prosecutor, and as for the complaints against actions and decisions of the court — to a superior court.

According part two of the given Article the complaints against decisions of a body of criminal prosecution on termination of preliminary investigation of a case, criminal prosecution shall be submitted to the relevant prosecutor or to the court under the place of investigation of a case. That norm reproduces the wording of part six of Article 209 of CCP which was effective till 1 January 2001 and which has been brought into line with the Judgment of the Constitutional Court of the Republic of Belarus of 13 may 1999. That Judgment has recognized the right of a citizen to judicial appeal against ruling on termination of a criminal case.

Article 143 of effective CCP envisages procedure of appeal to the court against detention, taking into custody, home arrest or extension of the term in custody, home arrest.

Thus, CCP shall make it possible to appeal to the court against actions of a person who shall carry out inquiry or investigator only in instances of termination of preliminary investigation of a case, criminal prosecution or taking measures of preventive punishment such as custody, home arrest or extension of the term for taking those measures.

In all other instances CCP envisages appeal against actions and decisions of a body of inquiry, inquirer and investigator to the prosecutor only.

Similar approach has been specified in CCP which was effective till 1 January 2001 and under which law applying practice has been formed.

The motion to the Constitutional Court, as well as the analysis of the practice of application of the norms of the criminal legislation of procedure, including that previously effective, which have stipulated the procedure of appeal against actions of a person who shall carry out inquiry and investigator, signify that certain citizens have no real possibility to realize their right to judicial protection on the issues arising due to exercise of criminal procedure relations, but have no regard to the termination of preliminary investigation of a case or application of the measures of preventive punishment.

In practice, in certain instances courts refuse to examine the complaints against a person who shall carry out inquiry or investigator because of the fact, that the criminal legislation of procedure envisages appeal against those actions to the prosecutor only, in some other instances they motivated their refuses by non-observance of the procedure of making complaints to the court, and that procedure is specified in Article 354 of the Civil Code of Procedure (hereafter — CCP).

Thus, there is no uniform judicial practice on the given issue.

Having studies the provisions of the Constitution, international legal acts, norms of the criminal and civil codes of procedure, as well as practice of their application, the Constitutional Court comes 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 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).

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.

The Constitutional Court of the Republic of Belarus, while paying attention in its judgment to the supremacy of the Basic Law, which is enshrined in Article 137 of the Constitution, has emphisized several times that the right of citizens to judicial protection shall be referred to the universally acknowledged principles of international law the supremacy of which under Article 8 of the Constitution, the Republic of Belarus shall recognize and 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.

According to the motion to the Constitutional Court investigator of the procurator’s office has rejected request of a person for access to participation in a criminal case as a defence counsel of his relative. That person who has appealed to the court was rejected examination of a case on the ground that there have been no observance of the procedure of appeal against actions of an official under Article 354 of CCP (Civil Code of Procedure).

Ministry of Justice has come to the conclusion on the given issue that in those instances actions of investigator should be subject to appeal thereagainst to the prosecutor and in instance of rejection the complaint it is necessary to appeal to the superior prosecutor.

In that connection the Constitutional Court deems that multivalued approaches to the solution of the issue on realization in the criminal proceedings of the right of citizens to judicial protection are conditioned by the fact, that there is a gap in the norms of the criminal legislation of procedure, since those norms, contrary to the Constitution, specify no right to appeal to the court against actions and decisions of a body of inquiry, inquirer and investigator.

The Constitutional Court notes that in practice, while applying the given norms of CCP, it is paid no attention to the principle of supremacy of the Constitution, fixed in Article 137 of the Basic Law, and is not taken into account legal position of the Constitutional Court about direct effect nature of Article 60 of the Constitution, which found its reflection in the judgments previously adopted (of 27 June 1998, of 13 May 1999 and other).

The Constitutional Court deems that determination in CCP of the procedure under which actions and decisions of a body which conducts criminal proceedings may be subject to appeal against the prosecutor, shall have grounds, since it shall secure the most quick (operative) solution of the complaint lodged within one department and removal of the violations of the rights of the citizens who made the complaint. That is also conditioned by the competence of the bodies of the procurator’s office which are obliged under the Constitution (Article 125) and the Law “On the Procurator’s Office” (Article 2) to supervise over the bodies of inquiry and preliminary investigation. However, that procedure should not be realized as the procedure which shall excluded the possibility to restitute, by means of request for judicial protection, the violated fundamental rights of citizens granted by the Constitution and by the laws. Therefore, the legislation should be regulated in the way in order not to exclude the right of citizens to judicial protection.

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, in spite of the gap in the Criminal Code of Procedure of the Republic of Belarus, citizens shall have, on the grounds of Articles 60 and 137 of the Constitution by force of its supremacy, to make complaints against actions and decisions of a body of inquiry, inquirer or investigator to both the prosecutor and to the court in order to protect their fundamental rights and freedoms guaranteed by the Constitution.

2. To propose the National Assembly of the Republic of Belarus to make alterations and addenda into the criminal legislation of procedure by securing in it the right to appeal against actions and decisions of a body of inquiry, inquirer or investigator to both the prosecutor and to the court, as well as to determine in those instances the procedure of appeal of citizens for judicial protection.

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