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, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.I. Shabailov, G.B. Shishko, V.Z. Shuklin, having examined on the grounds of Article 40 and part one of Article 116 of the Constitution of the Republic of Belarus petition on the issue of non-applying of amnesty with respect to certain categories of the convicts, found the following.

In accordance with Article 9 of the Law of 18 January 1999 "On amnesty of certain categories of citizens who committed crimes" (Vedamastsy Natsyanalnaga skhodu Respubliki Belarus, 1999, No. 3, art. 40) for the convicts sent to imprisonment term of sentence shall be reduced in one year, and for the convicts who have no less then one year before the expiry of the term of sentence, the term of sentence shall be reduced in the left-over part. According to point 9 of Article 15 of the given Law the convicts, with respect to whom verdicts have taken effect on the day of coming into force of the Law in question, shall fall within Article 9. The Law on amnesty has come into force on 21 February 1999, i.e. from the day of its publication as it is specified in Article 27 of the given Law.

Analogous provisions concerning application of amnesty to the convicts are contained in Article 10 and in part ten of Article 14 of the Law of 14 July 2000 "On amnesty of certain categories of citizens who committed crimes" (Vedamastsy Natsyanalnaga skhodu Respubliki Belarus, 2000, No. 24, art. 328).

Thus, according to the law amnesty as reduction of the term of imprisonment may be applied to the convicts with respect to whom the verdicts brought by the court have become effective at the moment of coming into force of the law on amnesty.

It is evident from the petition of the convicts to the Constitutional Court, as well as from the analysis of the practice that the amnesty has not been applied to certain persons due to the fact that owing to circumstances beyond their control their cassations against brought verdicts have been subject to no examination during long period of time. Therefore, on the day of coming into force of the law on amnesty verdicts with respect to those convicts have taken no effect, and that have excluded the possibility to apply to them amnesty.

One of the reasons of untimely examination of criminal cases in the procedure of cassation is their delay in the court of first instance, because of examination of remarks on the court records included. Verdict shall also take no effect in instances where on the same case several persons are convicted, and cassations are lodged by single persons among those convicts and thus, amnesty shall not apply to the persons who made no cassations against the verdict.

Having analysed provisions of the Constitution, international legal acts, as well as norms of the criminal legislation of procedure and the practice of their application, the Constitutional Court has come to the following conclusions.

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

Under part three of Article 115 of the Constitution the parties and the persons have the right to appeal against rulings, sentences and other judicial decisions.

Article 8 of the Universal Declaration of Human Rights establishes 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.

In accordance with Article 14 of the International Covenant on Civil and Political Rights in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled, in full equality, to be tried without undue delay. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

Article 337 of the Criminal Code of Procedure (hereafter - CCP) envisages that cassations and protests against the verdict of the court of first instance may be lodged during seven days from the day of pronouncement of the verdict, and for the convicts sent to imprisonment, - within the same time period from the day of handing him the copy of the verdict. On the expiry of the term fixed for appeal or protest court or judge which or who has given the verdict shall send the case with the complaints and the protest to cassation instance and notify interested persons about the day of examination of the case in cassation instance (Article 339 of CCP). Oblast Courts, Minsk City Court, Belarusian Military Court, Supreme Court of the Republic of Belarus should examine the case on cassation appeal or protest to the day fixed by the court of first instance but one month after the day of its receipt at the latest. In exceptional instances chairperson or deputy chairperson of the court may prolong that term, but not for more that one month (Article 342 of CCP).

According to part five of Article 264 of CCP court record should be made and signed three days after the end of court session at the latest, and in complicated cases - 7 days at the latest. During three days after signing of the record the prosecutor, defence counsel, defendant as well as victim, civil plaintiff, civil defendant and their representatives may make their remarks concerning the record (Article 265 of CCP).

However, CCP (Article 266) specifies no terms for examination of the remarks on court record in the court of first instance. Criminal legislation of procedure also fixes no terms within which the court of first instance shall be obliged to refer the criminal case to the court of cassation.

Similar gaps are contained in new CCP (Articles 310, 374, 375, 376, 380) which shall come into legal force since 1 January 2001.

Absence in the criminal legislation of procedure of solution of the given issues in practice shall often lead to undue delay of examination of cassation that, in the opinion of the Constitutional Court, shall not secure constitutional guarantees of the right to administer justice within the time periods specified in law, including the right to cassation against the verdicts brought by the court of first instance.

The Constitutional Court in its Judgment of 23 June 1999 has emphasized that provisions of the Constitution and universally acknowledged norms of international law shall make obligations for the State to ensure not only accessibility to justice, equality of all before the law, but also full exercise of the right to judicial protection which should be fair, competent and effective. The State is obliged to guarantee protection of human rights and freedoms against court error. By means of examination of cassation, in the process of which review of the case takes place, the procedural rights of parties and persons who shall participate in the legal proceedings are secured in more full scope, guarantee is given the exercise of the constitutional right to judicial protection as well as the delivery by the courts of lawful and well-grounded rulings.

In that connection the Constitutional Court emphasizes that untimely examination of cassation which is conditioned by the absence in the law of the terms to refer of the criminal case by the court of first instance to cassation instance shall both practically violate the constitutional right of the convicts to cassation against court verdict and entail violation of other rights of citizens, in particular, the right to apply amnesty.

As the practice indicates, the convicts sometimes are bound to refuse from realization of their right to cassation against court verdict only in order the verdict in question to have no legal force to the very day of coming into legal force of the law on amnesty.

Specification in the criminal legislation of procedure of the terms during which remarks on court record should be examined in the court of first instance, as well as terms within which the criminal case in instances of cassation against verdict should be referred to cassation instance shall serve, in the opinion of the Constitutional Court, as additional guarantee of the constitutional rights of citizens to judicial protection which shall exclude undue delay of examination of court verdicts in the procedure of cassation.

Under Article 21 of the Constitution safeguarding the rights and freedoms of the citizens of the Republic of Belarus shall be the supreme goal of the State. The Constitution proclaims the principle of equality of all before the law and the right without any discrimination to equal protection of their rights and legitimate interests (Article 22).

The State by means of adoption of laws on amnesty, by manifesting humane respect to the person who committed crime shall deliver an act on pardon of certain categories of those persons. Lawmaker is entitled to determine the circle of persons to whom amnesty is applied, to specify them conditions both for release from criminal liability and from punishment and for reduction of the terms of punishment ordered to him by the court based on the provisions of the Constitution and international legal acts. (In the given decision the Constitutional Court does not estimate the practice of regular adoption of laws on amnesty which is conditioned to a certain extent by court practice of ordering the punishments, imprisonment included.)

The Constitutional Court deems that amnesty may be applied to the convicts with respect to whom the verdicts brought by the courts of first instance have not become effective on the day of coming into legal force of the law on amnesty due to the fact that their cassations have not been examined during long period of time for reasons beyond their control. The specified persons are in unequal position in comparison with the convicts whose cassations have been examined without delay, or with the convicts who have not used at all their right to cassation against the verdict of the court.

In that connection the Constitutional Court considers that there are grounds for finding a fair decision on the issue of application of amnesty to the accused with respect to whom verdicts have not come into legal force. That is possible both through making alterations and addenda into the available laws and by means of official interpretation of the specified laws.

In the opinion of the Constitutional Court by adopting laws on amnesty in future there may be other variants for fair decision concerning the given issue.

With the aforestated taken into account and guided by Article 40, part one of Article 116 of the Constitution, by Articles 7, 36, 38, 40, 40¹ of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court

RULED:

1. To propose the National Assembly of the Republic of Belarus:

to examine the issue (by means of interpretation included) on application of the effect of the Laws of 18 January 1999 "On amnesty of certain categories of persons who committed crimes" and of 14 July 2000 "On amnesty of certain categories of persons who committed crimes" to the convicts with respect to whom the verdicts have not come into legal force due to the fact that cassations (protests) on their cases have not been examined during long period of time for reasons beyond the control of the accused;

to make addenda to the criminal legislation of procedure by establishing the term during which there shall be examined remarks on the court record in the court of first instance, as well as the term within which the criminal case with the presence of cassation (protest) should be referred to the court of cassation instance.

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

3. 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