27 March 2008 № D-203/2008
The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer - Chairman of the Constitutional Court P.P. Miklashevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, S.Y. Danilyuk, V.P. Isotko, L.G. Kozyreva, V.V. Podgrusha, L.M. Rjabcev, A.G. Tikovenko, S.P. Chigrinov, V.Z. Shuklin, having considered the issue on constitutional legality in the Republic of Belarus, guiding by Article 24 of the Code of the Republic of Belarus on judicial system and status of judges, Article 44 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 80 of Rules of Procedure of the Constitutional Court,
RULED:
1. To adopt the Message of the Constitutional Court of the Republic of Belarus to the President and to the Chambers of the Parliament of the Republic of Belarus "On constitutional legality in the Republic of Belarus, 2007" (text is enclosed).
2. To publish the Message "On constitutional legality in the Republic of Belarus, 2007" in newspapers "Zvayzda" and "Narodnaya gazeta" in ten days period of time from the date of adoption, as well as in National register of legal acts of the Republic of Belarus and in Bulletin "Vesnik Kanstytutsijnaga Suda Respubliki Belarus".
To President
of
To House of Representatives
of National Assembly
of
To Council of Republic
of National Assembly
of
MESSAGE OF CONSTITUTIONAL COURT OF REPUBLIC OF
ON CONSTITUTIONAL LEGALITY IN
Republic of Belarus on the contemporary stage continues to develop based on the fundamental constitutional principles. In practice of the state and social life are used and realized all essential constitutional legal democratic institutions including the institution of the constitutional control. Administration of the state shall be carried out by people through its representative and other bodies, constitutionally secured and guaranteed basic rights and freedoms of man and citizen.
The measures are taken for the innovative development of the economy, stimulation of the perspective invest projects, technological modernization of the productive capacity, application of the science capacious industries.
To fulfill the goals of a social state the conditions are created for the securing for the citizens of the adequate level of life. There is a compensation of the considerable part of the expenses on the housing and communal services, it is secured the support of the socially vulnerable levels of the population, it is raised the sizes of pensions and benefits, the system of address aid is under improvement. Great importance is paid to the investments in health of a person, his/her professional, cultural and personal development and, consequently, in the future of the nation.
Becoming and development of the social and economic relations demand not only new solutions of the legislation but also forming of the qualitative renovated legal system of the state, oriented on the securing of the needs of the society. In this respect in the process of debureaucratization of the state apparatus in the passed year the procedural norms started to appear which contribute not only to the establishing of the equitable balance between private and public interests but also more effective realization by the citizens and juridical persons of their rights and lawful interests. In the same direction is improved the legal basis of the realization of the principle of “one window”.
At the protection and securing of the rights and lawful interests of citizens and juridical persons, proper consideration of the applications of them to the state bodies is aimed Decree of the President of the Republic of Belarus of 15 October 2007 № 498 “On the additional measures of work with the applications of citizens and juridical persons”. There are grounds to believe that consideration of the applications especially by the local authorities to which citizens apply more often for the solution of concrete problems shall be more operative and qualitative. However a big amount of work shall be done to strengthen supremacy and equity of law through the stipulated by the legislation administrative procedures.
The main goal of the improvement of the normative legal acts is forming of the effective state for the people, which secures the trust of the citizens to the state and the law which is created by it. Parliament of the country has adopted in the past year over a hundred laws essential for the system of law and had made over sixty alterations and addenda into the acting laws.
Law creation is a complicated process. While regulating of the multilevel relations by some of the normative legal acts one can face the lack of complex and system character, it take place collisions of the norms of law. In the opinion of the Constitutional Court numerous changes of some normative legal acts quite often can be explained by the lack of the proper prognostication of the legal and social consequences of the coming into force of the adopted norms. At the same time retardation of the process of taking of the acts of the acting legislation in line with modern life and approaches to the regulation of the social relations reflects negatively law enforcement practice.
In some laws the responsibility of the state before the citizen is set forth in general form and this makes it difficult and limits the possibility of the citizens of the protection of their rights and lawful interests before the court. In absence in the legislation of the clear instructions on the procedural issues citizens in case of application to the court not always have the possibility to justify their claims to the state even in case of vividness of violations of their rights.
The condition of the constitutional legality in the Republic of Belarus in 2007 was evaluated by the Constitutional Court on the basis of studied and examined cases and materials. In the past year it was examined 1214 applications of citizens, including 60 collective. The total number of those who made their appeals to the Constitutional Court was 4440 citizens, there were 90 applications from state bodies including 10 from the House of Representatives of the National Assembly of the Republic of Belarus. Legal problems before the Constitutional Court were raised in the applications of 105 different organizations. In 2007 there were adopted 30 decisions in which the Constitutional Court had paid attention of the norm making and law enforcing bodies on the obligation of execution in the law making and law enforcing activity of the constitutional norms and principles which have the supreme importance while creating of the state for people. Contemporary state shall serve for the good of its citizens, secure their rights and freedoms, promote the progress of the society. In the decisions of the Constitutional Court of 2007 it was strengthened the supremacy of the Constitution and constitutional principles, which reflect the fundamental values of the Belarusian society and state.
For the law creation the main goal shall be full and clear legal regulation of the social relations. As the result of the terminological inaccuracies and omissions in the legal norms, its non-coordination leads to the ambiguous understanding and application in practice of such norms and it results legal conflicts. In its Judgment of 12 September 2007 dedicated to the issues of pension security the Constitutional Court had expressed position that variations in reading and ambiguous understanding of the normative legal acts in practice are the consequences of the faults in drafting the laws. Often in the laws adopted for the regulation of different legal relations there are used only slightly coincided with each other on sense terms and definitions, the scope of which by citizens and sometimes by the law enforcers artificially is transferred into other sphere of the legal regulation. Sometimes one can met cases when the novels implemented in one normative legal act do not meet proper realization in the other normative legal acts which regulates similar relations. It makes it difficult to understand unambiguously of the norms of the legislation and forming of the joint law enforcing practice.
Having examined the issue on the legal regulation of the activity of the garage co-operatives (Decision of 28 August 2007) the Constitutional Court had found that many norms of the Model Regulations of the co-operative on constructing and maintenance of open car parks or garages for storage of means of transportation approved by the Resolution of the Council of Ministers of the Republic of Belarus of 5 August 1977 № 254 which became the basis for the regulations of the concrete garage co-operatives are for a large extent outdated and not in full in line with the acting legislation. In practice it results violation of the interests of garage co-operatives themselves and the rights and lawful interests of citizens. The authorized bodies were proposed to take the measures on bringing by-laws related to the activities of garage co-operatives into line with the Constitution, norms of the Civil Code, acts of the President of the Republic of Belarus.
On the necessity of following the principles of completeness and consistency of the legal regulation was pointed out in Decision of the Constitutional Court of 2 March 2007. In it the Constitutional Court again acknowledged its position expressed in the earlier adopted decisions that on each type of the local tax and due it shall be clearly on the level of the law defined the basic elements of the taxation (subjects and objects of the taxation, taxation base, and maximum amounts of rate). In Decision of the Constitutional Court of 28 August 2007 it was noted the necessity of the adoption of the normative legal acts which regulate the order of definition of the amount of the taken expenses on education in the educational institutions which carry out the training of the officers staff for the purposes of timely compensation into the budget of the sums spent on the education. In its Decision of 16 October 2007 the Constitutional Court had paid attention of the state bodies on the non-coordination of the normative legal acts in the part of definition of the grounds for the cancellation of the agreements (contracts) with the young specialists before the expiration of the obligatory term of work on the assignment and had proposed to define the concrete list of cases, when young specialists are released from the compensation of the expenses spent on their education.
The Constitutional Court considers that unclearness and uncertainty of the provisions of the normative legal acts, their contradictoriness and ambiguity can lead not only to the violations of the rights and lawful interests of citizens but also to the abuse from their side of the given rights. In Decision of 6 April 2007 the Constitutional Court had noted that citizens often systematically hire out their dwellings for different periods (days, hours) but there is no proper legal regulation of such relations. In this respect the Constitutional Court had come to the conclusion that systematic hire out by citizens-owners and citizens-tenants of the dwellings on the short terms on its characteristics in practice shall be considered as entrepreneurs activity in performing of it as process (an act) aimed at the systematic receiving of profits. At the same time clear consideration criteria to the entrepreneurs activity of the hire out by the physical persons of the dwellings to other citizens for the short-term living are not defined and it allows for unfair citizens to avoid payment of the taxes into the budget.
The Constitutional Court had considered the issue on the possibility of application in the pension legal relations other identification documents in case the passport with the machine-readable data on the religious grounds was not received by the citizen. In adopted on 11 January 2007 Decision the Constitutional Court noted that for the mentioned legal relations reliability of the justification of the necessary data is important. In this respect the competent bodies were proposed to find appropriate variant of the solution of the issue of identification while fixing of the pension. In the opinion of the Constitutional Court such approach will be in compliance with principle of the priority of the rights and freedoms of a person, will secure the predictability of the development of the legislation, non given the retroactive force to the newly adopted legislative acts, aggravating the rights and freedoms of citizens and shall guarantee preservation during certain time of the obtained earlier and secured rights and freedoms. The mentioned approach was put on the basis of the legal position of the Constitutional Court expressed in Decision of 18 January 2007 on the necessity of specification of the provisions of the legislation which regulates the housing legal relations.
In Decision of the Constitutional Court of 2 March 2007 it was noted that the limitations of the rights of citizens on leaving of the Republic of Belarus are stipulated by law and validly realized in practice in those cases when leaving of citizens evading of execution of their obligations could resulted in violation of the constitutional rights and freedoms of other persons.
The Constitutional Court in its Decision of 5 April 2007 had paid attention that the constitutional principle that guarantees the access to justice in some cases is violated for example in case of the absence of the normative prescript of the right on the appeal to the court of the written warning of the Plenipotentiary for religions and nationalities passed regarding the religious organization.
Having considered the issue on the right of the physical persons on the legal assistance in the administrative process the Constitutional Court in its Decision of 15 June 2007 noted that norms of the Administrative Procedural Code of Executions of the Republic of Belarus specify the different scope of rights for the rendering of legal aid for the participants of the administrative process. Thus, the individual person, in relation to whom the administrative process shall be conducted, may exercise his/her right by himself/herself or may use legal aid of a defense counsel who may be strictly an advocate; at the same time, a victim shall have right to use the services of the representative who may be advocates and other persons whom a victim entrusts to present his/her interests. The Constitutional Court had proposed to the respective state bodies to secure the action of the constitutional principles of the equality of all the persons before the law and of the accessibility of legal aid.
While delivering Decision of 4 June 2007 the Constitutional Court was guided by the principle of equality of everyone before the law and decided that if citizens (tenant, owner of the dwelling, member of the organization of citizens-builders) would settle in the dwelling their disabled parents and disabled parents of the husband (wife) and by that became in need of improvement of the living conditions, they in accordance with law has the right on putting in the list of persons in need of improvement of the living conditions since the moment of settling of mentioned persons and not since expiration of the five year term since worsening of their living conditions irrespective of the fact disabled parents of which of the married couple were settled in the dwelling.
Based on the mentioned above principle the Constitutional Court in its Decision of 13 September 2007 had considered the issue on the application of the equal approach to the calculation of the long service for the fixing of the pension for the workers in case of the equal conditions of work in the same sub-division of the ministry (irrespective from the definition of its name in connection with the rename of the state in accordance with the Law of the Republic of Belarus of 19 September 1991). In the opinion of the Constitutional Court it is necessary to define clear and unambiguously the rights of persons, who pretend to the inclusion of the time of work to the long service for the fixing of the pension, in maximum way to secure in this case of the equality of everyone before the law.
On the analogous principles was based Decision of 14 December 2007 in which the Constitutional Court had noted the difference of the approaches of the state bodies, including courts, to the solution of the issue of the compensation of the expenses incurred by the consumers on the rendered to them assistance from the part of the advocates and from the part of the representative of the public association of consumers. In a number of cases the courts rejected in compensation of such expenses and by that deprive the consumer of the right to the full compensation of the damages caused to him by the non-execution or by improper execution of the obligation on the contract, including the expenses connected with the rendering of the assistance from the part of the public association of consumers. The Constitutional Court had come to the conclusion that the realization by the consumer of the right to assistance from the part of the public association of consumers shall be secured with the possibility of collection from the defendant of all the expenses which the consumer had to bear in connection with protection of the violated right.
In Decision of 28 August 2007 the Constitutional Court had noted that by the Regulation on the order of organization and holding of the centralized testing adopted by the Resolution of the Council of Ministers of the Republic of Belarus of 6 June 2006 № 714 did not contain the possibility of the use by the university entrants of the Belarusian language on equal terms with the Russian on all the stages of holding of the centralized testing. Such an approach did not secure the realization of the constitutional right of citizens on the use of two state languages.
For the exclusion of the disputes on the competence of the local executive and administrative bodies in the sphere of providing of the services of the automobile transportation for the population for the purposes of the development of the honest competition of the automobile conveyance providers the Constitutional Court guided by the principle of the positive obligation which presuppose co-ordination of the authorities with the obligation, responsibility and financial opportunities, defined by law, in Decision of 10 May 2007 had proposed to stipulate in the legislation the obligation of the local executive and administrative bodies to co-ordinate adopted by them decisions on the organizations of the suburban automobile conveyance of passengers which are realized on the different administrative territorial units.
Having examined the issue on the personal pensions fixed in accordance with the legislation of the USSR, in Decision of 29 May 2007 the Constitutional Court had noted that in case of absence of the legislation of the Republic of Belarus which regulates respective social relations shall be applied acts of the legislation of the USSR which regulate given relations and do not contradicts with the legislation of the Republic of Belarus. As far as in the Republic of Belarus was adopted acts of legislation on the order and conditions of fixing of the pensions on special merits before the Republic of Belarus, the legislation of the USSR on the personal pensions can not be applied.
Realization by the norm making bodies of the decisions of the Constitutional Court allows significantly improve in practice condition of the system of law of the Republic of Belarus. In the year 2007 it was executed a number of the earlier adopted by the Constitutional Court decisions. Thus, since 1 of January 2008 entered into force Decree of the President of the Republic of Belarus of 17 December 2007 № 643 “On simplification of the order of departure from the Republic of Belarus” by which had been realized the judgments of the Constitutional Court of 27 September 2002 and of 4 October 2005. It was stipulated that passport of the citizen of the Republic of Belarus is valid for the temporary departures abroad without putting in it a mark about the temporary departure from the Republic of Belarus.
Position of the Constitutional Court stated in Decision of 4 October 2006 on the securing of the right of the citizens on getting of the full, authentic and timely information about the technical normative legal acts which are obligatory for the execution by the citizens and juridical persons was reflected in Decree of the President of the Republic of Belarus of 16 July 2007 № 318 “On the order of bringing to the general notice of the technical normative legal acts”.
By the Law of the Republic of Belarus of 20 July 2007 “On alterations and addenda into the Labour Code of the Republic of Belarus” in Articles 47 and 58 of the Labour Code were realized the legal position of the Constitutional Court expressed in Decision of 28 June 2002. It was introduced the liability of the employer for the violation without a good cause of the order and terms of payment of salary and was defined the order of indexation of the salary in case of violation of terms of its payment.
Propositions of the Constitutional Court stated by it in a number of decisions that were dedicated to the right on the freedom of movement and right of the choice of residence stipulated in the Article 30 of the Constitution of the Republic of Belarus were realized in Decree of the President of the Republic of Belarus of 7 September 2007 № 413 “On the improvement of the system of the registration of citizens in the place of residence and place of stay”.
By the Law of the Republic of Belarus of 12 June 2007 “On the alterations and addenda into some laws of the Republic of Belarus on the issues connected with the discharge from the office of the suspect or the accused by the body which is carrying out the criminal proceedings” was executed Decision of 2 November 2004 on providing of the monthly state benefit of the persons discharged from the office by the bodies which carry out of the criminal proceedings.
Position of the Constitutional Court expressed in Decisions of 4 July 2001 and of 15 November 2001 on the necessity of securing of the constitutional rights of citizens while considering the cases on the administrative offences was realized in the Administrative Procedural Code of Executions of the Republic of Belarus that had entered into force since 1 March 2007.
Decision of 14 April 2007 that is dealing with the rendering to the families with many children of the financial assistance by the state in compensation of the debt on the soft credits was executed in Decree of the President of the Republic of Belarus of 7 September 2007 № 414 “On the alterations and addenda into some decrees of the President of the Republic of Belarus on the issues of house building”. In Decree of the President of the Republic of Belarus of 14 April 2000 № 185 was given the definition of the family with many children for the purposes of rendering the financial support from the state in compensation of the debt on the soft credits.
Decision of the Constitutional Court of 28 August 2007 in which were decided the issues of the legal regulation of the activity of garage co-operatives was realized in Decree of the President of the Republic of Belarus of 28 January 2008 № 43 by which was adopted the Regulation on the order of the registration of the citizens who are in need of the places of keeping of the vehicles and Regulation on the creation and activity of the garage co-operatives and co-operatives which fulfill exploitation of the automobile park places.
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The further development of the Republic of Belarus as a democratic, social state, ruled by law presupposes the necessity of forming of the qualitively renewed legislative base adequated to the goals and aims before the state and directed to the securing of the guaranteed by the Constitution rights and freedoms of man and citizen. Strengthening of the constitutional legality serves for the adoption of the laws of direct action. Stipulated in them comprehensive procedures of the realization of the legal norms are the guarantee for the securing of the rights and lawful interests of citizens, subjects of business activities, serve as the basis for the protection in the court.
Effectiveness of the application of the legislation is possible only in case of improvement of the institute of the constitutional control which shall solve such issues of highest importance as realization of the principle of the supremacy of the Constitution and its direct effect in the territory of the Republic of Belarus, securing of the constitutionality of the normative legal acts in the state, strengthening of the legality in the norm making and law enforcement.
Advancement of the quality of life of people is not only in the increasing of the welfare of the population but in the creation of the optimum legal environment which gives confidence to the citizens in securing of their rights and freedoms. The Constitutional Court considers that equally with the solution of the social economic issues the state on the new stage of its development shall achieve non less important aim: forming of the constitutional thinking of law enforcers, ability to apply in practical activity directly the norms of the Constitution of the Republic of Belarus and start in process of decision making from the fundamental constitutional principles, which form the juridical basis of the state.
Achieving of the mentioned goals will serve to the securing of the civil consent in the society, legal education of citizens in the spirit of the respect and observing of the constitutional values, building of the state for the people.
The Present Message was adopted at the session of the Constitutional Court of the Republic of Belarus of 27 March 2008.