22 January 2001 № D-105/2001
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 the issue on constitutional legality in the republic of Belarus, guided by Article 44 of the Law "On the Constitutional Court of the Republic of Belarus" and by Article 80 of the Rules of Law of the Constitutional Court,
RULED:
1. To adopt 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 2000" (text is appended).
2. To publish the Message "On constitutional legality in the Republic of Belarus 2000" in newspapers "Zvyazda" and "Narodnaya gazeta" in ten days term from the date of its adoption, as well as in journal "Vesnik Kanstytutsijnaga Suda Respubliki Belarus".
Presiding Officer —
Chairman of the
of the
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 Constitution of the Republic of Belarus shall determine our state as a democratic, social state based on the rule of law (Article 1). That constitutional norm shall oblige state bodies to pursue the policy on stabilization of economy, on regulation of economic activities in the interests of an individual and for the public benefit, on involvement of citizens in the government of the society and the state, on realization of the principle of mutual responsibility of state and citizen. Those activities are directed to safeguarding of human rights and freedoms as the supreme goal and value of society and the state (Article 2 of the Constitution). The main and the permanent task of Belarusian State, as of any democratic social state based on the rule of law, shall be securing of the constitutional rights and freedoms of each individual and of each citizen. Timely adoption and renovation of the acts of legislation, forming of law enforceable practice which meet the spirit and the letter of the Constitution and the requirements of the modern development of the state and society shall contribute to solution of the given task. In the Republic only for the last four years current legislation have been renovated essentially, there have been adopted 18 Codes and more than 400 laws aimed at regulation of the most important social relations as well as at realization of the constitutional rights and freedoms. In that connection the role of the constitutional control in XXI century is considerably raising since constantly arising new requirements and tendencies of social development specify the necessity of adequate and timely improvement of legal system, make additional demands on state institutions which shall create conditions for the full ensuring of the rights and freedoms of each individual and citizen and proper exercise of the obligations imposed thereupon. Activities of the Constitutional Court in a democratic state based on the rule of law shall make it possible by civilized way to eliminate errors of legislation, by legal means exclusively to solve conflict situations among state bodies, social associations, officials and citizens, restore supremacy of law and equity. That shall meet the interests of both citizens and the state and society as a whole. I In accordance with part one of Article 116 of the Constitution supervision of the constitutionality of enforceable enactments of the state shall be exercised by the Constitutional Court of the Republic of Belarus. Function of the constitutional control by the Constitutional Court is an inalienable condition for forming belarusian state as a democratic social state based on the rule of law. Exercise by the Constitutional Court of that obligation has been carried out, first of all, by means of examination of the incoming materials including individual and collective complaints of citizens on the basis of Articles 40, 116, 122 and other Articles of the Constitution. Those materials according to Article 44 of the Law "On the Constitutional Court of the Republic of Belarus" has become the basis for the estimation of constitutional legality in 2000. Examination of the cases in the Constitutional Court is conditioned by the contradictions in legislation including those which are raising on objective reasons, by impossibility in many instances of law applyers to give unique determination of whether the enforceable enactments conform to the Constitution. Constitutional rights and guarantees for their ensuring shall not always find in effective legislation necessary development and realization in practice. Often enforceable enactments adopted in fulfilment of the act of higher level are both at variance with its norms and are out of the range of the subject of admissible regulation. The Constitutional Court emphasizes that for the last period there have been cases where both enforceable enactments adopted before and those adopted after the entry into force of the Constitution of the Republic of Belarus were found to be unconstitutional. Only profound and all-round analysis of enforceable enactments as well as practice of their application which is carrying out in the Constitutional Court shall make it possible to settle a constitutional dispute with an allowance for the Constitution and for the universally acknowledged principles of international law the supremacy of which the Republic of Belarus recognises (Article 8 of the Constitution). While verifying constitutionality of the enforceable enactments the Constitutional Court has given its legal position on the points at issue and thereby, has established constitutional legal principles which are of fundamental significance for lawmaking activities and law enforceable practice. In 2000 the Constitutional Court of the Republic of Belarus has delivered 28 decisions aimed at the protection of the interests of both many thousand of citizens, economic entities and the state, society. By delivering its decisions the Constitutional Court has been proceeded from the necessity of securing the supremacy of the norms of the Constitution as well as their direct effect (Article 137 of the Constitution). The experience specifies that not all the state bodies and officials understand properly the constitutional requirements on the supreme legal force of the Basic Law that adversely affects the forming of the relevant law applicable practice. Acts of tax legislation is subject to yearly examination by the Constitutional Court. The importance of examination of that category of cases is conditioned by the fact that on the one hand, norms of tax legislation involve constitutional rights and obligations of citizens and on the other hand Ќs- interests of the state as the owner of centralized cash funds (budget, state extrabudget funds). The main source for forming state centralized cash funds shall be taxes, dues and other compulsory payments. Collection of the specified compulsory payments shall be carried out in accordance with tax legislation which is not codified until now. Departmental enforceable enactments which often violate the constitutional rights, lawful interests of citizens and economic entities shall continue to take important place in the system of acts of tax legislation. The Constitutional Court in its Judgment of 16 March 2000 has found to be unconstitutional certain provisions of point 8 of Methodical instructions "On procedure of calculation of value-added tax" approved by order of State tax committee of the Republic of Belarus of 26 April 1999 with alterations and addenda thereto of 20 July 1999 which have established the collection of value-added tax from the losses incurred in operations on purchase and sale of foreign currency. The Constitutional Court has found those norms to have no legal force from the day of adoption of the given Methodical instructions. In its Judgment the Constitutional Court has specified that inclusion of the provisions, under which there have been carried out collection of value-added tax from the losses incurred in operations on purchase and sale of foreign currency, into point 8 of Methodical instructions of State tax committee is at variance with the Constitution, is not based on the norms of the Law "On value-added tax" as well as is beyond the competence of State tax committee. Legal position of the Constitutional Court has been based on the fact that object of tax, taxable base (taxable turnover) are the main elements of the tax and their determination shall refer to the powers of state bodies who shall have the right to impose taxes. Under the Constitution introduction of republican taxes and dues shall be referred to the competence of the National Assembly of the Republic of Belarus (Article 97 and 98). The Constitutional Court in its Judgment of 16 March 2000 has protected the constitutional rights of tax payers. That Judgment has been executed by State tax committee of the Republic of Belarus by way of repayment from the budget of the sums unlawfully kept back (collected) in accordance with the effective legislation. Decision of the Constitutional Court of 5 May 2000, where there have been carried out analysis of Decision of Mogilev City Council of Deputies of 18 February 2000 "On collection of duty from legal entities for use in entitlements of the name "Mogilev" (and its derivatives)" for its conformity to the Constitution and to the laws of the Republic of Belarus, has been aimed at the protection of the constitutional rights and obligations of citizens in the sphere of tax law relations. Under Article 121 of the Constitution the setting of local taxes and dues in accordance with the law shall fall within the exclusive competence of the local Councils of deputies. The Constitutional Court deems that the content of exclusive competence of local Councils of deputies on the setting of local taxes and dues shall include both their right and their obligation to act precisely according to the law. On the basis of the analysis of the package of the legislative acts on the given issue the Constitutional Court has found that adjustment with the bodies of local government on the entitlements of enterprises, establishments, organizations with obligatory specification in them of their location shall not envisage collection of any payment, and that legislative acts shall not envisage collection of dues for use by legal entities in their entitlements of the name of the administrative and territorial unit where they are situated. The Constitutional Court has proposed Mogilev City Council of Deputies to bring its decision into line with effective legislation. To a certain extent that decision has been corrected by decision of 8 June 2000. Decisions of the bodies of local government and self-government have been previously violated the rights of tax payers, and the results of their examination in the Constitutional Court signify that. One of the reasons of such a situation is that relations in the field of local taxation in the Republic of Belarus have not fully regulated in the legislation. The Constitutional Court deems that the existing gaps in legal regulation of local taxation may be bridged in the Tax Code the adoption of which is planing for 2001. Major shortcoming of tax legislation is its instability and contradictoriness. With the object of protecting the interests of the economic entities, other tax payers, in the opinion of the Constitutional Court, it is necessary to achieve the situation where tax legislation remains stable during financial (budget) year at least. Alterations in tax legislation during the specified period of time which aggravate legal status of tax payers should be made in exceptional instances only. Optimal is an approach under which tax payer are timely notified about the alterations - at the time which shall make it possible to bring the possible losses as a result of new decision of the lawmaker down to a minimum. The subject to examination of the Constitutional Court has become Resolution of the Council of Ministers of the Republic of Belarus of 27 July 2000 No. 1154 which approved the Procedure of provision and summing of labour leaves. The specified act envisages that additional leaves shall be joined to the basic minimum leave (point 8). The length of labour leave may not exceed 35 calendar years. The Constitutional Court in its Decision of 22 September 2000 "On the procedure of provision and summing of labour leaves" has emphasized that provisions of point 8 of the specified Procedure are at variance with the Law "On bases of service in state apparatus", Decree of the President of the Republic of Belarus of 9 September 1997 No. 16 and Decree of the President of the Republic of Belarus of 26 July 1999 No. 29 and therefore, may not restrict total length of the basic leave and additional leaves which are envisaged by the given law and decrees of the President of the Republic of Belarus due to the fact that they have supremacy and direct effect. The Constitutional Court in its decision has been proceeded from the fact that additional leave for the work in harmful production conditions with the length established by legislation shall be provided in full. Such a position of the Constitutional Court is conditioned by the fact that among all types of additional leaves leave for the work in harmful production conditions shall take special place. Its provision is directed to realization of the constitutional right of citizens not only to holidays (Article 43 of the Constitution) but also the right to health care (Article 45 of the Constitution). While summing such a leave with the basic leave their total length, in instances specified in legislative and in other enforceable enactments, may not be more than 35 days. In order to secure the rights of workers to be provided with additional leaves for unfixed working hours the Council of Ministers of the Republic of Belarus has been proposed to consider the issue to add point 6 of the Procedure of provision and summing of labour leaves with the purpose that the employees with part time week, but with full working day and who, in certain instances are obliged to be on overtime, shall have the right to additional leave for unfixed working hours in proportion to hours worked. It was emphasized contradictoriness and multivalued nature of certain provisions of the Procedure of the provision and summing of labour leaves (points 8, 10, 13 etc.) and the Council of Minister of the Republic of Belarus has been proposed to bring Resolution of 27 July 2000 No. 1154 into line with the acts of higher legal force and with the Decision of the Constitutional Court of 22 September 2000. In the fulfilment of the Decision of the Constitutional Court the Government has adopted Resolution No. 10 of 5 January 2001. In connection with numerous complaints of citizens to the Constitutional Court who have asked to verify the constitutionality of Resolution of the Council of Ministers of the Republic of Belarus of 25 August 1999 No. 1332 "On regulation of payments of population for use of living accommodation and public services" (with amendments made by Resolution of the Council of Ministers of 28 April 2000 No. 606) the Constitutional Court based on Article 40 and part one of Article 116 of the Constitution has come to the conclusion in its Decision of 5 September 2000 "On pay for use of living accommodation and technical maintenance of housing stock" that the specified Resolution has no regard in full to the requirements of part three of Article 51 of the Housing Code and Article 11 of the Law "On condominium". Contrary to the law the resolution has determined the rate of pay depending on both the space of living accommodation and on the quantity of those who live therein, that caused certain disproportion in pay for services rendered the owners of housing accommodation and tenants of living accommodation. The Constitutional Court has emphasized that Resolution of the Government contains no solution of the issue on the pay for auxiliary dwelling space which is used by citizens in accordance with legislation and in practice in a numbers of instances that led to unjustified collection of pay for it at the increasing rate. In the opinion of the Constitutional Court a justified approach is, if citizens who have the right to auxiliary dwelling space pay for it at the same rate as for the normative space of living accommodation. By determining norms of pay for use of living accommodation by tenants and for technical maintenance of living accommodation by the owners there should be considered the principle of social equity and first of all, with respect to socially unprotected categories of citizens (pensioners, persons of moderate means). Such an approach shall be grounded fully on the provisions of Article 7 of the Constitution which enshrines the supremacy of law which is based on the principle of equity, as well as on Article 1 of the Constitution which secures social character of our state. The Constitutional Court noted that illegality of use of the term "surpluses of dwelling space" as regards the owners, since the legislation shall envisage the right of citizens to own living accommodation without limitation of their size (Article 101 of the Housing Code). Based on that the Constitutional Court in its Decision of 5 September 2000 has proposed the National Assembly of the Republic of Belarus, the Government of the Republic of Belarus respectively: to secure realization of Article 11 of the Law "On condominium" which envisages that owners of immovable property of condominium shall cover expenses on maintenance of common property proportionally to their share in the right of common ownership to that property and exclude existing disproportion caused by the established procedure of increasing pay for "surpluses dwelling space"; to take into account the constitutional provisions on equal protection of the rights and lawful interests of citizens and due to that the rate of pay by owners of living accommodation for technical maintenance may not be over the analogous payment of tenants of living accommodation; as for the issue on the pay for use of living accommodation and for technical maintenance of housing stock to proceed from the necessity of more full consideration of the principle of social equity, especially with regard to socially unprotected categories of citizens (pensioners, persons of moderate means); to determine the procedure and conditions for more wide informing of citizens concerning the spending of funds derived from population for use of living accommodation and their technical maintenance. Relevant draft resolution of the Government will soon be complete. Issues connected with realization of the constitutional right to legal aid, fixed in Article 62 of the Constitution, have been repeatedly the subject to examination in the Constitutional Court. In its Decision of 4 July 2000 "On some issues connected with rendering legal aid convicts" the Constitutional Court has pointed out that according to criminal legislation of procedure legal aid in the criminal proceedings may be rendered not only by advocates but also by other persons (next of kin, lawful representatives) to whom norms of the Criminal Code of Procedure, which specify the rights and duties of a defence counsel, shall apply. Therefore, a person, who is admitted by the court to be a defence counsel of a defendant, shall have the right to render him legal aid also in instance, if he has been already convicted on the given case and served the sentence in the places of confinement. For those purposes defence counsel is authorised to visit the convict with the observance of the Reformatory Rules which regulate the procedure of giving visits for the convicts with advocates. Since the Constitutional Court has continued to receive the constitutional motions on other issues connected with realization of the right of citizens to legal aid the Constitutional Court on 5 October 2000 has adopted Decision "On practice of application of Decisions of the Constitutional Court of the Republic of Belarus of 02 July 1999 "On some issues of representation in court on civil cases", of 13 December 1999 "On some issues of securing the citizens the constitutional right to legal aid in criminal proceeding", of 04 July 2000 "On some issues connected with rendering legal aid to convicts" in part of realization of provisions of Article 62 of the Constitution". In the given decision the Constitutional Court has made the conclusion that the right to legal aid, which is specified in Article 62 of the Constitution and is based on the universally acknowledged principles of international law, for exercise and protection of the rights and freedoms of citizens shall be guaranteed by the state and is secured, first of all, by means of rendering qualified legal aid on the professional basis (by advocates and by other persons who are empowered to render legal aid). At the same time, based on the provision of Article 62 of the Constitution the Constitutional Court has recognized the right of citizens at any time to obtain legal aid on behalf of other persons who are not advocates or have no licence to carry out activities on rendering legal services. That right may be exercise by citizens at any time both in criminal, civil proceedings and while protecting their rights in labour, housing, administrative, tax and other legal relations. However, there should be met the requirements which shall eliminate systematic activities on rendering legal services and deriving profit therefrom unless otherwise is specified in legislation. The same condition should be observed while rendering legal aid on civil legal matters under the warrant of the convicts who are in the places of confinement. The Constitutional Court in its decision has confirmed and concretized its position expressed in its decisions previously adopted that the right at any time to legal aid of a defence counsel should be secured not only for the accused, defendant but also for the suspect in respect to whom there have been chosen detention as a preventive punishment; legal aid in criminal proceedings may be rendered by next of kin and by lawful representatives not only of the accused, defendant but also of the suspect acting as their defence counsels. They shall have the right to render legal aid on the given case also after delivery of the verdict and, therefore, to visit the convicts who serve sentences in the places of confinement. Based on the necessity of more full securing the right to legal aid specified in Article 62 of the Constitution of the Republic of Belarus and in international legal acts, the Constitutional Court has proposed the state bodies within their competence to make necessary alterations in effective legislation concerning the procedure of rendering legal aid the citizens by means of representation included, as well as legal aid for the convicts who serve sentences in the places of confinement. In its Judgment of 13 May 1999 the Constitutional Court has found part six of Article 209 of the Criminal Code of Procedure to be at variance with the Constitution and International Covenant on Civil and Political Rights to the extent where it shall not envisage the right to appeal to the court against the ruling on dismissal of the criminal case. Taken into account the fact that the Constitutional Court in its previously adopted judgments, messages on constitutional legality, proposals to law creating and law applying bodies has repeatedly pointed to direct nature of the effect of the norms concerning the right to judicial protection fixed in Article 60 of the Constitution, in the given Judgment the Court determined no term since which provisions of part six of Article 209 of the Criminal Code of Procedure shall become invalid. So far as in practice there have been emerged the issues on the right to appeal to the court against rulings on dismissal of the criminal proceedings delivered before adoption of the Judgment in question, the Constitutional Court gave interpretation of its Judgment. In its Judgment of 17 April 2000 "On interpretation of the Judgment of the Constitutional Court of the Republic of Belarus of 13 May 1999 "On the conformity between the Constitution of the Republic of Belarus, international legal acts and part six of Article 209 of the Criminal Code of Procedure of the Republic of Belarus" the Constitutional Court has explained that rulings on dismissal of the criminal proceedings may be appealed thereagainst, if they have been delivered after coming into force of the Constitution of the Republic of Belarus, i.e. since 30 March 1994. Adoption of Decision of 17 November 2000 "On the right to amnesty of the convicts with respect to whom verdicts have taken no effect due to their cassation (protest) has been conditioned by the necessity for securing and further development of constitutional principle of equity of all citizens before the law. Having paid attention to the facts which take place in judicial practice when cassations of the convicts are subject to no examination during long period of time under the circumstances beyond their control and, therefore, verdicts with respect to those persons took no legal force at the day of coming into force of the laws on amnesty, the Constitutional Court noted that in those instances the specified persons while solving the issue on application to them of amnesty find themselves in unequal position in comparison with the persons the verdicts with respect to whom have become valid. Moreover, there is a violation of the constitutional right of citizens to cassation against verdicts since certain convicts lodge no cassation with the only purpose to use the right to amnesty. In that connection the Constitutional Court has pointed out that there are grounds for finding a fair decision on the matter of application of amnesty to the convicts with respect to whom verdicts have not come into legal force. By adoption of the laws on amnesty in future it is possible to find other variants of fair solution of that matter. The Constitutional Court has proposed 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. In its reply the House of Representatives has informed that position of the Constitutional Court will be taken into consideration while elaborating relevant draft laws. By understanding difficulties which one may face, if the effect of the said laws on the expiry of so long period of time after their adoption shall be applied to the convicts with respect to whom verdicts are not valid for reasons beyond their control, the Constitutional Court considers that problem may be properly decided as a result of constitutional motions to the Constitutional Court lodged by authorized bodies and officials. The Constitutional Court in its Decision of 26 May 2000 "On some issues of realization of Article 57 of the Constitution of the Republic of Belarus has found that citizens of the Republic of Belarus under the Constitution and the Law "On universal military duty and military service" (Articles 1 and 14) shall be entitled, in particular, according to religious beliefs, to substitution of military service by alternative service. Under Article 57 of the Constitution the procedure governing military service, grounds and conditions for exemption from military service or the substitution thereof by alternative service shall be specified in law. Thus the Basic Law does not consider military service as a unique and absolute, since it shall allow the possibility for exemption from military service and the substitution thereof by alternative one. Under Article 31 of the Constitution everyone shall have the right independently to determine one's attitude towards religion, to profess any religion individually or jointly with others, or to profess none at all, to express and spread beliefs connected with one's attitude towards religion, and to participate in the performance of acts of worship and religious rituals and rites, which are not prohibited by the law. Abovestated norms of national legislation are corresponded to universally acknowledged principles and norms of international law, the supremacy of which the Republic of Belarus shall recognize. Having examined the request and materials from the Administration of the President of the Republic of Belarus, as well as from social association, the Constitutional Court concluded that citizens of the Republic of Belarus according to religious beliefs shall have often in practice no possibility to perform their duty to defend the Republic of Belarus by means of alternative service included. Impossibility of realization of the right to alternative service has been explained by certain officials as an absence of a special law that gave rise the conflicts between citizens and state, because there have been no full realization in the Republic of Belarus of the rights of citizens guaranteed by the Constitution. At the same time one should not fail to bear in mind that the Constitution of the Republic of Belarus shall have supremacy and direct effect. The Constitutional Court has pointed out that under Article 142 of the Constitution the laws, decrees and other acts which were applied in the territory of the Republic of Belarus prior to the entry into force of the present Constitution shall apply in the particular parts thereof that are not contrary to the Constitution of the Republic of Belarus. Owing to that, calling citizens to liability under Article 77 of the Criminal Code of 1960 for evasion regular conscription into military service may take place only by fulfilment the requirements of the aforestated norms of the Constitution on making by state conditions for citizens of the Republic of Belarus for both military and alternative service. The Constitutional Court deems that a conscript to alternative service who shall have the right to alternative service may be subject to criminal liability only for evasion alternative service. Quick adoption of the law on alternative service, which is now under elaboration, will serve strengthening the constitutional guarantees of citizens. In accordance with multivalued understanding by state bodies of legal status of private notaries the Constitutional Court has again examined the issues concerning their activities. In its Judgment of 23 January 1998 the Constitutional Court has envisaged that referring private notarial activities by solving the issues of taxation to entrepreneur activities is not based on Resolutions of the Supreme Council of the Republic of Belarus of 26 November 1992 and of 18 January 1994, as well as on other legislative acts. However after adoption of the specified Judgment private notarial activities of private notaries has continued to be equal to entrepreneur activities. In its Decision of 15 June 2000 "On some issues connected with legal status of private notaries" the Court has confirmed its position that notarial activities of notaries who deal with private practice shall not be entrepreneur activities. The lawmaker has granted the notaries while carrying out notarial activities equal rights and the same obligations no matter where they work in state notarial office or deal with private notarial practice. A private notary by rendering services shall not come in civil law relations with persons who apply for making notarial actions. While carrying out notarial activities a private notary shall have no right to deal with other activities except for those specified in point 22 of the Provision on notariate and notarial activities in the Republic of Belarus. A private notary shall act on behalf of the state and a private entrepreneur shall on his own behalf. In that connection registration of private notaries as individual entrepreneurs shall have no legal grounds. The Constitutional Court has established that private notaries have been unlawfully registered as individual entrepreneurs. In the fulfilment of the Judgment of the Constitutional Court of 23 January 1998 and the decision of the Constitutional Court of 15 June 2000 Executive Committees of Brest, Vitebsk, Grodno, Minsk regions and Minsk City Executive Committee in their decisions have excluded from Unified state register of legal entities and individual entrepreneurs private notaries registered as entrepreneurs who carry out their activities without making legal entity. Similar work is carrying out in other regions and that work is planning to be finished in the near future. Having studied the content of point 2 of Decree of the President of the Republic of Belarus of 18 January 1999 No. 30 "On interpretation of Decree of the President of the Republic of Belarus of 8 February 1995 No. 52", the Constitutional Court in its Judgment of 18 February 2000 has found to be constitutional norm of point 2 of the given Decree as the Decree issued within the competence of the President, which envisage his right to official normative interpretation of his enforceable legal acts with the purpose of explanation of both the content of norms under interpretation and of the procedure and conditions for their application to the existing relations. Paragraph four of part two of point 1 of Decree of the President of the Republic of Belarus of 8 February 1995 No. 52 has envisaged that economic entity should secure arrival of goods on import under a barter contract on or before 60 calendar days from the date of fulfilment of export part of the contract in question. State Supervisory Committee of the Republic of Belarus has called economic entities to liability for violation of terms of reception of goods on each shipment of production designed by single accompanying documents of goods. Economic sanctions it applied to economic entities, as a rule, have not been contested. Multivalued understanding in practice of paragraph four of part two of point 1 of Decree of 8 February 1995 No. 52 to a certain extent has been conditioned by indistinct character of its wordings, by vagueness of notion "export part of barter contract" that caused necessity for official interpretation of the Decree in question. Under the Constitution of the Republic of Belarus the state and all the bodies and officials thereof shall operate within the confines of the Constitution and the laws enacted in accordance therewith (Article 7). The President of the Republic of Belarus while exercising his constitutional powers shall have the right to issue normative legal acts and give their official interpretation. Decree of the President of the Republic of Belarus of 18 January 1999 No. 30 has explained that as an export part of barter contract, that is referred to in paragraph four of part two of point 1 of Decree of 8 February 1995 No. 52, one shall understand each export shipment of production designed by single accompanying document of goods (customs declaration, invoices etc.) or each stage of executing work (provision of services) designed by single acceptance certificate of executed work (provision of services). (It should be noted that analogous explanations were given by specialists of the authorized state bodies in mass media in 1995 after adoption of Decree No. 52 (Natsionalnaya ekonomicheskaya gazeta, 1995, Nos 8, 15, 24). Due to enforcing new Civil Code of the Republic of Belarus, Land Code of the Republic of Belarus and Housing Code of the Republic of Belarus there have been emerged a number of issues connected with possession, enjoyment and disposal of plots of land which are in the property of citizens - members of gardening association. Citizens in their complaints to the Constitutional Court raised the questions on the procedure of lease of plots of land which are privately owned by members of gardening association, including the instances of their temporal living for beyond the boarders of the Republic of Belarus. The Constitutional Court emphasized that land legislation does not regulate in full relations connected with realization by members of gardening associations of the competence of the owner to plots of land owned by them. In particular, there is no specification of the procedure of lease of the given plot of land for other persons, as well as of disposal of plots of land both while temporal living of a member of gardening association for beyond the boarders of the Republic of Belarus, as it is specified in Type rules, and in other instances. The Constitutional Court in its Decision of 26 April 2000 "On the necessity to improve land legislation concerning the rights of members of gardening associations who are owners of plots of land" has proposed the Council of Ministers of the Republic of Belarus to speed up adoption of new Type rules of gardening association based on civil and land legislation, and in case of necessity to make competent bodies of state power proposals envisaging more full legislative protection of the rights of the members of gardening associations who are owners of plots of land. Having analysed Provision on licensing guard activities in the Republic of Belarus approved by Resolution of the Council of Ministers of the Republic of Belarus of 19 February No. 262 the Constitutional Court in its Decision of 28 February 2000 has come to the conclusion that the Provision in question which in fact has determined exhaustive list of persons for whom economic entities which carry out guard activities should secure unimpeded access to their units (territory) is at variance with the norms of the Constitution, laws on the procurator's office, on the bodies of state security, on the Committee of state control, Criminal Code of Procedure, Customs Code that in practice contrary to the requirements of those laws makes certain difficulties in realization of the functions by authorized officials of single state bodies. The Constitutional Court has emphasized that norms of laws, which determine competence for access of authorized officials of state bodies to units (territory) of enterprises, establishments, organizations irrespective of the form of ownership and jurisdiction for performing by them their functions in the specified procedure, shall have direct effect and may not be restricted by by-laws. The Government of the Republic of Belarus has been proposed to make to the given Provision necessary specifications for excluding its multivalued understanding and application in practice. Proposals of the Constitutional Court has been realized by the Government in its Resolution No. 781 of 31 May 2000. Analysis of complaints to the Constitutional Court shall indicate that multivalued understanding and application of the norms of effective legislation is one of the reasons for their raise. Thus the complaint of a citizen, who was discharged from the bodies of internal affairs and who has special commissioned officer's rank, has specified that while calling him to fixed-term military service with accordance with the general practice under Article 15 of the Law "On universal military duty and military service" there have not been taken into account his officer's rank as well as the term of service in the bodies of militia. Having studied effective legislation and practice of its application, the Constitutional Court in its Decision of 9 November 2000 emphasized that under Article 39 of the Law in question persons of higher, senior, medium-level commanding staff, who have special ranks and retired from the Ministry of Internal Affairs of the Republic of Belarus shall be put on military register in the given them relevant ranks. In the opinion of the Constitutional Court as regards the persons of commissioned officer's staff, who were transferred to the reserve from the bodies of internal affairs and who are calling to military fixed-term service, for those persons there may be used differentiated approach, similar to that as for the military cadets, cadets of educational institutions of the Ministry of Internal Affairs included; terms of military service of the cadets shall be reducing depending on the term of education. In that connection the Constitutional Court within the frames of Article 7 of the Law "On the Constitutional Court of the Republic of Belarus" has refereed to competent bodies with the proposal on regulation of the given relations in accordance with the specified Law. State Secretariat of the Security Council of the Republic of Belarus has supported the conclusions of the Constitutional Court that legal regulation of certain issues of military registration and calling to military service shall be differ in contradictory and multivalued nature and refereed to the Council of Ministers of the Republic of Belarus with the proposal on making relevant alterations and addenda into enforceable enactments of the Government as well as for proper solution of the specified issues in new draft law on universal military duty and military service. There were complaints to the Constitutional Court from the citizens, who took part as members of special formations in mine clearing of the released from German-Fascists occupation territories in 1943-1945, on the issue of increasing their pensions taken into account the time period of their service in those formations. The Constitutional Court has adopted on 17 March 2000 the relevant decision and forwarded to the Council of Ministers its motivated reasonable proposal on insertion in the record of work of the specified persons of the period of their participation as members of special formations in mine clearing of released territories. That proposal has been taken into account by the Government while preparing relevant draft law which is submitted for consideration of the National Assembly. The subject to examination of the Constitutional Court has been the complaint of members of the Council of Belarusian committee of veterans of the units of special risk concerning the issue on pension security of servicemen who are in reserve and those retired from among veterans. Having analysed effective legislation on the given issue the Constitutional Court on 7 March 2000 has referred to the Council of Ministers of the Republic of Belarus with the proposal on introducing into the House of Representatives of the Republic of Belarus of the draft law envisaging increase of the scale of retirement pensions for the persons of the units of special risk, on their more full social protection. Publications on the given issue in periodicals signifies social importance of the problem, as well as the necessity of its solution. Based on the necessity of securing the supremacy of the Constitution and direct effect of its norms last year the Constitutional Court has adopted decisions on other issues concerning the rights and freedoms of citizens. By settling each decision the Constitutional Court analyses both the Constitution of the Republic of Belarus and international legal acts (Universal Declaration on Human Rights, International Covenants on Civil and Political Rights, on Economic, Social and Cultural Rights, UN Documents etc.). In virtue of the fact that Belarus, as it is enshrined in the Constitution (Article 8), shall recognize the supremacy of the universally acknowledged principles of international law, they are binding for Belarus. The Constitutional Court shall also take into account that according to Article 15 of the Law "On international treaties of the Republic of Belarus" universally acknowledged principles of international law and norms of international treaties of the Republic of Belarus which have come into legal force are the part of effective in the territory of the Republic of Belarus law. Norms of law of international treaties of the Republic of Belarus which have become valid are the part of effective in the territory of the Republic of Belarus legislation, are subject to direct application, except for the instances when according to an international treaty there should be issued national act for the application of those norms, and they shall have legal force of that legal act by which the Republic of Belarus expressed its consent to the obligatory nature of the relevant international treaty. Equally with that the Constitutional Court refers frequently to European Convention on Human Rights by which the European Court on Human Rights is guided in its activities. Analysis of the specified Convention which is not obligatory for the Republic of Belarus, as well as of decisions of the European Court shall promote the determination by the Constitutional Court of the Republic of Belarus of its position on concrete issues. Lately decisions of the Constitutional Court have been based solely on the norms of the Constitution and of the norms of international law. By estimating execution of the decisions adopted in 2000 as a whole, the Constitutional Court notes that decisions of the Court have been executed or are at the stage of execution. In 2000 there have been also executed a number of decisions delivered by the Constitutional Court in 1999, as well as there have been realized proposals introduced by the Court into state bodies for the improvement of the legislation. Thus there have been restored the privileges for the participants of the Great Patriotic War on pay of land tax for the lots set aside for individual garage. Head of the State as the guarantor of the Constitution, of the rights and freedoms of citizens pays much attention to the execution of the decisions adopted by the Constitutional Court. In 2000 the Constitutional Court has co-operated actively and fruitfully with the Council of Ministers in the sphere of strengthening constitutional legality and improvement of current legislation for bringing it into line with the Basic Law. Some complicated issues were solved by the Constitutional Court as a result of constitutional motions of the Supreme Economic Court. More close and active in the field of constitutional control and, therefore, in the field of making our state as a democratic social state based on the rule of law had to be co-operation with the Chambers of the Parliament where many citizens lodge their complaints. In 2000 there have been no proposals on behalf of the Chambers of the Parliament on verification of the constitutionality of enforceable enactments. During three years and a half there have been no constitutional motions on behalf of the Supreme Court, but, as foreign practice signifies, the considerable number of complaints to the constitutional courts are constitutional requests of the courts of common law. That makes it possible to solve the disputes with participation of citizens in strict compliance with constitutional requirements, to secure promptly unified judicial practice and to find to be invalid and unconstitutional enforceable enactments. Under the Constitution sitting of the Constitutional Court have been hold in Belarusian and Russian, its decisions have been published in both state languages in the official publication of the Constitutional Court "Vestnik Konstitutsionnogo Suda Respubliki Belarus", in the newspapers "Zvyazda", "Narodnaya Gazeta" as well as in other official publications, that promotes securing the right of citizens to information (Article 34 of the Constitution) and for more effective legal protection of the constitutional rights and freedoms of citizens. II The Constitution, the Law "On the complaints of citizens", Order of the President of the Republic of Belarus "On measures on improvement of the work with complaints of citizens" shall consider proposals, applications and complaints to be one of the most important instruments in organization and activities of state bodies and officials on the observance of the rights and lawful interests of citizens which shall stimulate the improvement of social relations. Examination in the Constitutional Court in 2000 of personal and collective complaints, including those made at personal reception of the Staff of the Constitutional Court and of the judges of the Constitutional Court, shall signify that complaints of citizens under Article 40 of the Constitution to the state bodies and their proper solution is an effective form of influence on the improvement of the legislation, practice of its application, securing the constitutional legality in society and in the state. Last year the Constitutional Court has received more than 700 complaints of citizens, among them 58 from social associations and human rights organizations, 133 citizens - at personal reception. There have been given relevant explanations to the complaints, many of them were forwarded for examination to the competent state bodies. As for the complaints of social significance, the Constitutional Court, by delivering decisions within its competence, has stated its legal position on the issues raised as well as made relevant proposals to the state bodies. In 2000, as during last years, the majority of complaints of citizens involved violations of their rights and freedoms in the sphere of housing, labour, administrative, tax and other legal relations. Those complaints specified that local bodies, courts, law enforcing bodies, as well as certain officials do not take necessary measures on protection of lawful interests of citizens and apply enforceable enactments which, in the opinion of citizens, are at variance with the acts of higher legal force. In instances of ascertaining of those facts officials are not always responsible therefore.
The practice signifies that citizens lodge their complaints to the Constitutional Court having exhausted, as a rule, all other legal remedies in other state bodies. One of the reasons for their application to the Constitutional Court they consider to be the necessity of verification of the constitutionality of enforceable enactments on the basis of which certain disputes have been solved, since such a control in the state is vested in the Constitutional Court. Citizens in their letters inform that their complaints to the persons who shall be authorized to make proposals to the Constitutional Court are remained without satisfaction. The courts of common law, while considering concrete cases also reject them in those motions contrary to the requirements of Article 112 of the Constitution.
The Constitutional Court emphasizes that in 2000 the Chambers of Parliament has considered several thousand of complaints from citizens, there were complaints concerning unconstitutionality of the provisions of certain laws, decisions of local Council of Deputies, other enforceable enactments. However, relevant proposals have not been forwarded by them to the Constitutional Court, but the Basic Law shall vest the state and its bodies with the obligation to take all measures at their disposal to create the domestic and international order necessary for exercise in full of the rights and freedoms of citizens. State bodies, officials and other persons who have been entrusted to exercise state functions shall take necessary measures to implement and safeguard the rights and freedoms of the individual (Article 59).
Acting within the frames of its powers, the Constitutional Court shall not solve the disputes emerging in law enforcing practice on concrete issues, that is referred to the competence of other courts (courts of common law, economic courts). However, its exclusive right and direct obligation shall be exercise control over the constitutionality of enforceable enactments, including those applying while examining concrete cases. That is just what it means in the provisions of part two of Article 112, part one of Article 116, part four of Article 122, Article 137 and other Articles of the Constitution. The provisions of the Constitution to a considerable extent have found their development in the Law "On the Constitutional Court of the Republic of Belarus". In particular, Article 6 of the given Law specifies mechanism of realization of Article 112 of the Constitution. In that connection statements on the absence of the regulated by the law mechanism of application of the courts to the Constitutional Court on the verification of constitutionality of legal norms they apply while solving concrete cases are ill-founded. Moreover, one should bear in mind, that constitutional norms shall have the supremacy and shall be applied directly.
By examining complaints and applications of citizens, collective included, the Constitutional Court has paid attention to the fact of application of unconstitutional legal acts over a long period of time, notwithstanding that bodies authorized by the Constitution to raise before the Constitutional Court the issues on verification of those acts had not exercised their constitutional obligation and, thereby, had not promoted undoubted and compulsory for all bodies and officials termination of application of those acts.
The Constitutional Court continued receiving letters of citizens concerning non-fulfilment of requirements of the legislation on official publication of enforceable enactments. Due to that there are doubts of persons concerned in the legality of the actions taken with respect to them.
In 2000 the Constitutional Court has examined other complaints of citizens concerning unconstitutionality of certain enforceable enactments or their provisions, in particular, on the issues of the status of prisoners of fascism, compensation for damage caused the life and health of citizens, protection of persons suffered from tuberculosis in reformatories, early and conditional release from punishment of minors with respect to whom amnesty has been previously applied, protection of the rights of the authors of inventions, assignment of young specialists, compensation for depreciation of savings deposits of population and securities, finance building, pay for public services and electric power (with the presence of relevant privileges) by the persons who temporarily absent in living accommodation etc.
In the opinion of the Constitutional Court adoption of the Law "On Ombudsman" and granting that official the right to lodge constitutional motions to the Constitutional Court in order to initiate constitutional proceedings shall promote improvement of constitutional legality in the state and creation of efficient mechanism for the protection of individual rights and freedoms.
Granting the same right the Procurator-General as a body which carry out supervision over the strict and unified implementation of the laws, decrees, regulations and other enforceable enactments will serve strengthening constitutionality in the state. Moreover, citizens should be secured the possibility to realize the right based, in particular, on Articles 61, 116, 122 of the Constitution to appeal to the Constitutional Court against decisions of normative nature of local Councils of deputies, of executive and administrative bodies which restrict or violate their rights, freedoms and lawful interests. Realization of those proposals needs no corrections of the Constitution.
III
The Constitutional Court emphasizes that as a result of making relevant normative base and codification of legislation in the Republic there are conditions for ensuring the principle of constitutional stability, establishment of stable law order, forming legal system of new quality. Provisions of the Constitution of the Republic of Belarus and international legal acts have found their specification and development in a number of new codes and laws, proposals of the Constitutional Court on the improvement of effective legislation have been also taken into account.
Equally with that current legislative base, especially in part of realization and protection of the rights and freedoms of citizens, shall contain shortcomings which shall not promote making the state ruled by law, making open civil society.
Absence of system organization is typical for the legislative practice of last years, and the Constitutional Court has paid attention to that in its previous Messages on constitutional legality. Until now there have not been adopted the laws and other enforceable enactments stipulated directly by the Constitution or those follow from its provisions (programme laws on basic guidelines of domestic and foreign policy, on military doctrine of the Republic of Belarus etc.).
Tendency to strict regulation of certain types of social relations that creates obstacles for free and creative development of a personality, efficient activity of citizens and economic entities is considered to be a negative factor. At present, it is important to make changes towards real establishment of the presumption of lawfulness of non-prohibited behaviour of citizens in social consciousness and law applying practice, in the activities of law enforceable bodies.
Certain enforceable enactments contrary to the constitutional principle - "the law shall have no retrospective action unless it extenuates or revokes the responsibility of citizens" (part six of Article 104 of the Constitution) are given retrospective action that shall restrict the rights of citizens, aggravated their legal status. In those instances the state should secure efficient compensating mechanism for their protection.
Lawmaking activities pays no due attention to the issues of future analysis of the acts under adoption, study of the effectiveness of mechanism and requirements they contain, restoration (compensating) system of the protection of the violated rights and freedoms of a citizen, forming of public opinion as for perception of certain draft laws of social significance. All that leads in a number of cases to low effectiveness of enforceable enactments or even to negative results in application of those acts in practice.
Lawcreating bodies shall have no practice in adoption of enforceable enactments which shall envisage the period of adaptation of economic entities to the changed conditions of their activities. Some of the enforceable enactments have such a characteristic as non-balance, contradictoriness, deficiency, declorativeness, mechanical reproduction and ill-founded duplication of normative requirements of other enforceable enactments, conflict nature of legal instructions.
Some new legislative acts, for example, Labour Code contain obviously uncoordinated and contradictory to one another norms (Articles 43, 46, point 1 of part three of Article 115, Articles 120 and 210, Article 148 and part one of Article 69, Articles 247 and 249, part three of Article 268 and point one of Article 44 etc.). Common law courts, which shall solve concrete cases, play the important role in elimination of shortcomings in legislation. In the Constitutional Court opinion courts, other law applying bodies and officials by applying norms of the acts of legislation shall be obliged to observe them strictly or, in the presence of contradictions or well-founded assumptions on their unconstitutionality, to take measures, the possibilities of constitutional control included, on bringing those acts, in accordance with the established procedure, into line with the Constitution (for example, Article 245, part five of Article 400 of the Labour Code etc.).
There are instances when the rights and freedoms of citizens specified in the Constitution and in the laws are often restricting or ignoring in by-laws, and more often - in law applying activities. Thereby, there are violations of both provisions of Article 23 of the Constitution, which contains exhaustive list of restrictions of the rights and freedoms of an individual, and requirements of Article 142 of the Basic Law which envisages that the laws, decrees and other acts which were applied in the territory of the Republic of Belarus prior to the entry into force of the present Constitution shall apply in the particular parts thereof that are not contrary to the Constitution.
A number of Articles of the Constitution which shall determine human rights and contain the norms of direct effect need no specification in the law or in the enforceable enactment. That means that human behaviour who shall be guided by those Articles of the Constitution is lawful. It is possible that it is necessary to specify some constitutional norms in the laws as well as in other enforceable enactments for determination of the lawfulness of certain actions of a citizen and the state. However in practice there are instances when a citizen is refused in realization of his/her right or in his/her protection with the reference to the absence of the necessary enforceable enactment. In that case the absence of the acts, which shall specify the constitutional norm, or narrowing, restriction of the sphere of its effect should be considered in practice as violation of the Constitution and that is the ground for restoration and protection of the violated right.
In the Constitutional Court opinion today the stability of regulation of relevant social relations should be put in the forefront in the issues of management, securing the rights and freedoms of citizens. At the same time it does not mean that the norms which prevent from development of democratic processes, realization of the rights and freedoms of citizens or the norms which shall not secure proper protection may not continue to be effective. Those norms are subject to immediate revision. Daily, laborious work of the competent state bodies on revision of the acts of effective legislation and on timely reveal of the out of date norms with the object of finding them to be invalid should be conducive to that. First of all, that shall concern the norms of acts the future of which is not determined due to adoption of new acts, and that has adversely effect on law applying practice.
IV
International relations of the Constitutional Court of the Republic of Belarus are based on open character and readiness to the dialogue with any international organizations, the aims of which are development of constitutionalism and protection of the rights and freedoms of citizens. Open activities of the Constitutional Court shall make it possible for any person, international and foreign organizations included, who are interested in the problems of constitutional control, to get operative information on the Constitutional Court. Collections of judgments and decisions of the Constitutional Court are distributed to the bodies and persons concerned.
The interest which is given to the activities of the Constitutional Court of the Republic of Belarus has been expressed in holding of numerous meetings of the Chairman, Judges and staff of the Secretariat with the specialists of international organizations. Among them representatives of UNO, OSCE, ODIHR, American Bar Association, various human rights organizations, foreign observers of the parliamentary elections etc.
The Constitutional Court of the Republic of Belarus by adhering to the position on varied nature of international relations in the current year has concentrated its efforts on two main directions - development of co-operation within the frames of the Conference of the bodies of the constitutional control of new democracies, as well as the Conference of European Constitutional Courts.
Aforesaid directions have been developed dynamically that found its reflection in participation of representatives of the Constitutional Court in foreign international conferences, as well as with the support of the Head of the State in organization and holding in Minsk on 5-6 June 2000 II International Scientific and Practical Conference "Constitutional legal proceedings". Representatives of a number of constitutional courts, international organizations, scientists and practicians from various establishments of our country took part in the forum. The participants has emphasized great benefit of such meetings for the development of the constitutionalism in the CIS countries, as well as important role of the Constitutional Court of the Republic of Belarus in strengthening democracy and advance of the ideas of the state ruled by law by means of exchange of ideas and legal elaborations among the bodies of constitutional control of new democracies.
Last year's participation of delegation of the Constitutional Court of the Republic of Belarus on 19-22 October in preparatory meeting of Chairpersons of European Constitutional Courts within the preparation of XII Conference of European Constitutional Courts which took place in Brussels was of a great significance. In the final document there have been recognized massive efforts of the Constitutional Court of the Republic of Belarus on forming the state ruled by law, on the protection of the constitutional rights and freedoms of citizens, there have been expressed support to the Constitutional Court of Belarus in its activities.
* * *
In 2000 activities of the Constitutional Court has been based, first of all, on the norms of the Constitution (Articles 7, 8, 40, 59, 116) which shall oblige the state to take all measures at its disposal to create the domestic and international order necessary for the exercise in full of the rights and freedoms of citizens of the Republic of Belarus enshrined by the Constitution, and as for the state bodies, officials and other persons who have been entrusted to exercise state functions, - measures to implement and safeguard the rights and freedoms of the individual.
The practice of carrying out of constitutional control shall signify special importance of that type of activities for forming democratic social state ruled by law, strengthening the constitutional system, realization and protection of the rights and freedoms of everyone. The Constitutional Court shall secure the supremacy of the Constitution, strengthen constitutional legality by establishing in legal system of the effect of the principles of law which are fundamental basis, landmarks of norm creation process, leading ideas for law applying activities, cover all the subjects of legal relations. In its activities the Constitutional Court has established, first of all, the following principles: supremacy of law, priority of universally acknowledged principles of international law, direct effect of constitutional norms, observance of hierarchy of enforceable enactments, accessibility of justice, constitutional justice included, inadmissibility of giving retrospective action enforceable enactments which aggravate the status of the participants of legal relations, social equity, equality, humanism, mutual responsibility of the state and an individual, presumption of lawfulness of behaviour of a citizen and others. The specified principles of law are of universal nature and have regulating impact on all the spheres of social relations. Obligatory nature of those principles shall include both their priority before other law determinations and their application to all the subjects of law.
The Constitutional Court relies on, that the present Message will serve further strengthening of constitutional legality in the country, improvement of legal system of the Republic of Belarus.
The Present Message was adopted at the session of the Constitutional Court of the Republic of Belarus of 22 January 2001.
Presiding Officer — Chairman of the of the