31 January 2000 № D-92/2000
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 Article 80 of the Rules of Procedure 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 in 1999" (text is enclosed).
2. To publish the Message "On constitutional legality in the Republic of Belarus in 1999" in newspapers "Zvyazda" and "Narodnaya gazeta", as well as in "Vedamastsi Natsiyanalnaga skhodu Respubliki Belarus" and in "Vesnik Kanstytucijnaga Suda Respubliki Belarus" within ten days term from the moment of its adoption.
Presiding Officer —
Chairman of the
of the
By estimating constitutional legality in the Republic of Belarus the Constitutional Court, guiding by Article 44 of the Law of the Republic of Belarus "On the Constitutional Court of the Republic of Belarus" has been based on the studied and examined cases and materials in 1999.
I
Examination in the Constitutional Court of the most complicated issues of social significance is a generally accepted instrument for the settlement of legal conflicts in any modern democratic state ruled by law.
The Constitutional Court, while exercising the stipulated by Article 116 of the Constitution function of supervision of the constitutionality of enforceable enactments of the state, has examined 17 cases in 1999. More than 30 enforceable enactments of various levels were subjects to verification.
Analysis of the cases examined by the Constitutional Court indicates that in the observance of constitutional legality, safeguarding the rights and freedoms of citizens, in the improvement of the legislation, its bringing into line with the norms of the Constitution of the Republic of Belarus and universally acknowledged principles of international law there are problems which are required their solution.
The key issues from among the cases examined by the Constitutional Court in 1999 were the issues concerning ensuring of the rights and freedoms of citizens guaranteed by the Constitution of the Republic of Belarus.
Basic Law proclaimed the rights of citizens of the Republic of Belarus to housing which shall be safeguarded by the development of state, and private housing and assistance for citizens in the acquisition of housing (Article 48); everyone is guaranteed the right to property and contribution to its acquisition (Article 44); it is enshrined that all are equal before the law and entitled without any discrimination to equal protection of their rights and legitimate interests (Article 22). However, as it is perceived from the materials of concrete cases, the given rights and guarantees are not always duly secured in the acts of legislation which are called to regulate relevant social relations.
Thus part two of Article 5 of the Law "On privatization of housing resources in the Republic of Belarus" envisaged that a flat occupied by several tenants may be privatized simultaneously by all tenants into commonly shared property. The norm in question, which has been effective during 2 years, has violated the constitutional rights of many thousand of citizens of the Republic of Belarus to privatize the occupied living accommodation, because realization of that right has been geared to the consent of other tenants. However, courts of law had rejected complaints of citizens in judicial protection as well as did not open the issue under Article 112 of the Constitution on verification of the constitutionality of that norm. Such a verification has been carried out by the Constitutional Court as a result of the proposal of the Council of the Republic of the National Assembly of the Republic of Belarus. The proceedings were brought on 30 April 1999 and on 2 June the case has been examined in open court session.
Having analysed the provisions of the Constitution, the Law "On privatization of housing resources in the Republic of Belarus", other enforceable enactments, the Constitutional Court pointed out that restrictions on privatization of dwelling facilities shall be conditioned only by such circumstances which in principle exclude the possibility to transfer dwelling facilities into private property or objectively require the establishment of special procedure for their privatization. As for the dwelling facilities in the flats occupied by several tenants there are no circumstances of that kind whereas change of form of property does not influence on the legal regime of the places of common use of a flat.
Restriction of the right of a tenant of living accommodation to free, irrespective of the will of other tenants privatization has not been based on the requirements of Article 23 of the Constitution under which restriction of personal rights and freedoms shall be permitted only in the interest of national security, public order, the protection of the morals and health of the population as well as rights and freedoms of other persons. The Constitutional Court paid attention to the disproportion between the restrictions imposed and interests protected, since the guaranteed by the Constitution and the laws right of the citizens to privatize occupied living accommodation has been geared to the subjective discretion of other tenants, to their desire for privatization of a flat into commonly shared property.
The state by securing of the rights of citizens of the Republic of Belarus to privatization of the occupied by them living accommodation is also bound to safeguard its realization and shall guarantee the observance of the principles and norms specified in the Constitution and in the laws. At the same time, regardless of the provisions of the Constitution and the verified law on the right of the citizens of the Republic of Belarus to privatization of dwelling on the principles of voluntariness, combination of charged and free of charge character of privatization, equality of rights, that right has not been ensured in reality. Absence of the consent of one of the tenants to privatization irrespective of the motives of refusal to give that consent has ruled out the right of another tenant to privatize the occupied by him living accommodation.
Part two of Article 5 of the Law "On privatization of housing resources in the Republic of Belarus" has been found by the Judgment of 2 June 1999 to be invalid as inconsistent with the Constitution of the Republic of Belarus.
In its decision of 3 December 1999 "On some issues connected with application of part five of Article 28 of the Law of the Republic of Belarus "On militia" the Constitutional Court has examined the issues connected with free of charge acquisition of dwelling into property for the officials of militia who served in the bodies of militia no less than twenty calendar years. In view of multivalued practice which is arising while privatizing of dwelling by the given category of citizens as well as in order to banning violations of the rights and lawful interests of the citizens in question the Constitutional Court has proposed the National Assembly of the Republic of Belarus to remove from uncertainty in application of part five of Article 28 of the Law of the Republic of Belarus "On militia" by means of official interpretation.
State, as it is envisaged by Article 30 of the Constitution, shall guarantee citizens of the Republic of Belarus the right to move freely and choose their place of residence within the Republic of Belarus. According to part one of Article 101 of the Housing Code citizens and legal entities of non-governmental forms of ownership may have in their property dwelling houses, flats and other dwelling facilities without restriction of their quantity and size. Use of living accommodation inseparably linked with the consumption of and pay for public utilities by those who live therein. Obligation to pay for utilities shall be preserved in case when a tenant or an owner of property is absent. In addition, for the city and rural dwellers there were established differentiated rates for public utilities fee.
Having analyzed the effective legislation in the given sphere as well as the practice of its application the Constitutional Court has come to the conclusion that disputable issues in practice and as a result - well-grounded admonitions and complaints of citizens are emerged owing to undue legal regulation of the given relations.
In its decision of 27 October 1999 "On some issues connected with regulation of procedure of payment public utilities" the Constitutional Court has proposed the Council of Ministers to adopt additional measures on the adjustment of legal regulation and provisions for payment of public utilities by the citizens who have several dwellings, in case of their absence in one of them in connection with living at that time in another in rural locality included. Moreover, in the opinion of the Constitutional Court the issues on granting the citizens privileges on public utilities fee as well as imposition of civil legal responsibility for giving for the recalculation of public utilities fee inadequate for reality information are required more detailed regulation.
Absence of due legislative regulation of the whole circle of social relations connected with organization and activities of house building co-operatives sometimes leads to the infringement of the rights of the owners of dwelling built on co-operative basis or of their hairs. In law enforceable practice there also had not been worked out unique approaches to the solution of emerging issues. In its decision of 24 June 1999 "On some issues connected with regulation of the procedure and conditions of payments of shares in house building co-operatives" the Constitutional Court has proposed the Council of Ministers to regulate the procedure and conditions of payment of shares to the members of house building co-operatives who removed after completion of building as well as to the heirs of a shareholder who died after completion of building. With the object of executing the specified decision the Council of Ministers has adopted resolution of 22 September 1999 No. 1469 "On some issues of organization and activities of house building co-operatives" where the issues put by the Constitutional Court have been settled.
One of the most important constitutional rights of citizens which is constantly in sight of the Constitutional Court is the right of citizens to judicial protection by a competent, independent and impartial court of law which is guaranteed by Article 60 of the Constitution. The Constitutional Court has examined a number of cases on the constitutionality of the enforceable enactments which restrict the right of citizens to judicial protection. Legal position of the Constitutional Court expressed in a number of its decisions is, that realization by citizens of the constitutional right to appeal in higher or other state bodies for settling disputes shall not rule out for them possibility to appeal to the court of law.
Thus Article 209 of the Criminal Code of Procedure (CCP) of the Republic of Belarus envisaged the possibility to appeal against the ruling on dismissal of the criminal case to the public prosecutor. The provision in question has been interpreted unique in practice of the courts of law, bodies of inquiry and preliminary investigation as the provision which is excluded from the possibility to lodge similar complaint to the court of law for the verification of the legality and validity of such a ruling. Practice of application of Article 209 of CCP has been resulted in, that suspects, accused, victims and other interested persons whose rights and lawful interests have been violated by dismissal of the case on the stage of pre-trial investigation were deprived of the right to appeal to the court of law, and decisions of the bodies of inquiry and preliminary investigation which involved their rights and lawful interests turned out to be outside judicial control.
The Constitutional Court, having found the provision of part six of Article 209 of CCP, which is in practice has excluded the right to judicial appeal against ruling on dismissal of the case, to be at variance with Article 60 of the Constitution, emphasized that the right to judicial protection is a universally acknowledged principle of international law the priority of which the Republic of Belarus shall recognize as well as shall ensure that its laws shall comply with such principles. That right may not be restricted. By the Judgment of the Constitutional Court on the given case further progress has been given the already formulated in previously delivered decisions legal position of the Constitutional Court on the supremacy and immediate, direct effect of the constitutional norms.
In accordance with the Judgment of the Constitutional Court of 13 May 1999 the Law of 25 October 1999 has made relevant addenda to Article 209 of CCP under which it is envisaged the right of citizens to appeal against a ruling on dismissal of the criminal case to the public prosecutor or to the court of law. The Constitutional Court notes that by the same Law, in fulfilment of both the given Judgment and the judgments adopted at the end of 1998 on unconstitutionality of certain provisions of CCP, the Parliament of the Republic of Belarus has inserted a number of other amendments in the Criminal Code of Procedure.
Decisive significance for the enactment of the given Law, the Law which contains important democratic provisions in the field of criminal procedural relations concerning the procedure and terms of detention, inadmissibility for combination by the court of law of the functions of accusation and justice, the possibility to give evidence by the members of family and next of kin of a person who made a crime shall belong to the Head of state. In spite of the attempts of certain officials to ground inexpediency of execution of the judgments of the Constitutional Court in the time fixed, the President of the Republic of Belarus has taken just decision and, by signing the given Law, enforced it. That position of the President is fully followed from his legal status as the guarantor of the Constitution, of the rights and freedoms of citizens.
Norms of civil legislation of procedure which secure guarantees of judicial protection of citizens have also been subjects to examination of the Constitutional Court during the past year.
On 23 June the Constitutional Court on the proposal of the President of the Republic of Belarus has examined the case on the verification of the constitutionality of part two of Article 207, part one of Article 268, part one of Article 269, part one of Article 291 of the Civil Code of Procedure of the Republic of Belarus which established that decisions and rulings of the Supreme Court on the cases it examined as in first instance may not be subject to appeal in the procedure of cassation.
The Constitutional Court has found the specified norms to be at variance with Articles 21, 22, 60 and 115 of the Constitution as well as with international legal acts to the extent where they do not secure procedural guarantees for realization by the parties and by other persons who take part in the proceedings the right to appeal against judicial rulings of the Supreme Court of the Republic of Belarus on the cases it delivered as in first instance.
Judgment of the Constitutional Court was based on the fact that one of the real guarantees for exercising constitutional right to judicial protection and delivery by courts of law of lawful and well-grounded decisions shall be the right to appeal or protest against judicial rulings.
The Constitutional Court has studied the issue of realization of the right to judicial protection by means of specified in the legislation procedures of cassation and supervisory appeal against judicial rulings. Making appeal or protest as regards judicial rulings, which are taken no effect, shall be the ground for bringing the proceedings in the court of second instance (procedure of cassation). Effective legislation establishes the procedure of revision of judicial rulings, which have come into force, in the procedure of cassation including judicial rulings of the Supreme Court it delivered as in first instance. In practice the reason for making protest in the procedure of supervision are the complaints of parties or interested persons. However, lodgement of the complaint in the procedure of supervision judicial rulings does not entail binding institution of the proceedings in revision. List of officials who are authorized to make a protest is specified in law. Therefore, institution of the proceedings in revision of the case shall depend not on the will of the persons who take part in the case, but only on the official who has the right to make the protest given, in his opinion, the grounds thereto.
Having analyzed the effective procedural legislation concerning realization by citizens the right to appeal against judicial rulings in the procedure of cassation as well as the right to lodge the complaint in the procedure of supervision, the Constitutional Court has come to the conclusion that the procedural rights of parties and persons who take part in the proceedings are secured more full while revising cases in the procedure of cassation, since lodgement of the cassational complaint in the specified procedure shall always entail revision of the case in full. Complaint in the procedure of supervision may be only the ground for making protest as for the recall of valid judicial rulings. Civil Code of Procedure determined no procedure for making and examining the complaint of supervision, in particular, there have been no regulation of the issues that complaint of supervision is the ground for reclamation of the case and making the protest by the authorized officials, there were no determination of the content of the complaint of supervision, the name of the body or an official to whom the complaint may be addressed, terms for examination of the complaint in question, grounds for its refusal as well as other issues which are essential for the supervisory appeal and protest.
Solution of the issues on the forms of securing the right of parties and persons who participate in the proceedings to appeal against judicial rulings is the prerogative of the lawmaker who specifies mechanism (procedures) of that appeal. In this connection the Constitutional Court has found it necessary to recommend competent state bodies to consider the issues on additional guarantees while examining complaints made by parties and by persons who take part in the proceedings as regards the rulings delivered by the Supreme Court of the cases it examined as in first instance.
In order to realizing the guarantees of the right to judicial protection the availability of which has been restricted by excessively high rates of national duty on property disputes and in connection with the necessity of the establishment of equivalent approach to the amounts of the rates of national duty from the applications of property and non-property nature, regulation of duty collection in the courts of law and in economic courts, in other state bodies the Constitutional Court in its decision of 24 June 1999 has proposed the Council of Ministers to review the amounts of national duty. The Council of Ministers by its resolution of 25 August 1999 has changed the rates of national duty on property disputes and established more balanced approach to the determination of the rate of national duty on the disputes of property and non-property nature.
The Constitutional Court has examined the address of the Ministry of Justice on application of the norms of Article 62 of the Constitution and relevant Articles of the Civil Code of Procedure of the Republic of Belarus which regulate issues of representation in the court of law.
Under Article 62 of the Constitution everyone shall have the right to legal assistance to exercise and defend his rights and freedoms. The specified constitutional norm stipulates, in particular, the right of each citizen to make use, at any time, of the assistance of lawyers and one's other representatives in court of law, other state bodies, bodies of local government, enterprises, establishments, organizations and public associations, and also in relations with officials and citizens.
Effective procedural legislation (Articles 70-79 of the Civil Code of Procedure - hereafter - CCP) stipulates that citizens shall have the right to plead a case in court of law personally or through representatives. There are two possible ways for drawing up representation in the court of law: presenting due made warrant of attorney or oral statement made in court of law which shall be entered in the record of proceedings. Legislation shall not exclude the right to act as a representative for advocates; persons who have licences for rendering legal services; any other citizens who have made their representation properly.
It has been observed from the address of the Ministry of Justice to the Constitutional Court that in practice there are instances when persons, who have no licences for the right to be engaged in advocate activities and render legal services, systematically render legal services as representatives on paid basis.
Having analyzed the effective legislation on the given issue the Constitutional Court has come to the conclusion that by allowing representation of any person in court of law on a civil case, the lawmaker had not determined whether that representation may be of a systematic nature and be the source of income of a person who deals with representation in court of law without licence for the right to carry out advocate activities or for the right to render legal services. Understanding the position of the lawmaker on that issue, in the opinion of the Constitutional Court, is possible by means of official interpretation of the relevant norms of legislation of procedure.
Several times the Constitutional Court has been received addresses of the Republican collegium of advocates concerning, in particular, restriction of the right of citizens to obtain legal assistance in criminal proceeding due to non-granting legal counsel the right to have interview with a person detained on suspicion in carrying out a crime and who is in custody before bringing accusation against him. Taking account of the significance of the issue on observance of the constitutional rights of citizens in criminal proceeding, the Constitutional Court on 13 December 1999 has adopted decision "On some issues of securing citizens the constitutional right to obtain legal assistance in criminal proceeding". That decision has found provisions of Articles 49 and 53 of the Criminal Code of Procedure, which give suspect and defendant who are in custody no right to use at any moment the assistance of lawyers, to be at variance with Articles 2, 8, 62 of the Constitution, with the Law "On the Bar", with general provisions of the criminal legislation of procedure, with International Covenant on Civil and Political rights, with the Body of principles for the protection of all persons under any form of detention or imprisonment, adopted by UN General Assembly resolution of 9 December 1988, with Main principles concerning the role of lawyers, adopted by eighth UN Congress on prevention of the criminality and treatment with law infringers of 7 September 1990.
The Constitutional Court has proposed the state bodies which apply the norms of the criminal legislation of procedure to secure not only for accused but also for suspects, defendants, with respect to whom a preventive punishment as confinement has been chosen, the right to obtain at any time qualified assistance of a legal counsel with the observance of the conditions envisaged by the norms of international legal acts.
The Constitutional Court emphasizes that new Criminal Code of Procedure has secured as well as gave further development for the specified provisions of the Constitution and international legal acts. It stipulates more wide rights of the participants of criminal proceeding (detained, suspects, accused etc.) as well as guarantees for their ensuring. They are given the possibility to obtain legal assistance of a legal counsel at any moment and to free communicate with him in private and in confidence without any restrictions of quantity and length of conversations.
Important conditions for the forming of a state ruled by law, for securing the constitutional rights and freedoms of citizens shall be the quality of regulation of administrative relations, the level of development of administrative law as well as due practice of its application.
In its Judgment of 1 June 1999 "On the conformity between the Constitution of the Republic of Belarus, international legal acts and part one of Article 182 of the Administrative Code the Republic of Belarus" the Constitutional Court has found to be unconstitutional the norm which had envisaged the responsibility of officials for the employment of citizens who live without propiska (registration) and pointed out its incompatibility with a number of Articles of the Constitution, with the Law "On international treaties of the Republic of Belarus", with the Universal Declaration of Human Rights, with International Covenant on Economic, Social and Cultural Rights, with the Conventions of the International Labour Organization. Judgment of the Constitutional Court has made it possible for citizens not only in reality to exercise their right to conclude freely labour contract and for the employers - to employ workers with their capabilities, education and professional training taking into account but also promotes citizens to realize the constitutional right to move freely and choose their place of residence.
On the proposal of the House of Representatives of the National Assembly of the Republic of Belarus the Constitutional Court has verified the constitutionality of decision of Minsk city executive committee on coercive tow of vehicles. By the Judgment of 23 July 1999 it has been found to be at variance with the Constitution and the laws of the Republic of Belarus the Provision on the methods and conditions of towing, storage and realization of vehicles which obstruct interyard territory, impede of cleaning streets and roads, adopted by decision of Minsk city executive committee of 28 December 1995 No. 783 and point 7.3 of the decision of Minsk city executive committee of 9 December 1998 No. 1330 "On the methods of parking of vehicles, maintaining the roadway net and interyard territory". The Constitutional Court has found inadmissible the restrictions of the rights of citizens by coercive tow of vehicles on the ground of decisions of Minsk city executive committee which has exceeded its powers while establishing measures of administrative enforcement. Under Article 23 of the Constitution restrictions of that kind shall be permitted only in the instances specified in law. The Constitutional Court notes that citizens have repeatedly made complaints against those restrictions to the courts of law, however, the courts of law, as it is required by Article 112 of the Constitution, raised, under the established procedure, no issues on verification of the constitutionality of the decisions in question. The Constitutional Court in its Judgment has also proposed local executive and administrative bodies to secure the solution of the issues connected with maximum possible satisfaction of wants of owners of vehicles on both guarded and non-guarded parking that should promote more full protection of the rights and freedoms of citizens, the reduction in the law infringements.
The Constitutional Court has guided by idea of realization of the principle of fairness while safeguarding constitutional rights and freedoms of citizens and of more balanced approach to the establishment of responsibility for the damaged caused them by giving of 25 March 1999 interpretation of its Judgment of 19 December 1994 "On the conformity between the Constitution and the note to Article 177 of the Criminal Code of the Republic of Belarus".
Giving estimation of the approach of the lawmaker towards the regulation in accordance with Article 27 of the Constitution of the issues on the responsibility of next of kin or of members of family of a person who committed a crime, for misprision and for the beforehand non-promised concealment of crimes the Constitutional Court has paid attention to the following.
Effective Criminal Code of the Republic of Belarus realizes provision of Article 27 of the Constitution in the way that next of kin or members of family of a person who committed a crime are subjects to no responsibility for misprision of both the crime under preparation and the crime made regardless of its gravity. For beforehand non-promised concealment of the crime the responsibility of the given persons in instances specially specified in law is not excluded.
At the same time such an approach, in the opinion of the Constitutional Court, is unjustified and runs counter to the principle of fairness which presumes commensurability of the significance of this or that right of citizens in general system of constitutional rights and freedoms with the applying means of their protection. One right may not be protected by way of restriction of other rights, especially those, which are attached priority importance thereto. In particular, the right of everyone to life proclaimed by the Constitution has priority place in the system of constitutional rights. Therefore, that provision of the criminal law, under which nest of kin or a member of family of a person who is under preparation to make extra grave crime which is dangerous for the life of people (terrorism, diversion, murder etc.) shall not be subject to criminal liability, is contrary to the principle of fairness. Obligation of the persons in question to inform relevant bodies about the fact itself of preparation of such a crime, supported by the threat of criminal liability for the failure to perform it, will be one of the means for prevention of grave consequences which may come as a result of its commitment.
In its turn it is impossible to find to be fair the establishment of criminal liability of next of kin or members of family of a person who has already made a crime for the beforehand non-promised concealment disregarding the nature of the actions those persons carry out as well as their motives. Those persons may often find themselves in a situation when only related feelings without any selfish or other vile motives shall predetermine their actions on the concealment of the guilty person himself or the place of his location.
Based on the foreign legislative practice and on the tasks of protection of the most valuable - life of a man and prevention of encroachments upon it as one of the most dangerous crimes the Constitutional Court in its Judgment of 25 March 1999 has determined the possible directions for more justified legislative solution of the issues connected with responsibility of next of kin or members of family of a person who made a crime for misprision about a crime and beforehand non-promised concealment of a crime. The issues raised by the Constitutional Court may be solved in the Criminal Code.
Particular legal actuality and significance have tax legal relations whereas they directly involve property rights and lawful interests of both tax payers and the state. Activities of the Constitutional Court on exercising control in that sphere shows that regulation of tax relations is not always carried out in accordance with the Basic Law.
On the initiative of the Supreme Economic Court the Constitutional Court has examined the case "On the conformity between the Constitution, laws of the Republic of Belarus and explanation of the Main state tax inspection under the Cabinet of Ministers of the Republic of Belarus of 16 June 1995 "On return of excessively collected payments into the budget". In the process of examination of the given case it has been established that by explanation of the Main state tax inspection (at present - State tax committee) it was violated the right of tax payers envisaged by part three of point 2 of Article 10 of the Law "On taxes and dues collected into the budget of the Republic of Belarus" to get by them from the budget of the sums of payments collected on the results of checkings with calculation of fines to the tune of the rate of the National Bank of the Republic of Belarus. The Constitutional Court in its Judgment of 14 September 1999 has found to be unconstitutional explanation of Main state tax inspection of 16 June 1995 in part of specification that the fine shall not be calculated to the sums of excessively collected financial sanctions owing to their wrong calculation under the act of checking. The specified provision has been found to be invalid from the date of adoption of the Judgment. The given Judgment is called to encourage more strict and responsible application by tax bodies of the legislation while making checkings and, thereby, more full protection of the rights and lawful interests of tax payers and the state.
In June 1999 Central board of public association "Belarusian society of deaf persons" has made an address for the protection of the right of tax payers. The address concerned the lawfulness of regulation of the question on privileges for public associations of invalids, their enterprises, establishments and organizations by point 9 of the Provision on the procedure of making and use of purpose dues for maintenance of children's pre-school establishments of the city of Grodno which was approved by decision of Grodno city executive committee of 4 March 1999 No. 185 "On imposition of local dues".
On the given address in its decision of 18 August 1999 "On decision of Grodno city executive committee of 4 March 1999 No. 185 "On imposition of local dues" the Constitutional Court has pointed out that effective legislation contains no proper regulation of the issues of the powers of local Councils of deputies in the sphere of setting of privileges by imposing local taxes and dues irrespective of the fact that the specified local bodies enjoy the constitutional right to fix those payments in accordance with the law. The Constitutional Court having paid attention to the contradictoriness of the effective legislation proposed the National Assembly of the Republic of Belarus to give interpretation of Article 53 of the Law "On social protection of disabled persons in the Republic of Belarus" in part of compulsory granting the setting in it privileges while imposing local taxes and dues or to make necessary alterations in the legislative acts with the purpose of ensuring interconsistency of the norms, as well as to define more precisely the right of local Councils of deputies for setting of privileges while imposing by them local taxes and dues.
While considering the given issue the Constitutional Court has also revealed the violation of the specified in Article 121 of the Constitution and in the laws procedure of imposing local taxes and dues by local administrative and executive bodies of the city of Grodno. The Constitutional Court has propose Grodno city Council of deputies and Grodno city executive committee within their competence to regulate imposing of purpose due for maintenance of children's pre-school establishments on the grounds of the Constitution of the Republic of Belarus, of the Law "On the budget of the Republic of Belarus for 1999" as well as of other acts of the legislation. Relevant decision has been adopted by Grodno city Council of Deputies of 21 October 1999.
With the object of improving legislation on veterans the Constitutional Court has adopted of 24 June 1999 decision in which it proposed to consider persons awarded with the Medals "For the Victory over Germany" or "For the Victory over Japan" to be the veterans of war. The given position of the Constitutional Court is conditioned not only of the aspiration to unify legal criteria for determining the status of veterans but also of the requirements for observance of social fairness as well as of the necessity for the establishment in the legislation and in the law enforcing practice of unique approaches to the solution of the issues of that kind.
While exercising control over the realization of the principles and demands contained in Article 7 of the Constitution on the necessity of publication of enforceable enactments of state bodies or of their promulgation by some means specified in law, the Constitutional Court in its decision of 12 February 1999 has paid attention to still available omissions in that field. In the opinion of the Constitutional Court after that the situation with publication of enforceable enactments has begun changing for the better.
The Constitutional Court emphasizes that in 1999 the proceedings of the cases in accordance with Article 116 of the Constitution of the Republic of Belarus, Articles 5, 6 of the Law "On the Constitutional Court of the Republic of Belarus" have been brought on the proposal of the Head of the state, of the Supreme Economic Court of the Republic of Belarus (by way of Article 112 of the Constitution included), of the House of Representatives, of the Council of the Republic of the National Assembly of the Republic of Belarus.
In 1999 the Constitutional Court has been also come no materials on the ground of addresses of the courts of law in accordance with Article 112 of the Constitution which enshrines that, if during the hearing of a specific case, a court concludes that an enforceable enactment is contrary to the Constitution and raise, under the established procedure, the issues of whether the enforceable enactment in question should be deemed unconstitutional. Analogous norm is also secured in the Law "On judicial system and status of judges in the Republic of Belarus" (Article 4). The Constitutional Court considers that exercise by the courts of law of the given rule is both their right and obligation as it follows from Articles 6, 59 and from other Articles of the Constitution. Non-fulfilment by the courts of law of the requirement in question leads to the application for a long period of time of the contradictory to the Basic Law enforceable enactments, prevents from forming unique practice based on the provisions of the Constitution that affects adversely the constitutional legality. Important role in the removal of those shortcomings shall belong to the Supreme Court which is under the Constitution authorized to make addresses to the Constitutional Court on the issue for verification of the constitutionality of enforceable enactments. However, for the last two years there have been come no proposals of the Supreme Court. It is possible to notice from the materials received by the Constitutional Court in 1999 that in certain instances when legal counsels have applied to the courts of law with the motions for instituting issues on verification of the constitutionality of enforceable enactments in accordance with Article 112 of the Constitution, but the courts of law set them aside without due regulation.
While delivering its decisions the Constitutional Court has repeatedly emphasized that according to the provisions of the national legislation universally acknowledged principles of international law and norms of international treaties of the Republic of Belarus which came into force shall be the part of effective law in the territory of the Republic of Belarus.
The Constitutional Court, exercising constant control over the timely execution of its decision, notices that they have been executed by powerful bodies in the fixed terms. Official answers with the statement of the measures taken have been received by the Constitutional Court on all decisions adopted. In case of necessity there have been made alterations and addenda into enforceable enactments as well as there have been taken other measures on execution of the decisions of the Constitutional Court by relevant state bodies within their competence.
In accordance with the Constitution sessions of the Constitutional Court have been held in Belarusian and Russian: decisions of the Constitutional Court were published in both state languages in newspapers "Zvyazda" and "Narodnaya gazeta" respectively that shall promote securing the right of citizens to receive information, envisaged by Article 34 of the Constitution, their more effective legal protection.
II
The important criterion for determination of the constitutional legality is information contained in the complaints of citizens to the state bodies and to the officials who, in pursuance of the requirements of Article 40 of the Constitution, are obliged to consider them and to give the answer on points of fact at the term specified in law. Analysis of the complaints incoming to the Constitutional Court indicates that citizens, having exhausted all available remedies in other state bodies, are very often compelled to forward their letters to the Constitutional Court.
During the past year the Constitutional Court has been received 899 complaints of citizens (12 per cent more than in 1998), including 35 - of public associations. 137 citizens in the established procedure have been received on visiting-days by the judges of the Constitutional Court personally. The largest amount of the complaints concerned the activities of law enforceable bodies and courts of law.
Complaints of the citizens have been paid proper attention thereto and were examined in accordance with the Constitution and other enforceable enactments. On certain complaints there have been given relevant explanations. In instances of necessity the complaints of citizens have been forwarded to the state bodies within their competence to examine them. On the complaints which had great social significance and concerned the content and practice of application of the effective legislation the Constitutional Court has adopted decisions and made to the competent state bodies the proposals on the improvement of the legislation as well as on the adoption of new enforceable enactments.
Thus the complaints of servicemen who returned in Belarus from other republics of the former Soviet Union have expressed the doubt about the constitutionality of some norms of the Law "On citizenship" and passed an opinion on the necessity of broadening the grounds for restoration of their citizenship of the Republic of Belarus. In connection with that complaint the Constitutional Court in February 1999 there have been made proposals the competent bodies on the improvement of the legislation on the citizenship of the Republic of Belarus, the strengthening of property guarantees of servicemen - citizens of the Republic of Belarus.
During 1999 the Constitutional Court has continued to be received the complaints on the problem of reimbursement of the losses met therewith as a result of inflationary depreciation of savings kept with the Savings Bank as well as incomplete fulfilment by the state of loan obligations on securities of the former USSR. In the opinion of citizens there is a necessity to improve the legislation in order to recovering the losses as a result of depreciation of the deposits and securities with inflationary processes taken into account as well as to ensuring more full protection of the rights of heirs of the holders of the deposits and securities under the provision of part four of Article 44 of the Constitution of the Republic of Belarus. In 1999 the Constitutional Court has twice addressed on the problem in question to the Government which found the necessity of its solution depending on the growth of the economic situation in the state.
There were complaints of citizens to the Constitutional Court concerning the issue of payment for the use of excessive living space under the contracts of tenancy in the houses of state and public housing stock threefold of the fixed rate of rent for a tenant. In the process of study of the issue it has been found out that the legislation of the Union of SSR, which is applying in practice, is not combined on certain issues with the system of legislation of the Republic of Belarus as well as with the principles of the housing policy in the republic at present. With a purpose of updating and necessary systematizing legislation in the given field the Government of the republic has been proposed to consider the issue on working out and establishment of the unique enforceable enactment which shall regulate the procedure of payments for the use of living accommodation of state and public housing stock as well as pay for public utilities and technical service of living accommodation which is privately owned. The Council of Ministers has adopted on 25 August 1999 resolution No. 1332 "On regulation of payments of population for use of living accommodation and for public utilities" where the proposals of the Constitutional Court are reflected.
Considerable part of the complaints to the Constitutional Court is connected with pension security. They expressed, in particular, dissatisfaction about the scales of pensions, their restrictions in certain cases as a result of unjustifiably, in the opinion of those who made complaints, complicated procedure of determination and confirmation of the causes of disablement, length of record of work. The Constitutional Court considers that the Concept for reform of the system of pension security in the Republic of Belarus approved by resolution of the Council of Ministers of 17 April 1997 No. 349 as well as drawing up concrete plan for the realization of its basic provisions are called to encourage the removal of those shortcomings.
In accordance with the Judgment of the Constitutional Court of 2 June 1999 citizens who live in flats occupied by several tenants have been granted the right to privatize the occupied living accommodation irrespective of the consent of other tenants. However, in virtue of the fact that the proposal on verification of the constitutionality of part two of Article 5 of the Law "On privatization of housing stock in the Republic of Belarus" has been made only at the end of April 1999 and since 1 July 1999 the conditions for privileged privatization with the use of housing quota were ceased, many of citizens of the specified category had no time to realize their right to privatize dwelling on those terms. In order to securing their rights and lawful interests the Constitutional Court has addressed to the House of Representatives of the National Assembly of the Republic of Belarus with the proposal to prolong the term of such a privatization for the citizens who live in the flats occupied by several tenants.
There were complaints concerning the restriction of the rights and lawful interests of disabled persons. Citizens, in particular, have expressed disagreement with the provisions of enforceable enactments under which annual monetary compensation for the expenses on petrol, repair, technical service of motor cars as well as spare parts to them shall be paid out disabled soldiers of the Great Patriotic war of II group as well as those invalids who are given the same status as from among the number of servicemen of II group who have a motor car as personal property only in instances, if driving is carried out by the invalid himself or by power of attorney of a relative who lives jointly with him. After study of the complaints of that kind the Constitutional Court has addressed to the Council of Ministers of the Republic of Belarus with the grounds of the necessity to make in the legislation amendments allowing payment of relative compensations in the instances, when driving of a motor car is carried out by power of attorney by a member of family or a relative who lives with the owner of motor transport in the same locality. The Council of Ministers of the Republic of Belarus in its resolution of 8 July 1999 No. 1043 has made alterations of that kind in the legislation.
Convicted persons have made their complaints to the Constitutional Court concerning the number of tuberculosis fever cases in the places of confinement. In connection with the necessity of all-round approach to the solution of the problem of tuberculosis control which shall presuppose the participation of many of state bodies and organizations, finding additional financial resources for anti-tubercular measures the Constitutional Court has forwarded to the competent bodies the proposal on elaboration of a draft of special legislative act. The Constitutional Court emphasises that at present moment it is carrying out the relevant work on fulfilment of the State programme "Tuberculosis" approved by the Government of the Republic of Belarus.
According to Article 1 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court is under the authority of establishment of legality both in the lawmaking and the law enforcement. When the law enforceable practice was based on the contradictory to the Constitution enforceable enactments, the Constitutional Court has paid attention of the competent bodies to its contravention.
Thus, the courts of various instances have rejected a claim of a member of one of the collective farms of the republic on his reinstatement on the ground that regulations of the collective farm contained the rule under which labour disputes shall be disposed by the commission on labour disputes and after that - either by the meeting of authorized members of the collective farm or by the court of law. In the opinion of the courts of law, where complaints have been forwarded thereto, the norm of regulations of the collective farm on alternative procedure for appealing against decision of the commission on labour disputes has ruled out the possibility of examination of a case by the court of law, since the complaint against decision of the commission on labour disputes has already been considered by the meeting of the authorized persons. Those decision of the courts of common law were obviously at variance with the provision of Article 60 of the Constitution under which citizens shall be guaranteed in all instances protection of their rights and freedoms by a competent, independent and impartial court of law. It is significant that the specified practice has been remained in spite of the fact that before the Constitutional Court has already adopted several judgments where, in order to securing the right of citizens to judicial protection, it paid attention to the direct effect of Article 60 of the Basic Law. As a result of the proposal of the Constitutional Court there have been made a protest to the judicial collegium on civil cases of the Supreme Court against the judicial rulings which took place and that protest was satisfied.
Almost six-year experience of the activities of the Constitutional Court on exercise control over the constitutionality of enforceable enactments in the Republic of Belarus signifies that the right of citizens to make complaints to the Constitutional Court is effective form of their influence on the improvement of the legislation, on the practice of its application and strengthening of the constitutional legality in the Republic of Belarus.
At present the elaboration of draft Law "On Ombudsman" is near completion. The Constitutional Court believes that Ombudsman in the Republic of Belarus will be able to realize more effectively the functions vested in him under the stipulation of the authorization him with the right to lodge constitutional motions to the Constitutional Court with the object of initiating constitutional proceedings as it is accepted in foreign practice. Approaches of that kind are based on the Constitution which shall allow in addition to determine the competence of the Constitutional Court in the relevant law. That will also meet in full the requirements of Article 61 of the Constitution which allows in accordance with the international instruments ratified by the Republic of Belarus the possibility for citizens to appeal to international organizations to defend their rights and freedoms, only provided all available national means of legal defence have been exhausted.
III
In 1999 radical reform of the effective legislation has been in progress. Important role in the forming present-day system of national legislation shall belong to the Head of State as well as to the Parliament and to the Government of the Republic of Belarus.
Last year is marked by adoption of such important codified laws as Criminal Code, Criminal Code of Procedure, Civil Code of Procedure, Housing Code, Labour Code, Family Code. Part of the given Codes as well as previously adopted Civil Code and Economic Code of Procedure have become effective in 1999.
The Constitutional Court notes that new Codes take largely into account and give progress to many of the provisions of the Constitution of the Republic of Belarus, international legal instruments directed at the protection of the rights and freedoms of man and citizen. Many of the adopted acts of legislation have taken into consideration decisions of the Constitutional Court as well as contained in them conclusions concerning the constitutionality of the verified legal norms.
At the same time there are shortcomings in lawmaking activities. Application in practice of the acts, acts of the USSR included, which do not meet in their content modern democratic transformations (Provision on preliminary detention in the Republic of Belarus, approved by Decree of the Presidium of the Supreme Council of BSSR of 9 April 1970, Provision on the procedure of short-term detention of persons suspected in the crime approved by Decree of the Presidium of the Supreme Council of the USSR of 13 July 1976 etc.) shall not promote the strengthening of constitutional legality.
The Constitutional Court emphasizes also that some new Codes and other enforceable enactments contain obvious inaccuracies, provisions which are at variance with one another as well as norms which are not in conformity with the basic legal principles that shall not promote the establishment of unique law enforceable practice, proper observance of laws, decrees, edicts and other acts of legislation.
A number of newly adopted legislative acts signifies about the shortcomings of lawmaking activities in part of prevention of legal collisions.
Practice of delay of the adoption of acts which shall secure more detail and complex regulation of relations on the basis of the adopted codes and of other laws is still remained. Untimely finding invalidity of enforceable enactments which are contrary to the newly adopted acts but which are applied in practice has affected negatively constitutional legality. It is necessary to refuse the practice of forming normative base by which mechanisms of realization of the rights of citizens and procedures of fundamental importance for the protection of those rights are specified in by-laws (departmental) normative legal acts.
The Constitutional Court considers that timely renewal of the effective legislation conditioned by the requirements of social development; adoption of the laws the necessity of which is directly fixed or follows from the content of the Constitution (on the right to move freely and choose one's place of residence, on alternative military service, on state of emergency and martial law, on the procedure of realization by the citizens of their right to legislative initiative etc.) should promote more full protection of the constitutional rights of citizens.
It is necessary to continue purposeful work on bringing acts of national legislation into line with international legal acts as well as to form the practice of application of universally acknowledged principles of international law and norms of international treaties which came into force and are the part of the effective law in the territory of the Republic of Belarus.
IV
Great importance for the constructive development of the institute of constitutional control in the Republic of Belarus at the present stage, for the improvement of the activities of the Constitutional Court of the Republic of Belarus on the protection of the rights and freedoms of citizens is its co-operation with the bodies of constitutional control of other states, exchange of activity experience of the constitutional courts.
The Republic of Belarus was one of the first among the Member-States of the Commonwealth of Independent States which has introduced the institute of constitutional control. Exchange of the experience with the bodies of constitutional control of other states has indicated that the powers of the Constitutional Court of the Republic of Belarus in the field of verification of the constitutionality of enforceable enactments do not differ essentially from similar powers of other specialized bodies of constitutional control. However, in the constitutional courts of other states the right to initiate constitutional proceedings on verification of the constitutionality of enforceable enactments shall have much more wide circle of subjects. Study of the legislation which regulates the activities of the constitutional courts of other states also signifies that quite often the powers of the bodies of constitutional control enshrined by the Constitution are added thereto by relevant laws.
In 1999 the Constitutional Court has received a number of foreign delegations as well as representatives of scientific circles of other states. In the course of meetings it took place exchange of information on the place and the role of the bodies of constitutional control in the system of state power and on legal methods of ensuring the supremacy of the Constitution, on the practice of the constitutional courts of a number of states, on the observance of the rights and freedoms of citizens in the Republic of Belarus, on the experience of the Constitutional Court concerning the work with the complaints of citizens.
Representatives of the Constitutional Court of the Republic of Belarus have participated in the work of XI Conference of the European Constitutional Courts which took place in May 1999 in Warsaw as well as in a number of other international and republican scientific and practical conferences and seminars.
The Constitutional Court on 27 April 1999 held republican scientific and practical conference "Constitutional justice in the Republic of Belarus: five-year experience, problems and perspectives" on the materials of which there has been published collection of reports and speeches. At the conference there have been made the analysis of the result of the five-year activities of the Constitutional Court on the improvement of legal system of the Republic of Belarus, there have been expressed the proposals on further strengthening of constitutional control, there have been underlined its important role of the Constitutional Court in the system of bodies of state power in the process of making the state ruled by law and forming civil society.
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Constitutional legality - is an obligatory element of State system, an inalienable condition for functioning of state power of every present democratic state ruled by law. Degree of constitutional legality in the Republic of Belarus shall depend upon deep realization by all state bodies and officials of their responsibility therefor, upon all possible ensuring of the supremacy of the Constitution of the Republic of Belarus in legal system of the states as well as direct, immediate effect of its norms in lawmaking and law enforceable practice.
The Constitutional Court deems that the efforts of all state bodies and officials should be bent to create such a domestic and international order (Article 59 of the Constitution) under which it is possible to exercise in full the rights and freedoms of citizens of the Republic of Belarus envisaged by the Constitution. In the opinion of the Constitutional Court achievement of the specified aim shall be possible, if under the Basic Law state bodies, officials and other persons, who are entrusted to perform state functions will take within their powers all due measures for exercise individual rights and freedoms guided by the principle enshrined in the Constitution that the individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State.
The Present Message was adopted at the session of the Constitutional Court of the Republic of Belarus of 31 January 2000.
Presiding Officer — Chairman of the of the