18 February 2000 № D-93/2000
The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, 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 guided by Article 40, part one of Article 116 of the Constitution and Article 7 of the Law "On the Constitutional Court of the Republic of Belarus", examined the issue on realization by officials of single state bodies of the right to unimpeded access to the units (territory) of enterprises, establishments, organizations.
Having analysed the norms of the Constitution, laws, other enforceable enactments, as well as practice of their application, the Constitutional Court established the following.
Resolution of the Council of Ministers of the Republic of Belarus of 19 February 1999 No. 262 "On approval of Provision on licensing guard activities in the Republic of Belarus" (Collection of edicts, decrees of the President and resolutions of the Government of the Republic of Belarus, 1999, No. 6, art. 149) has approved Provision on licensing guard activities in the Republic of Belarus. Point 31.5 of the given Provision envisages that economic entities which carry out guard activities shall be obliged to secure unimpeded access to their units (territory) of the officials of association "Guard", of the State Nommittee for Financial Investigations and of the State Tax Committee of the Republic of Belarus.
It is possible to make a conclusion from the content of the specified point of the Provision that list of persons, who have the right to unimpeded access to the guarded units (territory), is of an exhausted nature that in practice, contrary to the requirements of laws, makes certain difficulties in realization of their functions by authorized officials of single state bodies.
In particular, point 25 of Article 16 of the Law "On militia" envisages the right of militia to unimpeded entry the premises of enterprises, establishments, organizations (except for the foreign diplomatic representatives), productive facilities used by the citizens for dealing with different types of private undertakings (except for the premises which at the same time are dwellings and entry them shall be permitted only in instances specified in law), for carrying out, in the presence of an owner or his representative or persons authorized by them, control functions and for making in accordance with the criminal legislation of procedure inspection of work, stock, commercial and other office premises and territories, as well as of means of transportation.
Under Article 125 of the Constitution the Procurator-General of the Republic of Belarus and subordinate public prosecutors shall be entrusted to supervise the strict and unified implementation of the laws, decrees, regulations and other enforceable enactments by ministries and other bodies subordinate to the Council of Ministers, as well as by local representative and executive bodies, enterprises, organizations, establishments, public associations, officials and citizens.
Article 22 of the Law "On the Procurator's Office of the Republic of Belarus" envisages that while exercising public prosecutions supervision over the strict and unified implementation of the laws by state bodies, enterprises, organizations, establishments, public associations, officials and citizens public prosecutor shall have the right upon presentation of the certificate of employment to unimpeded entry territory and premises of enterprises, establishments and organizations (irrespective of the forms of ownership, jurisdiction and type of admission regime), to have access to their documents, to check observance of laws.
Article 50 of the Law "On the Procurator's Office of the Republic of Belarus" explains that the name "public prosecutor", unless otherwise directly specifies in the given law, one shall understand: the Procurator-General of the Republic of Belarus and all lower public prosecutors, their deputies, senior assistants and assistants, heads, deputy heads, senior public prosecutors and public prosecutors of main departments, departments and divisions who act within their powers.
Rights of officials who exercise prosecution to unimpeded access to enterprises, establishments and organizations, to pursue at its units (territory) necessary investigative actions (survey, search, seizure of documents etc.) are regulated by the legislation of criminal procedure in detail.
Thus Article 44 of the effective Criminal Code of Procedure of the Republic of Belarus (hereafter - CCP) envisages that rulings of investigator passed in accordance with the law on the case in his procedure shall be binding for execution by all enterprises, establishments, organizations, officials and citizens. Article 64 of CCP regulating issues of collection of evidence establishes that a person who shall make inquest, investigator, public prosecutor and court (judge) shall have the right within their powers on the cases processed by them to make surveys, searches, seizures and other investigative actions specified in the given Code; to demand from enterprises, establishments, organizations, officials and citizens of submission of objects and documents which can establish necessary actual data on the case etc. According to Article 168 of CCP seizures and searches in premises occupied by enterprises, establishments, organizations shall be made in the presence of a representative of the given enterprise, establishment, organization.
Norms of similar content which secure the right of authorized officials, who shall execute criminal prosecution, to unimpeded access to the units (territory) of enterprises, establishments, organizations for making investigative actions on the cases in their procedure are also stipulated in new CCP (Articles 34 - 39, 103, 204, 210 etc.).
The right of the bodies of national security, as well as of authorized by them officials to unimpeded entry units (territory) of enterprises, establishments, organizations irrespective of their forms of ownership is envisaged by the Law "On the bodies of national security of the Republic of Belarus".
In accordance with Article 184 of the Customs Code of the Republic of Belarus with the object of exercising customs control officials of customs bodies of the Republic of Belarus, on the basis of the certificate of employment, shall have the right to access into the territory and to the premises of any person where there are or may be goods and means of transportation which are subject to such a control, documents which are necessary for customs control or where activities are carrying out and control over those activities is vested in customs bodies of the Republic of Belarus, with the exception of instances envisaged by legislative acts of the Republic of Belarus or by international treaties of the Republic of Belarus.
Article 17 of the Law "On the State Supervisory Committee of the Republic of Belarus" envisages that officials of the State Supervisory Committee and its territorial bodies while making checkings (revisions) shall have the right, upon presentation of the order for making checking (revision) and of the identity document of an official of the State Supervisory Committee the form of which shall be determined by legislation, to unimpeded entry territory and premises (except for dwellings) of the state bodies, other legal entities, as well as of individual entrepreneurs; to have access to storehouses, storage places, productive and auxiliary premises (except for dwellings) and to other units for checking availability of money, securities, stocks of materials and other values and procedure of their storing.
Under Article 7 of the Constitution the State and all the bodies and officials thereof shall operate within the confines of the Constitution and the acts of legislation enacted in accordance therewith.
Article 137 of the Constitution enshrines that the acts of state bodies shall be promulgated on the basis of, and in accordance with the Constitution as the act of the supreme legal force. Under the Constitution and the Law "On enforceable legal acts of the Republic of Belarus" laws, decrees, edicts shall have the greater legal force in respect to resolutions of the Council of Ministers of the Republic of Belarus.
In this connection the Constitutional Court deems that point 31.5 of the Provision on licensing guard activities in the Republic of Belarus, approved by resolution of the Government of the Republic of Belarus of 19 February 1999 No. 262 which has specified in fact exhausted list of persons for whom economic entities, which carry out guard activities, must secure unimpeded access to their units (territory), is not in conformity with afore-cited norms of codes and other laws.
With aforestated taken into account, guided by Articles 7, 36, and 38 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To take note 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 perfoming by them their functions in the specified procedure, shall have direct effect and may not be restricted by by-laws.
2. To propose the Government of the Republic of Belarus to make to the 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 1999 No. 262, necessary specifications for excluding its multivalued understanding and application in practice.
3. The present decision shall come into force from the date of its adoption.
4. To publish the present decision in accordance with the effective legislation.
Presiding Officer —
Chairman of the
of the