17 April 2000 № J-96/2000
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
with participation of representatives:
of the President of the Republic of Belarus: A.I. Lukashov - Head of the section of legislation on the issues of national security, law enforcing and judicial bodies of the National Centre of draft law activities under the President of the Republic of Belarus;
of the House of Representatives of the National Assembly of the Republic of Belarus: L.K. Orlov - Head of the Department of criminal and administrative legislation of the Management of expert examination of draft laws of the Main expert and law management of the Secretariat of the House of Representatives of the National Assembly of the Republic of Belarus;
of the Council of the Republic of the National Assembly of the Republic of Belarus: L.Y. Senuta - main specialist of the Department of state, criminal and administrative legislation of expert and law management of the Secretariat of the Council of the Republic of the National Assembly of the Republic of Belarus
has examined in open Court session the case "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 Court session was attended by: V.N. Ptashnik - Deputy Chairman of the Supreme Court of the Republic of Belarus; P.I. Ivanenko - Deputy Procurator-General of the Republic of Belarus; O.G. Sergeeva - Deputy Minister of Justice of the Republic of Belarus.
The Constitutional Court in its Judgment of 13 May 1999 has found part six of Article 209 of the Criminal Code of Procedure of the Republic of Belarus to be at variance with the Constitution and International Covenant on civil and political rights to the extent that it had not envisaged the right to appeal to the court against the ruling on dismissal of criminal case.
It has been specified in that Judgment that before making alterations and addenda into the Criminal Code of Procedure on the issues of judicial appeal against the ruling on dismissal of the criminal case there shall be applied the norm of Article 60 of the Constitution which secure the right of everyone to judicial protection of one's rights and liberties. The Constitutional Court has proposed the National Assembly of the Republic of Belarus to make into the Criminal Code of Procedure of the Republic of Belarus alterations and addenda which shall secure the realization of the constitutional right of the citizens to appeal against the ruling on dismissal of criminal case to the court.
Law of 25 October 1999 has added part six of Article 209 of CCP by specification of the possibility to appeal against the ruling on dismissal of criminal case to the court. The Criminal Code of Procedure has been also added by Article 2204 which establishes the procedure of examination by the court of the complaint against the ruling on dismissal of criminal case.
Due to the fact that there were questions on the right to appeal to the court of the rulings on dismissal of proceedings on criminal cases which have been passed before the adoption of the specified Judgment of the Constitutional Court of 13 May 1999 and that is specified in the materials of judicial practice, of the complaints of citizens, of the Republican collegium of advocates, the Constitutional Court on 16 March 2000 has brought the proceedings on the case "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".
Having heard K.I. Kenik, judge-speaker, representatives of the President and of the chambers of the National Assembly of the Republic of Belarus, as well as Chairman of the Republican collegium of advocates N.I. Andrejchik, analysed the provisions of the Constitution and laws of the Republic of Belarus, studied the materials of the case, the Constitutional Court has established the following.
The Judgment of the Constitutional Court of 13 May 1999 has specified, in particular, that under the provisions of the criminal and criminal procedural legislation criminal case may be dismissed both in the presence of the grounds which rehabilitate a citizen (absence of the event of a crime, absence in a deed of corpus delicti as well as other grounds which justify a citizen) and in the instances when in the opinion of the bodies of pre-trial investigation the deeds of the suspect or accused contain features of corpus delicti, however, there are specified in law grounds for his release from criminal liability (expiry of the periods of limitation, act of amnesty and other).
The Constitutional Court has pointed out that absence in part six of Article 209 of CCP of the norm on the right to appeal to the court against the ruling on dismissal of criminal case has essentially restricted both suspect or accused who were not ensured the right to examine judicially the facts formed the basis of the ruling on dismissal of criminal case on non-rehabilitated grounds and the right of crime victims as well as other participants of proceedings, whose rights and legitimate interests have been violated as a result of dismissal of the case on the stage of pre-trial investigation.
The right to judicial protection is one of the universally acknowledged principles of international law, the priority of which under Article 8 of the Constitution the Republic of Belarus shall recognize as well as shall ensure the conformity between them and the legislation. That right in international practice is considered to be state guarantee of the right of personal inviolability. It shall refer to the rights which may nit be restricted.
The Constitutional Court in its Judgment of 13 May 1999 has made unique specification that under Article 60 of the Constitution everyone shall be guaranteed one's rights and liberties by a competent, independent and impartial court of law.
Article 137 of the Constitution enshrines its supremacy in the system of legal acts of the Republic of Belarus. The Constitution shall have supreme legal force. Where there is a discrepancy between the Constitution and other acts, the Constitution shall apply. Just that conclusion is following from the analysis of both Article 137 and Article 142 as well as other articles of the Basic Law.
The Constitutional Court in its judgments, messages on constitutional legality, proposals to lawmaking and law enforcing bodies has repeatedly pointed to direct character of the effect of the norms that Article 60 of the Constitution contains.
Based on the aforesaid the Constitutional Court has come to the conclusion that part six of Article 209 of CCP of the Republic of Belarus, which envisaged the right of a citizen to judicial appeal against ruling on dismissal of the proceedings on a criminal case, shall prevent from realizing the right of everyone to judicial protection of one's rights and liberties guaranteed by the Constitution and international legal acts.
After coming into force of the Constitution since 30 March 1994 Article 209 of CCP has not been brought into line with its requirements and, in practice, norms of CCP has been applied disregarding requirements of Article 60 (previously - Article 61) of the Constitution. It has been also confirmed in the process of examination by the Constitutional Court of the case "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 norm of Article 209 of CCP under verification was found in Judgment of the Constitutional Court of 13 May 1999 to be unconstitutional in part of absence in it of the right to appeal to the court against ruling on dismissal of criminal case. Based on that the Constitutional Court in its Judgment of 13 May 1999 has not determined the moment from which the given norm shall become invalid bearing in mind direct nature of effect of Article 60 (previously - 61) of the Constitution.
In that connection the Constitutional Court deems it necessary to expound that subject to appeal may be rulings on dismissal of proceedings on a criminal case, passed after coming into force of the Constitution of the Republic of Belarus, i.e. after 30 March 1994 and not only after 13 May 1999.
Such a conclusion is conditioned by the necessity of ensuring supremacy of the Constitution and direct effect of its norms, as well as that during the period prior to the adoption by the Constitutional Court of its Judgment of 13 May 1999 citizens had not be able in practice to use the right to appeal to the court against rulings on dismissal of proceedings on criminal case.
The Constitutional Court based on the analysis of criminal and criminal procedural legislation finds no legal grounds for restriction of the terms for appeal to the court against rulings on dismissal of criminal cases by some periods prescription of calling to criminal liability included.
The given position of the Constitutional Court does not exclude the right of lawmaker, while establishing in future the terms for appeal by citizens of those rulings, to envisage realization of the right to appeal to the court by the citizens with respect to whom proceedings on criminal cases have been dismissed after coming into force of the Constitution.
Due to finding by the Constitutional Court of part six of Article 209 of the Code of Criminal Procedure of the Republic of Belarus to be at variance with the Constitution and international legal acts and guided by Article 41 of the Law "On the Constitutional Court of the Republic of Belarus" and by Article 77 of the Rules of Procedure of the Constitutional Court, the Constitutional Court
EXPOUNDS:
1. Rulings on dismissal of proceedings on criminal case may be appealed to the court, if they have been made after coming into force of the Constitution of the Republic of Belarus, i.e. since 30 March 1994, whereas Article 60 (previously - Article 61) of the Constitution shall have direct nature of effect.
2. The present Judgment shall be published within the period established by legislation in "Narodnaya gazeta" and "Zvyazda", as well as in National register of legal acts of the Republic of Belarus.
3. The present Judgment shall come into legal force from the day of its proclamation, is final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the