News
On 23 April 2019 the Constitutional Court of the Republic of Belarus made the decision “On Legal Regulation of Criminal Proceedings based on Newly Discovered Circumstances” (reporting judge – Tadeush Voronovich)
According to the decision it is necessary to make amendments to the Criminal Procedure Code of the Republic of Belarus in order to establish the right of the persons concerned to appeal to a court against the decision of the prosecutor on the termination of the criminal proceedings based on newly discovered circumstances initiated by him.
The proceedings were initiated by the Constitutional Court in accordance with Article 158 of the Law of the Republic of Belarus “On Constitutional Proceedings” on the basis of the application submitted to the Constitutional Court stating that the provisions of the Criminal Procedure Code of the Republic of Belarus (hereinafter – the CPC) regulating criminal proceedings based on newly discovered circumstances do not provide for the possibility to appeal to a court against the decision of the prosecutor on the termination of the criminal proceedings based on newly discovered circumstances, which indicates a gap in the criminal procedure law and prevents individuals from exercising the constitutional right to judicial protection.
When considering the case the Constitutional Court proceeded from the following.
According to Article 60.1 of the Constitution of the Republic of Belarus, Everyone shall be guaranteed protection of one's rights and liberties by a competent, independent and impartial court of law within time periods specified in law.
In order to ensure the effective protection of the constitutional rights and freedoms of individuals, the CPC provides for additional legislative mechanisms for such protection by means of criminal proceedings based on newly discovered circumstances. Chapter 43 of the CPC establishes the circumstances and the procedure for resuming criminal proceedings due to newly discovered circumstances. The right to initiate such proceedings belongs to the prosecutor (Article 420.1 of the CPC). The decision of the prosecutor to refuse to initiate proceedings based on newly discovered circumstances may be appealed to a higher prosecutor or to a court (Article 420.5 of the CPC).
In the absence of grounds for resuming the criminal proceedings, the prosecutor, by his motivated ruling, shall terminate the proceedings initiated by him due to newly discovered circumstances; the decision to terminate the proceedings due to newly discovered circumstances shall be brought to the attention of the persons concerned; these persons shall be given explanations that they are entitled to appeal against the decision to a higher prosecutor (Articles 421.1 and 421.2 of the CPC).
Along with the aforementioned rules of the criminal procedure law, Article 9.3 of the Law of the Republic of Belarus “On the Prosecutor’s Office of the Republic of Belarus” establishes that an individual, including an individual entrepreneur, or an organisation who believes that the decision (actions) of the prosecutor has violated their rights or legitimate interests, shall have the right to appeal against such a decision (actions) to a higher prosecutor and (or) to a court.
The fact that the right of individuals to appeal against the decisions (actions) of the prosecutor to a court is enshrined in the Law “On the Prosecutor's Office of the Republic of Belarus”, while the criminal procedure law does not provide for the right of the persons concerned to appeal against the prosecutor’s decision to terminate the proceedings based on newly discovered circumstances initiated by him in practice leads to ambiguous understanding and application of the relevant legal rules when individuals submit complaints against the above-mentioned decisions of the prosecutor to the court.
The Constitutional Court concluded that due to the absence in the criminal procedure law of rules providing for the possibility to appeal against the prosecutor’s decision to terminate the proceedings based on newly discovered circumstances initiated by him, individuals, whose rights and legitimate interests are affected by such a decision, can not fully exercise their constitutionally guaranteed right to judicial protection.
The said gap of legal regulation, in the opinion of the Constitutional Court, is of constitutional and legal significance, since the resumption of criminal proceedings due to newly discovered circumstances as a special stage of the criminal process includes, among other things, a new consideration of the case in court to ensure the protection of the constitutional rights and freedoms of individuals.
In order to exercise the constitutional right of everyone to judicial protection, ensure the rule of law and eliminate a gap in the existing legal regulation the Constitutional Court found it necessary to make amendments to the Criminal Procedure Code establishing the right of the persons concerned to appeal to the court against the decision of the prosecutor to terminate the criminal proceedings initiated by him due to newly discovered circumstances.
The Council of Ministers of the Republic of Belarus has been asked to draft a law on making alterations to the Criminal Procedure Code and to submit it to the House of Representatives of the National Assembly of the Republic of Belarus according to the established procedure.