The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman P.P. Miklashevich, Deputy Chairwoman O.G. Sergeeva, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, N.A. Karpovich, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, A.G. Tikovenko, S.P. Chigrinov

 on the basis of Article 116.1 of the Constitution of the Republic of Belarus, Article 22.3.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Article 98 and Article 101.1 of the Law of the Republic of Belarus “On the Constitutional Proceedings”

 in open court session in the exercise of obligatory preliminary review considered the constitutionality of the Law of the Republic of Belarus “On Making Addenda and Alterations to the Law of the Republic of Belarus “On the Bases of Administrative Procedures”.

 Having heard the reporting judge O.G. Sergeeva, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Making Addenda and Alterations to the Law of the Republic of Belarus “On the Bases of Administrative Procedures” and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following:

 The Law of the Republic of Belarus “On Making Addenda and Alterations to the Law of the Republic of Belarus “On the Bases of Administrative Procedures” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 16 December 2016, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 21 December 2016 and submitted for signing to the President of the Republic of Belarus.

 The Law (Article 1) introduces addenda and alterations to the Law of the Republic of Belarus “On the Bases of Administrative Procedures” with a view to improve legal regulation of relations relating to administrative procedures.

1. When verifying the constitutionality of the Law the Constitutional Court takes into account the following. The Law “On the Bases of Administrative Procedures” in itself (hereinafter – the Law on the Bases of Administrative Procedures) as well as the laws introducing alterations and addenda into it, aimed to clarify legal regulation of administrative relationships, conform to the Constitution and rely on the constitutional rules as was recognised by the Court in its decisions of 17 October 2008 No. D-272/2008, of 28 December 2009 No. D-427/2009 and of 5 July 2012 No. D-741/2012. The rules of the Constitution provide that the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State; safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State (Articles 2.1; 21.1). The State shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution. State bodies, officials and other persons who have been entrusted to exercise state functions shall, within their competence, take necessary measures to implement and protect personal rights and freedoms. These bodies and persons shall bear responsibility for the actions violating the rights and freedoms of the individual (Article 59). The State shall be bound by the principle of supremacy of law. The State and all the bodies and officials thereof shall operate within the confines of the Constitution and acts of legislation adopted in accordance therewith (Articles 7.1; 7.2).

 When evaluating the provisions of the Law the Constitutional Court deems that the legislator by establishing legal regulation proceeds from the mentioned and some other constitutional principles and rules. These rules require appropriate mechanisms to be established for the exercise of constitutionally guaranteed rights, freedoms and legitimate interests of individuals and legal entities in the progress of administrative procedures; transparency and efficiency of governmental and other authorised bodies to be raised when individuals and legal entities apply thereto for administrative procedures. They also require complete and concrete regulation of the most important public relationships.

 The purpose of administrative procedures is to arrange links between state bodies, other authorised bodies and individuals and legal entities in the exercise of their rights, freedoms, legitimate interests and duties, including those provided for by the Constitution, in particular the right of property (Article 44), rights to conduct economic and other activities (Article 13), right to information (Article 34), to social security (Article 47), housing (Article 48), participation in cultural life (Article 51) etc.

 Legislative regulation of administrative procedures is focused on defining a clear framework for lawful conduct of the participants to legal relationships in question, on reducing the discretion of the government when taking administrative decisions, on ensuring the full consideration of the interests of individuals and legal entities applying for administrative procedures. Such regulation is also aimed at further development of a democratic state based on the rule of law, elimination of manifestations of bureaucracy and corruption, removal of excessive administrative barriers and thereby it ensures and protects the rights, freedoms and legitimate interests of the affected persons and contributes towards the efficiency of public authorities.

 Thus, the Law (Articles 1.15; 1.21; 1.24 and 1.25) establishes in the new wording the articles 14, 27, 32 of the Law on the Bases of Administrative Procedures and adds Article 34-1 to it. Thereat it enables a number of actions to be carried out in electronic form through the single portal of electronic services. Such opportunity turns to be one of the measures for further implementation of e-government in the republic, implying an increase in efficiency and rapidness of the progress of administrative procedures. It also provides for the removal of excessive administrative barriers when individuals or legal entities apply to state and other authorised bodies, it facilitates their interaction and establishes, as a result, favourable conditions for solving vital problems of individuals and for conducting economic and other activities. The legislator determines that such a portal shall be a single point for applications to be submitted (withdrawn) in electronic form seeking administrative procedures, administrative decisions (notifications of taken administrative decisions) and administrative complaints to be lodged (withdrawn) (Article 1.1.7 of the Law).

 The rules of Article 1 of the Law are also aimed at managing the workflow on receiving applications of interested persons and at enhancing the efficiency of the authorised bodies involved in the administrative process. These rules provide for the delegation to other organisations of the authorised bodies’ power to decide on the refusal of applications of interested persons (Article 1.5). They also impose to establish a “one contact” service in local executive and administrative bodies at the basic territorial level as well as in district administrations in the cities in order to ensure the applications of interested persons to be received at a single location (Article 1.6).

 Where a person has lodged the administrative complaint, the Law (Articles 1.11 and 1.25) determines his/her right to withdraw it, what aims to implement the constitutional provision on everyone’s right, not obligation to protect their rights and legitimate interests (Article 22 of the Constitution). The Law thereby provides interested and third parties with real mechanism enabling them to decide, at their own discretion having regard to the circumstances changed, whether to force the adjudication of the lodged complaint, what corresponds to the social character of the Belarusian state (Article 1 of the Constitution). Accordingly decreases the administrative burden on the adjudicating administrative authorities.

 Articles 14.6; 15.3; 17.1 and 17.2; 18.1; 26.2; 27.1; 32.3 and 34-1.1 of the Law on the Bases of Administrative Procedures in the wording of the Law regulate the processing in the applications of interested persons, their administrative complaints as well as administrative decisions of authorised bodies lodged (taken) in electronic form.

 The opportunity to apply for administrative procedure electronically and the use of such a form in administrative processing is in line with international approaches of the electronic governance development. The use of information and communication technologies is considered by international practice, in particular by the Recommendation Rec(2004)15 of the Committee of Ministers of the Council of Europe to member states on electronic governance (“e-governance”), adopted on 15 December 2004, as a medium to support democratic processes; to provide a framework for partnership between the public authorities, the private sector and other organisations of civil society; to strengthen the participation, initiative and engagement of citizens in national, regional and local public life; to improve the transparency of the democratic decision-making process and the accountability of democratic institutions; to improve the responsiveness of public authorities; to foster public debate and scrutiny of the decision-making process.

 2. The Law on the Bases of Administrative Procedures is added by provisions where the number of participants in the administrative procedure is enlarged specifically including third parties with their rights and obligations stipulated (articles 1.1.3 and 1.13 of the Law). As Article 1.3.1 of the Law on the Bases of Administrative Procedures in the wording of the Law establishes, a third party is an individual or a legal entity other than an interested person whose participation in the administrative procedure is provided for by acts of legislation and whose rights and (or) obligations are affected by the administrative decision.

 In the opinion of the Constitutional Court, the fact that the Law qualifies third parties, whose rights and (or) obligations are affected under legislation when the administrative procedure is in progress, as participants in administrative procedures meets the constitutional rules on the priority of the person ensuring the rights and freedoms, everyone’s equality before the law and the obligation of the state to take all measures at its disposal to implement and protect these rights and freedoms (Articles 21, 22 and 59 of the Constitution). It is also aimed at creating guarantees for the provision and protection of the rights, freedoms and legitimate interests of the individuals and legal entities. The definition by the Law of a new participant in the administrative procedure – the third party – is designed to formalise the legal status of such persons, providing them with legal remedies to protect their rights and legitimate interests, to reduce public conflicts and ensure a fair administrative decision-making.

 3. The Law expands the access to information on administrative procedures for interested parties through the global Internet computer network: the content provided for in the Law on the Bases of Administrative Procedures shall be available in the relevant pages of the official websites of higher government authorities (higher organisations) (Article 1.7.3).

 The Constitutional Court considers that such a legislative approach establishes a more effective mechanism for the implementation of constitutional provisions on the individual, his rights, freedoms and guarantees to secure them as the supreme value and goal of the society and the State as well as of Article 34.1 of the Constitution which guarantees the right of the citizens of the Republic of Belarus to receive, store and disseminate complete, reliable and timely information on the activities of state bodies. This will provide further access for interested and other persons to up-to-date information on administrative procedures. It will also expand the availability of timely communication of appropriate information for them and it will make the activities of state bodies and other organisations which carry out administrative procedures more open and accessible.

 The implementation of the provisions of Article 34.1 of the Constitution is also aimed at in Article 1.11.4 of the Law according to which documents and (or) information received by authorised bodies from other state bodies, other organisations and which are necessary for the progress of administrative procedures shall be made available for interested persons. Such persons shall be entitled to copy them out unless otherwise provided by legislation on state secrets, commercial or other secrets protected by the law.

 4. In accordance with Article 1.16 of the Law Article 20 of the Law on the Bases of Administrative Procedures is added by paragraph 2 which provides that when administrative procedures are in progress the collection, processing, storage, use of personal data of the individuals shall occur without their written consent subject to the requirements on the protection of information, dissemination and (or) delivery of which is limited, as established in legislative acts. The content of this rule implies the restriction on the constitutional right of the individuals, whose personal data are to be used in the progress of administrative procedures, to privacy (Article 28 of the Constitution). It also restricts the right of the individual to dispose of such information at his/her discretion, make it available or restrict access to it, establish the procedure and conditions of access in accordance with legislative acts (Article 33.1 of the Law of the Republic of Belarus “On Information, Informatisation and Protection of Information”).

 The Constitutional Court notes that Article 28 of the Constitution allows for the interference in private life in accordance with the law. The provision on the collection, processing, storage, use of personal data of the individuals when administrative procedures are in progress, stipulated in the Law, complies with the provisions of Article 23.1 of the Constitution as it meets the requirements for the level of a normative legal act and its direction to achieve constitutionally valuable goals in the interests of protecting the rights and freedoms of others. The restriction in question, provided that the protection of personal data from unauthorised access by other persons is ensured, shall not be considered unacceptable and excessive and it shall be deemed to be based on the constitutional rules.

 The rights and legitimate interests of individuals and legal entities are also restricted to a certain extent by the provisions of the new wording of Article 15.3.2 of the Law on the Bases of Administrative Procedures. According to them when applying electronically an interested person can participate in the progress of the administrative procedure through his representatives only if provided by legislative acts. These provisions relate to the exercise of the interested person’s constitutional right to legal assistance to exercise and protect his/her rights and freedoms, including the right to make use, at any time, of assistance of his/her representatives in state bodies and also in relations with officials and citizens (Article 62.1 of the Constitution).

 The Constitutional Court considers that if this is the case the interested person may apply personally or lodge either written or oral application and involve his/her representative. So, the non-involvement of the representative shall not be an obstacle to applying for the administrative procedure. In addition, at the current stage it is necessary to take into account the technical capacity of confirming the authority of the representative in electronic form. It should also be considered that representation in the administrative procedures is not limited to lodging the application and all necessary documents. According to Article 8.3 of the Law on the Bases of Administrative Procedures representatives of the interested person in the administrative procedure may perform actions to which the interested person is entitled within the powers granted, that is to receive explanations on the rights and obligations, to get acquainted with materials related to processing in applications, copy them out, lodge complaints against administrative decisions, etc. Therefore the restriction in question, imposed when an electronic application is lodged, shall be acceptable in the context of Article 23.1 of the Constitution; it does not violate the optimal balance of interests of the individual, society and the state; it is also proportional to such protected constitutional values as the rights of persons, including interested ones, which may be affected by unfair actions of persons who have delivered documents electronically in view of the progress of administrative procedures without any appropriate powers for representation.

 The analysis of the provisions of the Law allows to conclude that the Law is aimed at improving legal regulation of public relationships in the field of administrative procedures in order to ensure the constitutional rights and legitimate interests of the individuals and legal entities to the fullest extent, at contributing to the running efficiency of state bodies, other authorised bodies competent to carry out administrative procedures.

 The Law has been adopted by the House of Representatives of the National Assembly of the Republic of Belarus within the competence under Article 97.1.2 of the Constitution; and approved by the Council of the Republic of the National Assembly of the Republic of Belarus within the competence under Article 98.1.1 of the Constitution. The houses of the National Assembly of the Republic of Belarus have acted within their competence under Articles 97–100 of the Constitution.

 The Constitutional Court therefore concludes that the Law is in conformity with the Constitution as regards the contents of rules, form of the act and procedure of adoption.

 Guided by Article 116.1, Article 116.7 of the Constitution of the Republic of Belarus, Article 24.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 103–105 of the Law of the Republic of Belarus “On the Constitutional Proceedings” the Constitutional Court of the Republic of Belarus

 RULED:

 1. To recognise the Law of the Republic of Belarus “On Making Addenda and Alterations to the Law of the Republic of Belarus “On the Bases of Administrative Procedures” to be conforming to the Constitution of the Republic of Belarus.

 2. The present Decision shall come into force from the date of adoption.

 3. To publish the present Decision in accordance with the legislation.

Presiding Officer –

Petr Miklashevich,

Chairman of the Constitutional Court

of the Republic of Belarus