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

in open court session considered the case “On Ensuring the Right to Unhindered and Prompt Legal Assistance in Criminal Proceedings”.

The court session was attended by:

Ms N.V. Guyvik, Chairperson of the Standing Commission on Law of the House of Representatives of the National Assembly of the Republic of Belarus ‒ the authorised representative of the House of Representatives of the National Assembly of the Republic of Belarus in the Constitutional Court;

Mr I.G. Tushynskiy, Deputy Minister of Justice of the Republic of Belarus ‒ the authorised representative of the Council of Ministers of the Republic of Belarus in the Constitutional Court;

the representatives:

of the Supreme Court of the Republic of Belarus ‒ Mr R.G. Aniskevich, Deputy Chairman of the Supreme Court of the Republic of Belarus;

of the Investigative Committee of the Republic of Belarus – Mr S.Y. Azemsha, Deputy Chairman of the Investigative Committee of the Republic of Belarus;

of the General Prosecutor's Office of the Republic of Belarus – Mr I.G. Sevruk, Head of the Department of Supervision over Application of Legislation by the Investigative Committee of the Republic of Belarus of the General Prosecutor's Office of the Republic of Belarus;

of the Belarusian Republican Attorneys’ Bar Association – Mr V.I. Tchaitchits, Chairman of the Belarusian Republican Attorneys’ Bar Association.

The proceedings were initiated by the Constitutional Court on 30 May 2017 in accordance with Article 116.1 of the Constitution of the Republic of Belarus (hereinafter – the Constitution), Article 22.3.8 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Article 158.1 and Article 158.3 of the Law of the Republic of Belarus “On the Constitutional Proceedings” on the basis of the application submitted by the Republican Bar Association pointing to legal uncertainty of the provisions of the Criminal Procedure Code of the Republic of Belarus (hereinafter – the CPC) as regards the lawyer’s access to the files of the reported crime and proceedings in criminal cases.

In the letter of the Belarusian Republican Attorneys’ Bar Association it is noted that Article 62 of the Constitution establishes prohibition of obstruction to rendering legal assistance in the Republic of Belarus without any exceptions. Literal reading of this Article does not presuppose authorisation from the investigator to “admit” a lawyer to the criminal proceedings. The performance by a lawyer of the procedural duties of defence counsel can not be made dependent on the discretion of an official or body in charge of the criminal proceedings.

According to the Belarusian Republican Attorneys’ Bar Association, the wording of the criminal procedure rules results in legal uncertainty of the provisions of Articles 44 and 48 of the CPC prescribing the admittance of a lawyer to the files of the reported crime and proceedings in the criminal case. In order to eliminate this legal uncertainty, alterations and addenda to the CPC excluding the possibility of hindering the admittance of the lawyer to proceedings are required.

Having heard the reporting judge S.P. Chigrinov, the authorised representatives of the House of Representatives of the National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus in the Constitutional Court, the representatives of the Supreme Court of the Republic of Belarus, the General Prosecutor's Office of the Republic of Belarus, the Investigative Committee of the Republic of Belarus, the Belarusian Republican Attorneys’ Bar Association, having analysed the provisions of the Constitution, the CPC and other legislative acts of the Republic of Belarus, having examined the submitted documents and other case materials the Constitutional Court found the following:

1. In accordance with Article 39 of the Law “On the Constitutional Proceedings” the Constitutional Court sent requests to the Supreme Court, the General Prosecutor's Office, the Investigative Committee, the Ministry of Justice and the Belarusian Republican Attorneys’ Bar Association.

In the Supreme Court's reply it is pointed out that the issues of participation of the lawyer in the criminal proceedings are sufficiently regulated by the current rules of the CPC. In addition, the Resolution of the Plenum of the Supreme Court of the Republic of Belarus of 24 September 2009 No. 7 “On Ensuring the Right to Defence in Criminal Proceedings” provides explanations on ensuring the right of the suspect, the accused and other participants in criminal proceedings to legal assistance. The wording of Articles 44 and 48 of the CPC used by the legislator together with other rules regulating participation of the lawyer in the criminal proceedings determines the moment when the lawyer begins to participate in the proceedings, his rights and duties, and application of these norms does not cause difficulties in practice. There is no legal uncertainty in the provisions of Articles 44 and 48 of the CPC.

According to the Prosecutor General's Office, the entry of a lawyer into the criminal proceedings (in contrast to other participants in the process) does not require resolution (ruling) of the body conducting the criminal proceedings. The admittance of a lawyer to the criminal proceedings is determined by the moment of taking specific procedural decisions when the defender confirms his powers. The wording concerning the lawyer’s access to the files of the reported crime and proceedings in criminal cases used by the legislator does not indicate legal uncertainty in the law.

The Investigative Committee does not find legal uncertainty in the legal regulation of the entry of a lawyer into the criminal proceedings and does not consider it necessary to amend the CPC in this regard. At the same time the Investigative Committee notes that the wording used by the legislator in the Articles 44 and 48 of the CPC concerning the lawyer’s access to the files of the reported crime and proceedings in criminal cases may be considered as the need for the lawyer to obtain a certain authorisation to access to the files of the reported crime and proceedings in criminal cases. However, in practice, the participation of a lawyer is not dependent on the discretion of the body conducting the criminal proceedings, and there are no problematic issues when a lawyer enters the criminal proceedings.

The Ministry of Justice also does not find legal uncertainty in the legislative regulation of ensuring the right to unhindered and prompt legal assistance in criminal proceedings. In the reply it is noted that from the analysis of the provisions of the Constitution it follows that the state is obliged to establish an appropriate mechanism for exercising the constitutional right of individuals to legal assistance to exercise and protect their rights and freedoms.

The criminal procedure legislation establishes only the requirement to admit a lawyer in the process on the basis of a lawyer's certificate and a warrant to access criminal proceedings. The reference to “admittance” in Articles 44.4 and 48.1.5 of the CPC, in the opinion of the Ministry of Justice, does not give grounds for the possibility of different application of these norms by criminal prosecution bodies at their discretion. If, in practice, there are cases of restriction of admittance of a lawyer to participate in the criminal proceedings, it is necessary to give a principled assessment of such actions of officials as well as actions that may violate the Constitution.

The Belarusian Republican Attorneys’ Bar Association believes that the wording of the criminal procedure rules used by the legislator results in legal uncertainty of the provisions of Articles 44.4 and 48.1.5 of the CPC prescribing the admittance of a lawyer to the files of the reported crime and proceedings in the criminal case. Such wording as “a lawyer is allowed to participate in the criminal proceedings”, “from the moment of admittance to the files of the reported crime and proceedings in the criminal case” allows the body conducting the criminal proceedings to prevent the lawyer from participating in the criminal proceedings, or, more often in practice, to postpone participation of a lawyer.

In order to remove formal obstacles for the lawyer to enter the criminal proceedings and to exclude the practice of using a kind of an authorisation for his admittance to participation in the criminal proceedings, the Belarusian Republican Attorneys’ Bar Association deems it necessary to make alterations and addenda to Articles 44 and 48 of the CPC, according to which the lawyer shall enter the criminal proceedings (or participate in the criminal proceedings), and not shall be admitted to participate in the criminal proceedings, and shall have procedural rights from the moment of entry into the proceedings (or participation in the proceedings) on the files of the reported crime and proceedings in the criminal case, and not from the moment of his admittance.

2. According to the Constitution the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State (Article 2.1); safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State; the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State's international obligations (Articles 21.1 and 21.3).

According to the Constitution all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination (Article 22); everyone shall have the right to legal assistance to exercise and protect his rights and freedoms, including the right to make use, at any time, of assistance of lawyers and his other representatives in court, other state bodies, bodies of local government, enterprises, institutions, organisations and public associations, and also in relations with officials and citizens. In the instances specified by law, legal assistance shall be rendered at the expense of state funding; obstruction to rendering legal assistance shall be prohibited in the Republic of Belarus (Article 62).

Thus, the Constitution directly stipulates that the individual may enjoy the right to legal assistance for the exercise and protection of his rights and freedoms: at any time; before any body, institution, organisation; in relations with any official and individual. Consequently, the right to legal assistance, including assistance of a lawyer shall be ensured in unhindered and prompt manner at all stages of criminal proceedings and regardless of the procedural status of the individual. This right serves as a guarantee necessary for the exercise of other rights enshrined in the Constitution, including the right to judicial protection (Article 60.1); the right to a trial on the basis of the adversarial proceedings and equality of the parties to the trial (Article 115.1).

Such constitutional regulation meets international legal standards. For example, access to a lawyer as an inalienable guarantee of the right to defence in the determination of any criminal charge is provided for in Article 14.3(b) of the International Covenant on Civil and Political Rights of 1966. According to the Covenant everyone is guaranteed the right to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.

According to the Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Havana, 27 August – 7 September 1990), all persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings (para. 1); Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention (para. 7); all arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality (para. 8).

The Constitutional Court believes that the provisions of Article 62 of the Constitution represent institutional guarantees for due legal protection of other constitutional rights and freedoms of individuals and, in conjunction with Article 22 of the Constitution shall be implemented on the basis of equality of all before the law and non-discrimination.

3. According to Article 4 of the Law of the Republic of Belarus “On Advocacy and Legal Practice in the Republic of Belarus”, organisation of advocacy and legal practice shall be based on the principles of ensuring the right to legal assistance guaranteed by the Constitution; its accessibility; inadmissibility of interference in the professional activity of lawyers from the part of bodies conducting the criminal proceedings, other state bodies, other organisations and officials.

In accordance with the Law, any individual or legal entity in the territory of the Republic of Belarus shall be entitled to apply for legal assistance to a lawyer of his/its choice, with the exception of cases when legal assistance is providing at the expense of bar associations, republican and (or) local budgets, to protect his/its rights and interests before courts, state bodies, other organisations competent to settle relevant legal issues, and before individuals (Article 6.2); a court, state body, other organisation or official may not refuse to recognise the right of a lawyer to represent the rights and interests of an individual or legal entity seeking legal assistance, except in cases provided for by legislative acts (Article 17.3).

Based on the provisions of Chapter 2 of the CPC, the tasks of the criminal process shall be protection of the individual, his rights and freedoms, interests of society and the state by prompt and full investigation of crimes, socially dangerous acts of insane persons, incriminating and bringing to criminal liability those responsible; ensuring the correct application of the law so that everyone who commits a crime shall be justly punished, and no innocent person shall not be prosecuted and convicted (Article 7.1). In accordance with the CPC, all persons participating in criminal proceedings shall be equal before the law and shall have the right without any discrimination to equal protection of their rights and legitimate interests; everyone shall have the right in the course of the proceedings on the files of the reported crime and proceedings in the criminal case to legal assistance to exercise and protect his rights and freedoms, including the right to make use, in cases and in accordance with the procedure provided for by this Code, of legal assistance of lawyers and other representatives (Articles 20.1 and 20.4); restriction of the rights and freedoms of persons participating in criminal proceedings shall be permitted only on the grounds and under the procedure established by this Code (Article 10.2).

When regulating the conditions and the procedure for exercising the right to defence, the legislator stipulates that the suspect and the accused shall have the right, in case of detention or application of incarceration as a preventive measure, to receive, before the first interrogation as a suspect or accused, legal advice from a lawyer at the expense of the local budget; to have a defender or several defenders from the moment when the ruling to institute criminal proceedings against the person is made, the moment of actual detention, application of preventive measure, recognition of the person as the suspect or arraignment; to communicate freely with his defender privately and confidentially without limiting the number and duration of conversations (Articles 41.2.5 to 41.2.7 and 43.2.4 to 43.2.6 of the CPC).

Provisions of the CPC vest the lawyer with the right to participate on the request of the suspect or the accused in their interrogation (Articles 41.2.8, 43.2.7), and also to communicate freely with the defendant privately and confidentially without limiting the number and duration of conversations (Article 48.1.2).

According to Article 46.6.1 of the CPC the lawyer, in confirmation of his powers of a defender, shall present to the body conducting the criminal proceedings a lawyer's certificate and a warrant to access criminal proceedings. One and the same person may not be the defender of two suspects or accused if the interests of the defence of one of them contradict the interests of another one (Article 44.4 of the CPC).

Articles 87.1.1 to 87.1.6 of the Criminal Procedure Code establish the conditions under which a lawyer can not take part in the criminal proceedings.

The Constitutional Court believes that the constitutional and legal meaning of these rules is that a person who is a party to the criminal proceedings shall have the right to unhindered and prompt legal assistance of a lawyer to exercise and protect the rights, freedoms and legitimate interests at all stages of the criminal proceedings. At the same time, the conditions for the participation of a lawyer in the criminal proceedings as defined by Articles 44.4, 46.6.1, 87.1.1 to 87.1.6 of the CPC can not be considered as preventing the receipt of such legal assistance.

4. In accordance with Article 44 of the CPC the defender in criminal proceedings is a person who on the grounds and in the manner prescribed by this Code carries out the defence of the rights and legitimate interests of the suspect or the accused and provides them with legal assistance (Article 44.1); seen as defenders in criminal proceedings shall be lawyers who are citizens of the Republic of Belarus or citizens of other states in accordance with international treaties of the Republic of Belarus (Article 44.2); the defender shall be admitted to criminal proceedings as from the moment when the ruling to institute criminal proceedings against the person is made, the moment of actual detention, application of preventive measure, recognition of the person as the suspect or arraignment (Article 44.4).

By virtue of Article 48.1.5 of the CPC the defender shall be entitled to get acquainted with rulings on institution of criminal proceedings, recognition of the person as the suspect, detention, arraignment, application of preventive measure, with the protocols of detention, interrogations and other investigative actions made with participation of the suspect or the accused in the absence of a lawyer, and to write out necessary information from them only from the moment of his admittance to the files of the reported crime and proceedings in the criminal case.

When formulating the mentioned articles of the CPC, the legislator used the words “be admitted”, “admittance” regarding the initial moment when a lawyer starts providing assistance to the individual on the files of the reported crime and proceedings in the criminal case. According to lexical rules one of the meanings of the word “to admit” is to allow using or doing something, accessing something. Thus, the semantics of the words “be admitted”, “admittance” implies, among other things, obtaining authorisation to carry out an activity.

According to the Constitutional Court, with a literal interpretation of the provisions of Articles 44.4, 48.1.5 of the CPC, law-enforcement bodies may conclude that provision of legal assistance by a lawyer has the nature of an authorisation, that is to carry out legal assistance a lawyer should obtain an appropriate authorisation, written or oral, to be admitted to the files of the reported crime and proceedings in the criminal case.

Determining the procedural conditions for providing legal assistance by lawyers through the mechanism of authorisation to be admitted to the files of the reported crime and proceedings in the criminal case does not allow an individual to fully exercise his right to receive legal assistance from a lawyer at any time, and also creates obstacles for the lawyer in proper and prompt execution of his professional functions related to the provision of qualified legal assistance, as established by the Constitution, the Law “On Advocacy and Legal Practice in the Republic of Belarus”, the general provisions of the criminal procedure legislation of the Republic of Belarus and the rules of the international law.

Such wording of the criminal procedure rules results in legal uncertainty of the provisions of Articles 44.4 and 48.1.5 of the CPC prescribing the admittance of a lawyer to the files of the reported crime and proceedings in the criminal case, since the implementation of these provisions does not prevent the criminal prosecution body from arbitrary actions that may restrict access to unhindered and prompt legal assistance in criminal proceedings.

5. According to the Constitution the Republic of Belarus shall be bound by the principle of supremacy of law (Article 7.1).

The Constitutional Court noted in a number of its decisions that the rule of law includes a number of elements, in particular legal certainty which presupposes clarity, accuracy, consistency and logical coherence of legal rules. By observing the principle of legal certainty in rule-making, conditions for uniformity and foreseeability of law-enforcement are created, that increases trust of the individuals in the State.

In the Message “On Constitutional Legality in the Republic of Belarus in 2015” the Constitutional Court indicated that the Constitution provides the legislator with sufficiently broad discretionary powers, that is, the opportunity for discretion, the “choice space” in regulating specific social relations, determining the specifics of legal regulation, establishing, changing and restricting subjective rights, conditions and mechanisms for their implementation. However, in the exercise of his powers, the legislator shall act within the limits determined by constitutional principles and rules. At that he must take into account the need to maintain the balance and proportionality of the constitutionally protected values, goals and interests that are in unity and not to allow the substitution of one value for another or their derogation.

Legal certainty is the most important factor of the constitutionality of the legislation and it is a fundamental principle of rule-making activity of legislative bodies. Broad discretionary powers of the legislator do not relieve him of the need to take into account the principle of legal certainty in formulating legal rules.

In the Rule of Law checklist adopted by the European Commission for Democracy through Law (Venice Commission) at the 106th plenary session (Venice, 11–12 March 2016) it is noted that foreseeability means not only that the law must, where possible, be proclaimed in advance of implementation and be foreseeable as to its effects: it must also be formulated with sufficient precision and clarity to enable legal subjects to regulate their conduct in conformity with it (para. 58).

According to the Constitutional Court, the legal regulation, when the possibility to make use of assistance of a lawyer depends on discretion of others, does not ensure the full implementation of the constitutional provision on the right of everyone to legal assistance (Article 62 of the Constitution), does not allow the persons concerned to protect their rights and freedoms in proper manner, does not contribute to the timeliness and effectiveness of restoring violated rights.

The Constitutional Court considers that the CPC should provide a mechanism for unhindered and prompt access of a lawyer (with the respect of conditions stipulated by Article 44.4, Article 87.1.1 to 87.1.6 of the CPC and having a lawyer's certificate and a warrant to access criminal proceedings) to criminal proceedings at all stages, ruling out the discretion of the criminal prosecution bodies.

On the basis of the constitutional provisions according to which the Republic of Belarus 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 (Articles 7.1 and 7.2); 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 (Articles 59.1 and 59.2), the Constitutional Court recognised that uncertainty in legal regulation should be eliminated as regards the enjoyment of everyone’s constitutional right to legal assistance to exercise and protect the rights and freedoms, including the right to make use, at any time, of assistance of lawyers in terms of their unhindered and prompt access to criminal proceedings at all stages, and that appropriate alterations and (or) addenda to the CPC should be made by the legislator.

In view of the foregoing, by virtue of Articles 116.1 and 116.7 of the Constitution of the Republic of Belarus, Articles 22.3.8 and 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 74.2, 75, 77, 80, 84, 85.17 and 160 of the Law of the Republic of Belarus “On the Constitutional Proceedings” the Constitutional Court of the Republic of Belarus

 RULED:

 1. In order to implement the constitutional principle of the rule of law, to respect the constitutional right of everyone to legal assistance to exercise and protect his rights and freedoms, including the right to make use, at any time, of assistance of lawyers, to ensure unambiguous understanding and uniform application of the legal rules the Constitutional Court recognised that legal uncertainty in the Criminal Procedure Code of the Republic of Belarus concerning the regulation of the procedure for the entry of lawyers into the criminal proceedings for providing unhindered and prompt legal assistance should be eliminated by the legislator.

2. The Constitutional Court suggested to the Council of Ministers to prepare a draft law on making alterations and (or) addenda to the Criminal Procedure Code of the Republic of Belarus aimed at regulating the access of lawyers to criminal proceedings and to submit it to the House of Representatives of the National Assembly of the Republic of Belarus under the established procedure.

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

4. To publish the present Decision in accordance with the legislative acts.

Presiding Officer – Petr Miklashevich,

Chairman of the Constitutional Court

of the Republic of Belarus