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

 in open court session considered the case “On guarantees of the right to protection for certain categories of individuals in administrative proceedings”.

 The court session was attended by the following persons:

 an authorised representative of the Council of the Republic of the National Assembly of the Republic of Belarus in the Constitutional Court – A.N. Bodak, chairwoman of the Standing Committee of the Council of the Republic of the National Assembly of the Republic of Belarus on legislation and state building;

 an authorised representative of the House of Representatives of the National Assembly of the Republic of Belarus in the Constitutional Court – N.V. Guivik, chairwoman of the Standing Committee of the House of Representatives of the National Assembly of the Republic of Belarus on legislation;

 an authorised representative of the Council of Ministers of the Republic of Belarus in the Constitutional Court – I.G. Tushinsky, Deputy Minister of Justice of the Republic of Belarus;

 representatives of

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

 the General Prosecutor's Office of the Republic of Belarus – A.M. Lashin, Deputy Prosecutor General of the Republic of Belarus;

 the Ministry of Internal Affairs of the Republic of Belarus – I.N. Podgursky, first Deputy Minister of Internal Affairs of the Republic of Belarus;

 the Republican Bar Association – Chairman of the Republican Bar Association V.I. Chaychits.

 The proceedings were instituted by the Constitutional Court on June 13, 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 158.4 of the Law of the Republic of Belarus “On the Constitutional Proceedings”. The Court was applied to by A.R. Levin pointing to the legal gap in legislation of the Republic of Belarus: the defence was not assigned to the individual, proceeded against for administrative offence, though he was unable to defend himself in person owing to physical and mental impairments i. e. major vision, hearing, speech deficiency (the blind, visually impaired, deaf, hearing-impaired, mute, persons with serious speech disabilities and others) as well as anatomical defects or chronic conditions.

 It was stressed in the application that Procedural and Executive Code of the Republic of Belarus on Administrative Offences (hereinafter – the AP Code) did not provide individuals, unable to defend themselves in person owing to physical and mental impairments, with the right to defence.

 Having heard the reporting judge L.M. Ryabtsev, statements of authorised representatives of the House of Representatives of the National Assembly of the Republic of Belarus, the Council of the Republic of the National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus in the Constitutional Court, representatives of the Supreme Court of the Republic of Belarus, the General Prosecutor's Office of the Republic of Belarus, the Ministry of Internal Affairs of the Republic of Belarus, the Republican Bar Association; having analysed the provisions of the Constitution, the AP Code and other legislative acts of the Republic of Belarus; having examined the submitted documents and other materials of the case, the Constitutional Court found the following.

 1. In accordance with 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 (Article 21.1 and Article 21.3).

 As prescribed in Article 22 of 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.

 According to the Constitution 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).

 The mentioned constitutional regulation complies with the provisions of international legal instruments. Thus, the Convention on the Rights of Persons with Disabilities of 2006 (ratified by the Republic of Belarus on October 18, 2016) provides that States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages (Article 13.1).

 In accordance with Article 8.1 of the Constitution the Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith. Therefore the accommodations mentioned in Article 13.1 of the Convention imply that certain guarantees should be introduced in procedural legislation as regards the right to defence of the individuals, proceeded against in administrative proceedings, unable to defend themselves in person owing to physical and mental impairments.

 Thus, the above provisions of the Constitution and the international Convention imply the need to guarantee the right to legal assistance in administrative proceedings if the individuals proceeded against are unable to defend themselves in person owing to physical and mental impairments.

 2. In accordance with Article 39 of the Law “On the Constitutional Proceedings” the Court submitted relevant requests to the Supreme Court, the General Prosecutor's Office, the Ministry of Internal Affairs, the Ministry of Justice, and the Republican Bar Association and received their replies.

 The Supreme Court indicated in its reply that the regulation providing for the right to defence of the individual proceeded against is integrated in the articles of the AP Code, that is in Article 2.3 “Ensuring the protection of the rights and freedoms”, Article 2.8 “Ensuring the right to defence of the individual proceeded against for administrative offence”, Article 4.3 “Legal representative of the individual”, Article 4.5 “Defender and representative”, Article 8.5 “Protocol on administrative detention of the individual”, Article 10.2 “Protocol on administrative offence”, Article 10.6 “Duty to explain the rights and obligations of participants in administrative proceedings” and other articles of the AP Code. In the Supreme Court’s opinion, the rules of the AP Code guarantee the right to defence and enable its realisation for any individual proceeded against including those who are unable to defend themselves in person owing to physical and mental impairments. Therefore the AP Code has no need to be amended.

 According to the General Prosecutor’s Office opinion, by virtue of Article 4.1 of the AP Code any person proceeded against for administrative offence may have a defender. As it is envisaged in Article 4.5.2 of the AP Code one of the close relatives or legal representatives of the individual proceeded against may be admitted to defence. Therefore any individual who has committed an administrative offence, including one having physical or mental impairments, may exercise the right to defence without any restrictions and in full either in person or through representation of his interests by a defender (lawyer, close relative or legal representative). The General Prosecutor's Office has never been filed any information or complaints about violation of the right to defence in administrative proceedings from persons with physical or mental impairments. Therefore any relevant amendments and / or additions to the AP Code are unadvisable.

 The Ministry of Internal Affairs referred to the provisions of the Constitution, the Law of the Republic of Belarus “On Advocacy and Legal Practice in the Republic of Belarus” (Article 1.5), the AP Code (Article 2.8 “Ensuring the right to defence of the individual proceeded against for administrative offence”, paragraphs 5 and 6 of Article 4.1.1 “Rights and obligations of the individual proceeded against for administrative offence”, Article 4.3.1 “Legal representative of the individual”, Article 4.9.1 “Interpreter”). After the said provisions had been analysed, the Ministry consided that the AP Code does not restrict the individuals’ right to legal assistance including those who have physical and mental impairments. It is noted thereat that the Ministry of Internal Affairs constantly studies the arrangement of work in territorial bodies of internal affairs as regards their compliance with legislation on conducting administrative proceedings. And the Ministry has not been reported any information on problems connected with the right to defence exercised by individuals having physical or mental impairments who are unable to defend themselves in person.

 The Ministry of Justice replies that the constitutional provisions envisaging everyone’s right to legal assistance to exercise and protect his rights and freedoms have been implemented in Article 1.4 of the AP Code “Explanation of certain terms of the Procedural and Executive Code of the Republic of Belarus on Administrative Offences”, Article 2.8.1 “Ensuring the right to defence of the individual proceeded against for administrative offence” etc. Constitutional guarantees of the right to defence for persons participating in administrative proceedings are provided in the said AP Code. It does not seem possible in this regard to consider a legal gap in legislation ensuring the exercise of the right to defence of those individuals who are unable to defend themselves in person owing to physical or mental impairments.

 The Republican Bar Association points to a gap in legal regulation, provided in the AP Code as to ensuring the exercise of the right to defence for individuals who owing to physical or mental impairments are unable to defend themselves in person. The position of the Republican Bar Association is based on the fact that in administrative proceedings the rights of a person which may be held administratively liable are somehow restricted. And the forcible effect of criminal law measures imposed on the accused differs from the effect of administrative and legal measures applied to a person in administrative proceedings as well as it is different depending on the administrative offence committed.

 However, the individual having physical or mental impairments who is unable to defend himself in person should be entitled to exercise his rights in full, depending on the administrative offence committed and in view of administrative measures that may be applied. Since physical and mental impairments often prevent such persons from exercising this right, the defence must be ensured by a defender to be assigned to them from the beginning of administrative proceedings, and in the case of administrative detention – as from the moment of declaration to be in administrative detention. The Republican Bar Association considers that relevant additions should be made to the AP Code.

 3. According to Article 2.3.1 and Article 2.8.1 of the AP Code the court or the body conducting administrative proceedings shall ensure the protection of the rights, freedoms and legitimate interests of the parties; enable such protection as envisaged by the AP Code; take timely measures to meet legal requirements of the parties. The individual proceeded against shall have the right to defend himself either in person or through legal assistance under the procedure established by the AP Code.

 The AP Code envisages the right of an individual proceeded against to have a defender from the beginning of administrative proceedings and in case of administrative detention – as from the moment he was declared to be in administrative detention. The individual is entitled to freely communicate with his defender in private and confidentially, to terminate the powers of his defender, to waive the defender, to defend himself in person (Article 4.1.1).

 Article 4.5 of the AP Code defines certain conditions the defender shall meet to take part in administrative proceedings. Legal assistance, protection of the rights, freedoms and legitimate interests of an individual proceeded against for administrative offence may be provided by a defender (Article 4.5.1). In a defence capacity may act either a lawyer who is the citizen of the Republic of Belarus or non-citizen subject to international treaties of the Republic of Belarus. When requested by the individual proceeded against, one of his close relatives or legal representatives may be admitted to defence if so ruled by the body conducting the administrative proceedings (Article 4.5.2). The defender and legal representative shall be admitted to proceedings from their beginning. In case of administrative detention of an individual due to administrative offence the defender shall be admitted to proceedings as from the moment of detention (Article 4.5.5).

 Thus, the AP Code envisages the right of an individual proceeded against to have a defender from the beginning of administrative proceedings and in case of administrative detention – as from the moment he was declared to be in administrative detention. However it does not entitle an individual proceeded against to defence being assigned to him in cases where he is unable to defend himself in person owing to physical or mental impairments.

 Current legislation provides for legal representation to be admitted in administrative proceedings. As established by Article 4.3.1 of the AP Code, the interests of minors or participants of the proceedings who are legally incapable shall be represented by their legal representative. In the absence of legal representation a judge or an official of the body conducting administrative proceedings shall admit a tutorship and guardianship authority as legal representative of the individual proceeded against or of the injured.

 However the AP Code does not prescribe legal representation to be admitted or assigned in administrative proceedings for an individual who has physical or mental impairments preventing him to defend himself in person, but who has not been declared legally incapable under the established procedure.

 The Constitutional Court deems that legal provisions of the AP Code do not safeguard the right to protection through defence to be assigned to the individual in proceedings related to administrative offence in cases where he is unable to defend himself in person owing to physical or mental impairments. In the Constitutional Court opinion, such regulation de facto does not enable the individual to enjoy in full his 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 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, as prescribed in Article 62 of the Constitution.

 In view of the foregoing the Court identifies a gap in legislation having constitutional and legal meaning.

 4. The constitutional provisions envisaging equality of all before the law and the right to equal protection of their rights and legitimate interests without any discrimination have been implemented in the criminal procedure legislation.

 As distinct from the AP Code, the Criminal Procedure Code of the Republic of Belarus (hereinafter – the CP Code) specifies the instances and procedure for the defender to be assigned in the reported crime proceedings and proceedings in criminal cases. Thus, according to Article 45.1 of the CP Code the defender shall be assigned in the reported crime proceedings and proceedings in criminal case provided that the suspect or the accused so request; the suspect or the accused are minors; the suspect or accused can’t speak the language of criminal proceedings or are illiterate; the suspect or the accused are unable to defend themselves in person owing to physical or mental impairments; a person is suspected or charged with extremely serious crimes; there are contradictions between the interests of suspects or accused and if at least one of them has a defender; the suspect or the accused request to make a pre-trial co-operation agreement.

 In accordance with paragraph 10 of the resolution of the Plenum of the Supreme Court of the Republic of Belarus of September 24, 2009 No. 7 “On securing the right to defence in criminal proceedings” individuals who are unable, owing to their physical impairments, to defend themselves in person shall be those who in particular suffer from major vision, hearing, speech deficiency (the blind, visually impaired, deaf, hearing-impaired, mute, persons with serious speech disabilities and others) or persons with such anatomical defects or chronic conditions which limit their ability to enjoy their right to defence.

 The said resolution of the Supreme Court Plenum clarifies that mental impairments preventing the suspect or the accused to defend themselves in person shall include permanent or temporary mental disorders envisaged in the International Statistical Classification of Diseases and Related Health Problems, 10-th revision (ICD-10). Such disorders do not exclude mental capacity but indicate a person's inability to fully understand the nature and significance of his procedural standing, to take in good sense, appreciate, and use to his benefit the facts which contradict suspicion or accusation or the facts mitigating liability as well as to exercise his procedural rights and obligations.

 Thus, the CP Code specifies the instances and procedure for the defender to be assigned in the reported crime proceedings and proceedings in criminal cases provided that the suspect or the accused are unable to defend themselves in person owing to their physical or mental impairments.

 5. 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). 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 therewith (Article 7.1 and Article 7.2). 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 (Article 21.1 and Article 21.3). 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 (Article 59.1 and Article 59.2).

 In view of the said constitutional provisions the Constitutional Court deems that legal regulation in the AP Code does not safeguard the exercise of the individual right to protection as it does not envisage the defence to be assigned in proceedings related to administrative offence to those administratively liable persons, who are unable to defend themselves in person owing to physical or mental impairments. Therefore legal regulation neither enables the individual to protect his rights and legitimate interests in a due manner, nor contributes to the violated rights be timely and effective restored.

 Proceeding from the constitutional rules, in order to comply with the constitutional principle of the rule of law requiring timely filling of gaps in normative legal acts, elimination of conflicts and legal uncertainty, suggesting the creation of the legal system where legal acts are system-related and consistent, where clarity, accuracy, consistency and logical coherence of legal rules are ensured, the Constitutional Court recognises the need to eliminate the gap in legal regulation having constitutional and legal meaning by making appropriate alterations and (or) additions to the AP Code.

 In view of the foregoing, guided by Article 116.1, Article 116.7 of the Constitution of the Republic of Belarus, Article 22.3.8 and Article 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Article 74.2, Articles 75, 77, 80, 84, Article 85.17 and Article 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 comply with the constitutional principles of the rule of law, everyone’s equality before the law, in view of the right to equal protection of the rights and legitimate interests without any discrimination, aiming to ensure everyone’s constitutional right to legal assistance to exercise and protect the rights and freedoms, to recognise the need to eliminate the gap in the Procedural and Executive Code of the Republic of Belarus on Administrative Offences in terms of the individual right to protection and to envisage the defence to be assigned in administrative proceedings if the individual proceeded against is unable to defend himself in person owing to physical or mental impairments.

 2. To suggest to the Council of Ministers of the Republic of Belarus to prepare a relevant draft law on making alterations and addenda to the Procedural and Executive Code of the Republic of Belarus on Administrative Offences and to submit the draft law 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 adoption.

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

Presiding Officer –

Petr Miklashevich,

Chairman of the Constitutional Court

of the Republic of Belarus