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, L.M. Ryabtsev, A.G. Tikovenko, S.P. Chigrinov

in accordance with Article 116.1 of the Constitution of the Republic of Belarus (hereinafter – the Constitution), 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 considered the case on constitutionality of the Law “On Making Alterations and Addenda to the Budget Code of the Republic of Belarus” in the exercise of obligatory preliminary review.

Having heard the reporting judge T.S. Boiko, having analysed the provisions of the Constitution, the Budget Code of the Republic of Belarus, the Law of the Republic of Belarus “On Making Alterations and Addenda to the Budget Code of the Republic of Belarus” 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 Alterations and Addenda to the Budget Code of the Republic of Belarus” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 19 December 2017 and approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 20 December 2017 and submitted to the President of the Republic of Belarus for signing.

The Law makes alterations and addenda to the Budget Code of the Republic of Belarus (hereinafter – the Code) aimed at improving legal regulation of budgetary relations, including by harmonising the rules of the Code with the relevant provisions of other legislative acts.

The Constitutional Court verifies the constitutionality of the Law proceeding from the provisions of the Constitution stipulating that:

the Republic of Belarus exercises supreme control and absolute authority over the whole of its territory and implements an independent domestic and foreign policy (Article 1.2);

the financial and credit system of the Republic of Belarus shall include the budget system, the banking system, as well as the financial resources of non-budget funds, funds of enterprises, establishments, organizations and citizens; a unified fiscal, tax, credit and currency policy shall be pursued in the territory of the Republic of Belarus (Article 132);

the budget system of the Republic of Belarus shall include the national budget and local budgets; budget revenue shall be raised from the taxes specified in law, other mandatory payments, as well as other receipts; national expenditure shall be covered by the national budget on its expenditure side; in accordance with the law, non-budgetary funds may be created in the Republic of Belarus (Article 133);

the procedure for drawing up, approving and implementing budgets and public non-budgetary funds shall be determined by the law (Article 134).

In addition, when assessing the constitutionality of the Law, the Constitutional Court also takes into account the legal positions set out in a number of decisions under the exercise of obligatory preliminary constitutional review in relation to the provisions of the Code which remain relevant (decision of 10 July 2008 “On the Conformity of the Budget Code of the Republic of Belarus to the Constitution of the Republic of Belarus”, decisions of 8 October 2010, 16 October 2012 and 28 December 2015 as a result of the review of constitutionality of laws on making alterations and addenda to the said Code).

1. The principle of transparency in Article 8 of the Budget Code of the Republic of Belarus, which provides for and exposes the principles of the budgetary system of the Republic of Belarus, is supplemented with an indication of openness by Article 1 of the Law (para 3).

In accordance with the new wording of Article 8.5 of the Code (paragraphs five to twenty-two of Article 1.3 of the Law), the principle of openness and transparency means the official publication, promulgation (publication) by other means, in accordance with the procedure established by legislative acts, of normative legal acts on the republican budget, local budgets and budgets of state extra-budgetary funds for the next financial year, on making alterations and (or) addenda to the law on the republican budget, decisions of local Councils of Deputies on the budget, legislative acts on budgets of state extra-budgetary funds for the current financial year, approval of reports on the implementation of the republican budget, local budgets and budgets of state extra-budgetary funds for the reporting financial year, as well as transparency of the procedure for consideration of draft laws on the republican budget for the society and media, decisions of local Councils of Deputies on the budget, legislative acts on the budgets of state extra-budgetary funds for the next financial year and adoption of the relevant normative legal acts, results of examinations by the Committee of State Control of the Republic of Belarus of reports on the implementation of the republican budget and the budgets of state extra-budgetary funds for the reporting financial year, as well as examinations of the implementation of local budgets conducted by the Committee of State Control and (or) its territorial bodies during the current financial year (except for information constituting state secrets, other information, distribution and (or) provision of which is limited in compliance with legislative acts), and other documents, data and reports containing information on various aspects of the budget process and budget relations. In addition, openness to the society and the media concerning drafts of normative legal acts and information specified in paragraphs two to nine of Article 8.5.2.1 of the Code is ensured (including by means of official websites of relevant state bodies and organisations) by state bodies and organisations specified in paragraphs two to seven of Article 8.5.2.2.

The Constitutional Court considers that supplementing the principle of transparency with the indication of openness as its most important component meets the constitutional requirements according to which the Republic of Belarus shall be bound by the principle of supremacy of law, normative acts of state bodies shall be published or promulgated by other means specified by law (Articles 7.1 and 7.4); citizens of the Republic of Belarus shall be guaranteed the right to receive and disseminate complete, reliable and timely information on the activities of state bodies on economic life (Article 34.1); reports on implementation of the republican and local budgets shall be published (Article 135.3); the Committee of State Control shall exercise state control over implementation of the republican budget, use of state property and implementation of the acts of the President, the Parliament, the Government and other state bodies, regulating state property relations and economic, financial and tax relations (Article 129).

2. In accordance with Article 1.7 of the Law, Chapter 5 of the Code is supplemented with Article 211 which defines the indicators to be approved by the legislative act on the budget of the state extra-budgetary fund.

This addendum is aimed at enshrining a uniform procedure for drawing up budgets of state non-budgetary funds. Proceeding from the system analysis of the content of Article 211 of the Code in conjunction with Article 20.1 of the Code, according to which state non-budgetary funds shall be based on the principles of the budget system of the Republic of Belarus, as well as with Articles 89 and 93 of the Code providing for indicators approved by the law on the republican budget and the decision of the local Council of deputies on the budget for the next financial year, the Constitutional Court comes to the conclusion that such legal regulation is based on the provisions of the Constitution stipulating that the financial and credit system of the Republic of Belarus shall include the budget system as well as the financial resources of non-budgetary funds; a uniform fiscal, tax, credit and currency policy shall be pursued in the territory of the Republic of Belarus (Article 132); the procedure for drawing up, approving and implementing budgets and public non-budgetary funds shall be determined by law (Article 134).

3. Articles 28 and 30 of the Code regulating budget revenues are amended in order to provide for the abolition of deductions from value added tax to the budget of Minsk with simultaneous increase of the rate of deductions from this tax to the republican budget (Articles 1.13 and 1.14 of the Law). Article 1.17 of the Law makes an addendum to Article 35 of the Code, which determines non-tax revenues of budgets of the basic and primary levels, providing for payment for lease of surface water bodies, their parts in accordance with the legislation – 100 percent and payment for the right to conclude lease contracts for land plots in accordance with the legislation – 100 percent.

A number of alterations are made to articles of the Code relating to expenditures of budgets. Thus, Article 41 of the Code, which enshrines the forms of granting budgetary funds, is set out in a new wording (Article 1.20 of the Law). It follows from the content of this Article that the legislator excludes budget loan as a form of expenditure and at the same time it clarifies the existing forms and provides for new forms of granting budgetary funds – contributions to the statutory funds of organisations and fulfillment of obligations under guarantees of the Government of the Republic of Belarus, local executive and administrative bodies.

In order to harmonise budgetary accounting with international standards, alterations and addenda are made to Articles 44-47 of the Code that define expenditures financed from the republican and local budgets (paragraphs 21-24 of Article 1 of the Law).

Chapter 8 “Deficit (surplus) of the republican budget, local budgets, its approval” of the Code is set out in a new wording (Article 1.25 of the Law). This chapter specifies the rules concerning the maximum amount of the deficit (minimum amount of the surplus) of the relevant budget and the procedure for its approval, and also specifies the provisions of Articles 50 and 51, which provide, respectively, for the sources of financing the deficit (ways of using the surplus) of the republican and local budgets.

Thus, Article 50 of the Code provides that the sources of financing the deficit (ways of using the surplus) of the republican budget shall include funds from operations with budgetary funds allocated on a returnable basis, exchange rate differences determined in accordance with the law, etc.

The Constitutional Court considers that these alterations and addenda are aimed to specify the norms of deductions from republican taxes, to enshrine the types of non-tax revenues established by the legislation and to clarify and determine the expenses financed from the corresponding budgets. Such legal regulation proves implementation of the principles of the budgetary system of the Republic of Belarus enshrined in Article 8 of the Code, primarily the principles of completeness of reflecting the revenues and expenditures of budgets, balance and independence of budgets, which is consistent with the principles and rules of the Constitution.

4. The Law (Article 33.1) supplements section VI “Participants in the budgetary process and their powers” of the Code with Article 791, which defines the administrators of budget revenues and their authority.

Article 791.1 of the Code stipulates that the republican government bodies, their territorial bodies, other state organisations subordinate to the Government, other state bodies and other state organisations subordinate to the President of the Republic of Belarus, their territorial bodies, local executive and administrative bodies and their structural subdivisions, determined in accordance with Articles 791.1.2 and 791.1.3 shall be the administrators of budget revenues.

Article 791.2.1 of the Code stipulates that the administrator of budget revenues shall be empowered to form a list of subordinated administrators of budget revenues, to assign sources of budget revenues to them and to vest them with appropriate powers; to maintain a consolidated register of sources of budget revenues, assigned to it and to subordinate administrators of budget revenues; to exercise the calculation, accounting and control over the correctness of the calculation, completeness and timeliness of payments to the budget from sources of budget revenues, assigned to it by legislation; to recover unpaid (not fully paid) amounts of taxes, fees (duties) and other tax revenues, as well as non-tax revenues, assigned to it by legislation in accordance with the procedure established by law; to take decisions on the return (offset) of excessively paid (collected) payments to the budget, assigned to it by legislation, and their return in accordance with the procedure established by law; to receive information necessary to account for budget revenues, assigned to it by legislation from organisations and individuals, which are charged with payments to the budget; to submit to the Ministry of Finance of the Republic of Belarus (local financial bodies) materials necessary for the drafting of the republican (local) budgets, the calculated indicators for the consolidated budget of the Republic of Belarus (consolidated budgets of administrative-territorial units), and other powers in accordance with the legislation.

The Constitutional Court considers that supplementing the Code with Article 791 is aimed at improving the mechanism for monitoring the correctness of calculation, completeness and timeliness of payments to the revenue of the budgets, creating a clearer system for monitoring the receipt of non-tax revenues, as well as conditions for providing the financial bodies with necessary information for quality planning of the budget revenue that meets the principles and rules of the Constitution, including Article 133.2 according to which budget revenues shall be formed from taxes determined by law, other obligatory payments as well as other receipts.

5. The Constitutional Court also draws attention to the provisions of Article 791 of the Code, according to which the organisation of work, functions and powers of administrators of budget revenues shall be carried out according to the procedure established by the Government; a list of budget revenue administrators that are state bodies and other state organisations subordinate to the President of the Republic of Belarus, republican bodies of state power, other state organisations subordinate to the Government and other organisations, their powers and the sources of revenues of the republican and local budgets assigned to them shall be established by the Government; lists of administrators of budget revenues that are structural units of local executive and administrative bodies, other organisations, their powers and the sources of local budget revenues assigned to them shall be established by the relevant local executive and administrative bodies, unless otherwise established by the Government in accordance with part two of paragraph 1 of this Article.

While reviewing the constitutionality of these provisions of the Law, the Constitutional Court comes to the conclusion that vesting the Government and local executive and administrative bodies with these powers is consistent with the rules of the Constitution, by virtue of which the Government of the Republic of Belarus shall direct the system of subordinate bodies of state administration and other executive bodies and ensure implementation of a uniform economic, financial, credit and monetary policy (Articles 107.2 and 107.5); local councils of deputies and executive and administrative bodies shall, within their competence, resolve issues of local significance, proceeding from national interests and interests of the people who reside in the corresponding territory, and implement decisions of higher state bodies (Article 120).

6. Article 1.2 of the Law supplements the Code with Article 41 “Plan for formation and use of funds under the state of emergency, martial law”, which defines the concept of “emergency budget”, the powers of the President of the Republic of Belarus to approve the emergency budget, the report on the implementation of the emergency budget, decision on the termination of its implementation, as well as the powers of the Government of the Republic of Belarus to establish the procedure for the formation, implementation and drawing up a report on the implementation of the emergency budget taking into account features established by the legislation.

Supplementing the Code with these rules is aimed at ensuring uninterrupted financing of measures to protect the sovereignty and territorial integrity of the Republic of Belarus, meeting the needs of the state and the needs of the population under the state of emergency, martial law.

The Constitutional Court considers that such legal regulation is consistent with the provisions of the Constitution according to which the Republic of Belarus exercises supreme control and absolute authority over the whole of its territory and implements an independent domestic and foreign policy; the Republic of Belarus shall defend its independence and territorial integrity, its constitutional system, and safeguard lawfulness and law and order (Articles 1.2 and 1.3); the President of the Republic of Belarus shall be the Head of State, the guarantor of the Constitution of the Republic of Belarus, the rights and liberties of man and citizen; the President shall provide the protection of the sovereignty of the Republic of Belarus, its national security and territorial integrity, shall ensure its political and economic stability; exercises other powers entrusted to him by the Constitution and the laws (Articles 79.1, 79.2, 84.30).

At the same time, the Constitutional Court notes that the bodies defined in Article 41 of the Code, when exercising the powers granted to them in relation to the plan for the formation and use of funds under the state of emergency, martial law, shall take into account the provisions of Article 63 of the Constitution, according to which the exercise of the personal rights and liberties specified in this Constitution may be suspended only during a state of emergency or martial law under the procedure and within the limits specified in the Constitution and the law; in carrying out special measures during a state of emergency, the rights specified in Article 24, part three of Article 25 and Articles 26 and 31 of the Constitution may not be restricted.

Thus, from the revealed constitutional and legal meaning of the Law it follows that its rules are aimed at improving the relations between the participants of the budgetary process concerning drawing up, consideration, approval, implementation of the republican budget, local budgets and budgets of state extra-budgetary funds and the reports on their implementation, definition of the rights and obligations of the participants of the budgetary process that means the further constitutionalisation of public relations in the budgetary sphere.

The Law was adopted by the House of Representatives of the National Assembly of the Republic of Belarus within the framework of powers in accordance with Article 97.1.2 of the Constitution, approved by the Council of the Republic of the National Assembly of the Republic of Belarus in accordance with Article 98.1.1 of the Constitution. The Houses of the National Assembly of the Republic of Belarus, when adopting the Law, acted within the competence provided for in Articles 97–100 of the Constitution.

In view of the foregoing, the Constitutional Court comes to the conclusion that from the point of view of the content of the rules, the form of the act, the procedure for adoption and delineation of competence, the Law is conforming to the Constitution.

In view of the foregoing, by virtue of Articles 116.1 and 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 “On Making Alterations and Addenda to the Budget Code of the Republic of Belarus” to be conforming to the Constitution of the Republic of Belarus.

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

3. 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