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, O.G.Sergeeva, A.G.Tikovenko, S.P.Chigrinov

 in open court session considered the case «On Legal Regulation of Timeframe for Submission of Enforceable Titles».

 The court session was attended by:

 V.V. Mitskevich, Deputy Head of the Administration of the President of the Republic of Belarus ‒ the authorised representative of the President of the Republic of Belarus in the Constitutional Court;

 A.N. Bodak, Chairwoman of the Standing Committee for Legislation and State Administration of the Council of the Republic ‒ the authorised representative of the Council of the Republic of the National Assembly of the Republic of Belarus in the Constitutional Court;

 the representatives:

 of the Supreme Court of the Republic of Belarus ‒ A.A. Zabara, Deputy Chairman of the Supreme Court of the Republic of Belarus;

 of the General Prosecutor’s Office of the Republic of Belarus ‒ A.K. Stuk, Deputy General Prosecutor of the Republic of Belarus;

 of the Ministry of Justice of the Republic of Belarus – A.D. Avdeev, Deputy Minister of Justice of the Republic of Belarus.

 The proceedings were initiated by the Constitutional Court on 14 November 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 158.2 and Article 158.4 of the Law of the Republic of Belarus “On the Constitutional Proceedings” as regards legal regulation of the timeframe for enforceable titles to be submitted for enforcement.

 Having heard the reporting judge L.G. Kozyreva, the authorised representatives of the President of the Republic of Belarus, the Council of the Republic of the National Assembly 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 Ministry of Justice of the Republic of Belarus; having analysed the provisions of the Constitution, the Civil Code of the Republic of Belarus, the Law of the Republic of Belarus “On Enforcement Proceedings" (hereinafter – the Law) and other legislative acts of the Republic of Belarus; having examined the submitted documents and other case materials the Constitutional Court of the Republic of Belarus found the following.

 1. The Constitution provides that 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).

 The State shall grant equal rights to all to conduct economic and other activities, except for those prohibited by law, and guarantee equal protection and equal conditions for development of all forms of ownership; it shall guarantee to all equal opportunities for free utilisation of abilities and property for entrepreneurial and other types of economic activities which are not prohibited by law; the State shall regulate economic activities in the interests of the individual and society, and shall ensure the direction and co-ordination of state and private economic activity for social purposes (Articles 13.2; 13.4; 13.5).

 In Article 22 of the Constitution it is stipulated, that 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 be guaranteed protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law (Article 60.1).

 In accordance with Articles 7 and 8 of the Universal Declaration of Human Rights all are equal before the law and are entitled without any discrimination to equal protection of the law; everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

 The International Covenant on Civil and Political Rights establishes that each State Party to the Covenant undertakes to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; to ensure that the competent authorities shall enforce such remedies when granted (paragraphs “a” and “c” of Article 2.3).

 The abovementioned provisions of the Constitution and international legal acts in conjunction with the requirements of part one of Article 59 of the Constitution demand that the State should take all measures available to it to ensure the rights and freedoms of citizens, including judicial protection of them.

 2. 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 Ministry of Justice, the National Center of Legislation and Legal Research of the Republic of Belarus, the Department of Civil Procedure and Labour Law of the Faculty of Law of the Belarusian State University. In their replies these state bodies expressed their opinions about this case.

 The Supreme Court believes that the existing legal regulation of the timeframe for enforceable titles to be submitted for enforcement allows for repeated interruption of submission time limits (on the initiative of the claimant or if he fails to act in good faith) and their extension for an unlimited period of time. In the Supreme Court opinion, such regulation is not entirely consistent with the principles of equality and good faith among the parties to enforcement proceedings as well as with the procedural economy principle enshrined in article 5 of the Law. This approach implies legal uncertainty and does not address the possible abuse of the right by the claimant. Therefore the provisions of the Law regulating the submission time limits should be amended.

 In the opinion of the General Prosecutor’s Office, all the claimants have equal rights: either those to whom the titles have been returned by the enforcement officer due to the fact that the recovery has not been performed or has been performed partially, or those who have requested to return the enforceable titles. Any of them are entitled to repeatedly submit the returned documents within the prescribed timeframe which is calculated in the same way for the claimants of both categories. The withdrawal of the enforceable titles is the right of the claimant who thereby protects his interests, violated by the debtor. The General Prosecutor’s Office believes that the current legislation provide comprehensive and fair regulation of the time limits for submission of enforceable titles and the interruption of them and, therefore, it does not need to be amended.

 The Ministry of Justice points out that the Law clearly regulates the procedure and timeframe for enforceable titles to be submitted for enforcement, the interruption and suspension of time limits as well as the impact of their expiry. This regulation has been based on the fundamental constitutional principle of binding court rulings, the principles of proper fulfillment of obligations, the balance of rights of parties to enforcement proceedings, as well as on the long-term experience in enforcement of different enforceable documents. The abuse by the claimants (mortgagees) of their right to withdraw the enforceable title (at the stage of deciding whether to keep for debt service the debtor’s mortgaged assets, that have not been disposed of, after re-bidding exercise) has been addressed and solved in the Instruction on Enforcement Proceedings, approved by the resolution of the Ministry of Justice of the Republic of Belarus of April 7, 2017 no. 67. The paragraph 134.4 of the Instruction provides that if within one month from the day when repeated bids have been announced to fail, a pledgee (a claimant) has not enjoyed his right to keep the collateral or has requested to return the enforceable titles, the enforcement officer shall rule on the pledge agreement to be terminated, shall withdraw the arrest from those assets, provided there are no any enforceable titles submitted by other claimants. The Ministry of Justice considers the existing regulation of the creditor’s and debtor’s relations to be well-founded, clear and optimal, as well as confirmed by the practice of enforcement of the titles. Therefore, in the Ministry of Justice opinion, the Law does not require any alterations and (or) additions as to the time limits for submission of enforceable titles.

 The National Center of Legislation and Legal Research notes that it does not have any information on application of legal provisions regarding the timeframe for enforceable titles to be submitted for enforcement or any other problems arising or existing when those provisions are applied. The Center points out that the Law has no legal uncertainty when regulating the interruption of submission time limits for the titles to be enforced.

 According to the Department of Civil Procedure and Labour Law of the Belarusian State University, legislation on enforcement proceedings is based on the principle of free disposition. The principle implies the enforcement proceedings is initiated by the claimant. By virtue of this principle the claimant in the enforcement proceedings is entitled to withdraw the enforcement document. The current legislation does not infringe upon the debtor’s rights. The claimant submits the title for enforcement only where the debtor fails to perform his obligation. The Civil Code of the Republic of Belarus enshrines the principle of good faith and reasonableness of participants in civil law relations. And according to the Civil Procedure Code of the Republic of Belarus any party to civil proceedings is deemed to be fair unless otherwise proved (article 13). In this context there are no grounds to avoid applying this principle to the claimant. So, the Department believes that there is no legal uncertainty in the provisions of the Law regarding the submission timeframe for titles to be enforced if the claimant has requested to return the document.

 3. The provisions of the Constitution on guaranteeing by the State of the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State’s international obligations as well as on ensuring everyone’s protection of his rights and freedoms by a court (Article 21.3, Article 60.1) in conjunction with the provision providing for court rulings to be binding upon all citizens and officials (Article 115.2) require that the State should establish an effective legislative mechanism for implementation of all court decisions.

 The enforcement of court decisions is an effective guarantee of judicial protection of everyone’s rights and freedoms. That said the protection of the violated rights might not be considered effective if the decision of the court or another authorised body has not been enforced in a timely manner. That obliges the legislator, who acts within his constitutional discretion, to opt for a certain enforcement mechanism and provide for consistent regulation of relations in this sphere, as well as to create a stable legal basis for enforcement and not to challenge the constitutional principle of binding court rulings.

 The fulfillment of requirements set forth in the enforceable titles is regulated by special legislation, including the Law. In accordance with the Law, the objectives of enforcement proceedings shall include restoration of the violated rights and legitimate interests of citizens, in particular individual entrepreneurs, legal entities, organisations that are not legal entities; respect for and protection of the State interests through the correct, complete and timely enforcement of enforceable titles (article 4).

 The Law establishes that enforcement proceedings shall follow the principles of legality, procedural economy, equality and good faith among the parties to proceedings, the relevance of the creditor’s claims and enforcement measures as well as the impartiality (article 5).

 3.1. Defining the conditions and procedure for conducting enforcement proceedings, the Law provides that enforcement documents, based on court decisions, or which are court decisions, may be submitted for enforcement within a three-year period from the date the relevant decision enters into force or from the expiry of the suspension or the installment of enforcement of the court decision unless otherwise provided by legislative acts (article 34.1).

 According to article 35 of the Law the time limits for the enforceable titles to be submitted for enforcement shall be interrupted in particular where enforcement proceedings have been initiated (part one). And after the interruption the submission period may start anew thereby disregarding the time that might have passed (part two).

 Where the enforcement body is applied within the time limits set forth in article 34 of the Law with a view to initiate enforcement proceedings, provided the claimant submits the enforceable title and his application (submission) meets the requirements of article 43 of the Law, the enforcement officer shall initiate enforcement proceedings (article 42.1 of the Law).

 Article 55 of the Law provides that the initiated enforcement proceedings shall terminate where the requirements of the enforceable title are fulfilled; where the enforceable document has been forwarded to the place of receipt by the debtor (an individial, in particular an individual entrepreneur) of salary and incomes equivalent to it, specified in article 103.3 of the Law; where some facts have been established, that cause the return of the enforceable title to the claimant in accordance with article 53 of the Law; where some facts have been established that imply the termination of the enforcement proceedings in accordance with article 52 of the Law.

 As facts, causing the return of the enforceable title to the claimant after the initiation of the enforcement proceedings, article 53 of the Law identifies cases relating to both the debtor and the claimant.

 The cases related to the debtor are listed in paragraphs three, five to eight, ten to twelve of article 53.1 of the Law: in particular, the debtor may not have money and (or) other recoverable assets; the debtor does not live or is not located at the place of residence (place of stay) or location or the location of his assets has not been established; in relation to the debtor – an individual entrepreneur, a legal entity bankruptcy proceedings have been open; the debtor has no assets to be recovered under the enforceable document. In accordance with paragraphs two, four, nine of article 53.1 of the Law the cases related to the claimant include the claimant’s request to return the enforceable title; the claimant’s refusal to appropriate the debtor’s assets that have not been solved during the process of enforcement of the title, provided the debtor does not have any other recoverable property or income; the claimant’s acts (inaction) preventing the enforcement of the enforceable title.

 If the specified grounds exist, the enforcement officer shall issue a resolution on termination of enforcement proceedings in accordance with article 55.3 of the Law and on return to the claimant of his enforceable document in accordance with article 53.1 of the Law. Thereat the return of the enforceable titles to the claimant does not hamper him from resubmitting the title for enforcement within the timeframe established in article 34 (article 53.2).

 Where a three year period for such a specific procedure, as the submission by the claimant of the enforceable title (issued to him by the court) for enforcement, expires, enforcement proceedings in accordance with article 44.1.6 of the Law shall not be instituted, and therefore the claimant shall not be entitled to enforcement of the court decision. At the same time the timeframe for submitting the title for enforcement shall be interrupted, in particular, by partial enforcement or initiation of enforcement proceedings; after interruption the time limits for submitting the titles for enforcement shall start anew (article 35.1 and article 35.2 of the Law). Thereat, the elapsed time shall not be counted in a (total) new period – unlike the case where the unexpired period shall be suspended simultaneously with the suspension of the enforcement proceedings, and since the date the proceedings are renewed, the period continues (article 32 of the Law).

 At the same time, where the enforceable title, under which the recovery has not been performed or has been performed partially, is returned to the claimant, the calculation of the new submission period of the title to be enforced shall start from the day of its return to the claimant (article 35.3).

 Thus, the resubmission of the enforceable title for enforcement after it has been previously submitted and then returned to the claimant on his request, entails interruption in the submission timeframe and the time limits start anew thereby leading to an indefinite and unlimited right of the claimant to repeatedly submit the enforceable title to the enforcement authorities, thereby creating legal uncertainty in the timeframe established by the Law for submission of the enforceable titles.

 3.2. The Constitutional Court notes that the principle of disposition inherent to civil law relations, by virtue of which participants of civil law relations acquire and exercise their civil rights by their own will and in their interests (article 2.3 of the Civil Code of the Republic of Belarus), extends to procedural relations when courts adjudicate disputes on civil and economic matters. In civil and economic procedural legislation the disposition means that persons, having a lawful interest in the outcome of a case, are entitled to freely dispose of their material and procedural rights without violating the rights and legally protected interests of other persons and the State (article 18 of the Civil Procedure Code, article 23.1 of the Economic Procedural Code).

 As a general rule, the principle of disposition extends also to procedural relations regarding the enforcement of court decisions adopted in the framework of civil proceedings and economic proceedings. The disposition principle is manifested when the claimant in the enforcement proceedings is able to request for the return of the enforceable document, under which the recovery has not been performed or has been performed partially. By virtue of the principles of civil proceedings and economic proceedings, including the equality of all before the law, adversarial nature and equality of the parties to the proceedings, stipulated by the Constitution, the exercise of this claimant’s right may not be restricted, provided that the procedure, established by legislation on enforcement proceedings, is followed. Accordingly, the claimant is entitled to repeatedly submit his enforceable document after its return, as well as to repeatedly withdraw it after the enforcement proceedings have been initiated.

 So, every submission of the title for enforcement after it has been returned to the claimant results in interruption of the submission timeframe. Due to that such repeated acts of the claimant during an unlimited period of time may lead to the situation when the enforcement proceedings will not be completed by fulfilling the requirements of the enforceable document and the debtor would stay at risk of indefinite application of enforcement actions and measures to him and his property.

 4. The Constitution proclaims that 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); guarantees to all freedom of entrepreneurial activity, the right to have property, as well as the right to possess, enjoy and dispose of property either individually or jointly with others, the protection of the said rights and freedoms, in particular by a court, which is implemented on the basis of everyone’s equality before the law (Articles 13.4; 22; 44.1; 44.2; 60.1).

 Ownership, including the grounds and procedure for acquiring, transferring and losing property rights, as well as the scope and limits of the powers to own, enjoy and dispose of property, are regulated by the legislator (of Article 97.1.2 of the Constitution). The content of this regulation, as follows from Articles 1; 2; 8.1; 13.4; 21.1; 21.3; 44.2; 44.5 of the Constitution, may not be arbitrarily defined by the legislator: ownership in the Republic of Belarus shall be regulated in accordance with the principles of the rule of law, on the basis of legal equality and equity and taking into consideration that the ownership, like other human and citizen rights and freedoms, is recognised and guaranteed in the Republics Belarus in accordance with the Constitution and the generally recognised principles and rules of international law.

 By virtue of the constitutional provisions (Articles 1.1; 7.2; 22; 23.1; 44.6; 60.1) and following the general legal principle of equity the ownership and other property rights shall be protected proportionally so as to ensure the balance of the rights and legitimate interests of everyone engaged in civil turnover – owners, creditors, debtors. Any permissible restrictions by the law on the rights to own, enjoy and dispose of property, on freedom of entrepreneurship and freedom of contract shall also meet the requirements of equity, be adequate and proportional.

 The generally recognised principles of inviolability of property and freedom of contract that presuppose equality, free will and property independence of participants in civil law relations, inadmissibility of arbitrary interference in private affairs, stipulate the freedom to own, enjoy and dispose of property, including the possibility to alienate one’s own assets to other persons, transfer ownership and rights to enjoy and dispose to others while remaining the owner. At the same time, however, those principles require to balance the ownership against the rights and freedoms of others. This means, in particular, that the owner shall be entitled to commit on his own any acts in relation to his assets if these acts neither contradict the law and other legal acts nor violate the rights and legitimate interests of others. Accordingly, it is also expected that the owner shall be entitled to fulfill his civil law obligations from his own assets.

 The foregoing shall also be applicable to the relationship between the creditor and the debtor who has not fulfilled his civil law obligation and, thereby shall be responsible to the creditor by his own assets including their possible recovery in cases provided by the Law within the framework of enforcement proceedings.

 According to the Constitution the exercise of the right of property shall not infringe upon the rights and legally protected interests of others (Article 44.6). So, the legislator should provide for equal protection of the creditor’s and debtor’s rights. To that effect it should bear in mind that the arising conflicts between the parties’ legitimate interests should not be overcome by protecting some rights in violation of other rights of equivalent constitutional value. In such cases the rights and legitimate interests of participants in civil turnover should be provided with adequate (proportional) protection based on the balance of constitutional values.

 Thus, the legislator is designed to ensure legal certainty, stability and predictability of the civil turnover, maintain the highest possible level of mutual confidence between the subjects of legal relations, as well as create necessary conditions for the effective protection of ownership and other property rights.

 From that perspective the time limits, laid down by the Law for submission of the titles to be enforced, allows the interested persons – the claimant and the debtor – to avoid uncertainty as to the timeframe for which the recoverable assets will be at risk of application of enforcement measures to them. Taking the established period in mind the claimant will be able to properly arrange his behavior towards these assets.

 However, the Law (articles 34, 35 and 53) allows to interrupt the submission time limits for the titles to be enforced by free will of the claimant several times and these time limits restart every time the claimant withdraws the titles from the enforcement authority. In fact that situation seems to take the debtor’s assets out of civil turnover for an unlimited period of time thereby restricting the debtor’s right to own them. Such legislative regulation may not be considered as ensuring stability and predictability of civil turnover: it upsets the constitutional balance of the creditor’s and debtor’s interests in enforcement proceedings, creates preconditions for substantial infringement of the debtor’s property rights and hampers the effective judicial protection.

 5. According to the Constitution, the Republic of Belarus shall be bound by the principle of supremacy of law (Article 7.1), the most important components of which are legality, legal certainty, access to justice in independent and impartial courts, respect for human and civil rights and freedoms.

 Everyone’s right to protection by a court, provided for by the Constitution (Article 60.1) is a guarantee for the exercise of other constitutional rights and freedoms and is universal in nature.

 The legislative regulation of the enforcement of enforceable titles shall be carried out on a stable legal basis of balanced regulation of the rights and legitimate interests of all participants in the enforcement proceedings. So, when establishing the legal regulation that entitles the claimant to submit his enforceable documents for enforcement and to withdraw them (request to return), if the recovery has not been performed or has been performed partially, the legislator, in view of constitutional articles 21; 23; 97 and 98, is obliged to proceed from the need to observe the balance of interests of the claimant and the debtor in the enforcement proceedings, and also take into consideration the possibility of their restriction only by law in proportion to constitutionally meaningful goals in the interests of national security, public order, protection of morality, health, rights and freedoms of others.

 In the opinion of the Constitutional Court, the provisions of the Law providing for multiple interruption of submission time limits for the titles to be enforced (if the latter are withdrawn by the claimant and then resubmitted for enforcement) allow for repeated renewal of that period. That points to legal uncertainty in legislative regulation of public relations in the sphere of enforcement proceedings. This uncertainty has a constitutional and legal meaning as the regulation fails to respect the supremacy of the constitutional rules according to which shall be guaranteed the ownership, equal protection of the creditor’s and debtor’s rights by a court, inherent measures for judicial decisions to be properly executed (as an element of judicial protection) and conditions necessary for the above.

 At the same time, the Constitutional Court draws attention to the need to harmonise the enforcement proceedings in the Republic of Belarus with the enforcement proceedings in the Russian Federation in order to establish identical mechanisms of legal regulation for the titles to be enforced within the framework of the Union State of Belarus and Russia, the Eurasian Economic Union.

 According to the Federal Law of the Russian Federation on Enforcement Proceedings if the enforcement of the previously submitted document has been terminated due to the claimant’s request to return it or in view of the claimant’s acts impeding the enforcement, the time from the date of submission of this document for enforcement till the date, the enforcement has been terminated on one of the above grounds, shall be deducted from the corresponding timeframe established by the Federal Law for submission of the title for enforcement.

 The Constitutional Court bases itself on the rules of the Constitution, 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 therewith (Articles 7.1; 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; 59.2). In light of these constitutional rules the Constitutional Court recognises that uncertainty in constitutional and legal regulation should be eliminated as regards the interruption of submission time limits if the enforceable titles, previously submitted for enforcement, have been returned by the enforcement officer to the claimant on his request.

 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, Article 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; 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 principle of the rule of law and to implement the principle of legal certainty, it is necessary to eliminate uncertainty in constitutional and legal regulation as regards the interruption of submission time limits if the enforceable titles, previously submitted for enforcement, have been returned to the claimant on his request.

 2. To suggest to the Council of Ministers of the Republic of Belarus to prepare a draft law on making alterations and (or) addenda to the Law of the Republic of Belarus on Enforcement 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 adoption.

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

Presiding Officer –

Petr Miklashevich,

Chairman of the Constitutional Court

of the Republic of Belarus