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 open court session considered the case “On the Right to Judicial Remedy for the Persons Whose Interests are Affected by the Court Order Procedure”.

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 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.M.Lashin, Deputy Prosecutor General of the Republic of Belarus;

of the Belarusian Republican Attorneys’ Bar Association – T.V.Matusevich, Deputy Chairman of the Belarusian Republican Attorneys’ Bar Association.

The proceedings were initiated by the Constitutional Court ruling of 7 February 2018 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, Articles 158.1 and 158.4 of the Law of the Republic of Belarus on the Constitutional Proceedings on the basis of the application by the Belarusian Republican Bar Association. The applicant alleged there is a legal gap in legislation of the Republic of Belarus on civil and economic procedure as regards summary procedure for a court order (the court order procedure). The current legislation does not provide judicial remedy for the persons other than the claimant or the defendant, whose legitimate interests may be affected by the court order.

 The applicant points out that in law enforcement practice general courts within the framework of the court order procedure make an order without a full and thorough examination of the case, while there is an issue in law and a wide range of persons concerned who had to participate in the case and state their position. However, these persons, whose rights and legitimate interests are affected by the court order, are deprived of the possibility of judicial protection of their rights and legitimate interests due to the lack of legal rules providing for such a right in the legislation on civil and economic procedure.

Having heard the reporting judge V.N. Ryabtsev, 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 Belarusian Republican Attorneys’ Bar Association, having analysed the provisions of the Constitution, the Civil Procedure Code (hereinafter – the CPC) and the Economic Procedure Code (hereinafter – the EPC) 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. The Constitution stipulates 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 the 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 the laws, and specified by the State's international obligations (Articles 21.1 and 21.3).

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).

Article 8 of the Universal Declaration of Human Rights 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 enshrines that each State Party to the Covenant undertakes to ensure that any person whose rights or freedoms are violated shall have an effective remedy and to develop the possibilities of judicial remedy (Articles 2.3.a and 2.3.b).

In its decisions the Constitutional Court has repeatedly stated that free and unhindered access to justice as enshrined in international legal instruments is an advance of modern civilisation, an integral part of the fundamental constitutional right of individuals and legal entities to protection by a court.

According to 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.

According to the abovementioned constitutional provisions and rules of international legal acts in conjunction with Article 59.1 of the Constitution the State shall take all measures at its disposal to ensure the exercise of the rights and freedoms of individuals, including their protection by a court provided it shall be fair, competent and effective.

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 and the Belarusian Republican Attorneys’ Bar Association.

In the Supreme Court's reply, it is pointed out that the possibility of satisfying the objections against the action by the claimant or the application with a justified demand to revoke the court order or to revoke it in the part of other interested persons whose rights and legitimate interests may be affected by the court order would contradict the very nature of the summary procedure for a court order and testify that the applicant's claims are not indisputable.

In the opinion of the Supreme Court, the court order that may affect the rights and obligations of third parties does not impede the protection of these rights and legitimate interests by these persons in the proceedings for recourse actions. In addition, persons whose rights or legally protected interests are violated may appeal against the court order in the exercise of supervisory powers in accordance with Article 437.2 of the CPC. In this regard, the legal regulation of the summary procedure in the issue under discussion is sufficient and does not require any changes in the procedural legislation.

The General Prosecutor's Office believes that the legislator set forth the list of the claimant’s demands subject to consideration in the summary procedure which was introduced into the civil and economic proceedings in order to simplify the procedure for collecting the debtor’s property or assets under obligations that are unquestionably confirmed by documents submitted by the claimant to the court. Persons whose interests may be affected by the court order can protect their rights in action proceedings. According to the General Prosecutor's Office, in civil and economic proceedings there is no gap in legal regulation concerning the right to judicial protection for the persons other than the claimant or the defendant, whose rights and obligations may be affected by the court order. So, there is no need to amend the CPC and EPC on this issue.

The Ministry of Justice notes that the summary procedure for a court order is a simplified documentary process that does not provide for a court hearing and summoning the parties (the claimant and the debtor) to a hearing. The court considers the claims based on evidence submitted by the parties or one party and in the absence of the reasoned objections of the other party makes a ruling. The court can only accept the argumented objections of the debtor and on this basis refuse the claimant to make a ruling. Taking into account the legal nature of the summary procedure for a court order and other provisions of civil and economic legal proceedings, the Ministry of Justice believes that the persons concerned have legitimate grounds to exercise their constitutional right to judicial protection in the course of the action proceedings.

At the same time, the Ministry of Justice points out that the analysis of the legislation does not allow to make an unambiguous conclusion on the gap in legal regulation with regard to ensuring the right to judicial protection of other persons whose rights and legitimate interests may be affected by the court order.

The National Centre of Legislation and Legal Research of the Republic of Belarus notes that, in accordance with the legislation on civil procedure and on economic procedure, third parties are not considered as participants in the summary procedure for a court order, and therefore there is no mechanism for protecting their rights and legitimate interests in this procedure. At the same time, the CPC and the EPC provide judicial remedies for protecting the rights and legitimate interests of third parties in civil and economic proceedings. Thus, the judge, the court considering economic matters, are obliged to refuse the application on initiation of the summary procedure for a court order if there is an issue in law which can not be settled on the basis of the submitted documents. In addition, the provisions of the CPC and of the EPC provide for the possibility of filing a supervisory review application by persons whose rights or legitimate interests are violated by the judicial ruling rendered in the present case.

The Belarusian Republican Attorneys’ Bar Association considers that there is a legal gap in legislation on civil and economic procedure as regards summary procedure for a court order. The current legislation does not provide judicial remedy for the persons in the summary procedure other than the claimant or the defendant, whose legitimate interests may be affected by the court order

At the same time, the Belarusian Republican Attorneys’ Bar Association notes that a court order may affect directly or indirectly the rights and interests of not only the claimant and the debtor, but also of other persons who are not party to the summary procedure. For example, an interested person may, along with the claimant or the debtor, claim the debtor’s property, the transfer of which to the claimant is set in the summary procedure. Recovery of money from the debtor may affect the interests of other creditors of the debtor or its founders (participants). Procedural legislation does not contain any mechanisms for interested persons to counteract an evident unfair collusion between the claimant and the debtor, when, for example, the debtor in the summary procedure deliberately acknowledges clearly overstated or unreasonable demands of one of the claimants in order to ensure the transfer of a significant sum of money or the transfer of the bulk of property or of the whole property to this claimant, thus making it difficult or making it impossible to satisfy the demands of other claimants.

The court orders issued by general courts of jurisdiction that affect the rights and legitimate interests of other persons are not single in law enforcement practice, while in the opinion of the Belarusian Republican Attorneys’ Bar Association, such persons are deprived of the right to judicial settlement of a legal problem in compliance with the guarantees of legal proceedings specified in the Constitution.

3. In accordance with Articles 109.1-3, 110.1, 112.1 of the Constitution and with the provisions of Articles 2, 5 and 7 of the Code on Judicial System and Status of Judges, the courts shall exercise judicial power in the Republic of Belarus; the judicial system shall be based upon the principles of territorial delineation and specialisation; the judicial system in the Republic of Belarus shall be determined by the law; in administering justice judges shall be independent and subordinate to law alone; the courts shall administer justice on the basis of the Constitution and other normative legal acts adopted in accordance therewith.

According to the Code on Judicial System and Status of Judges, the judicial system of the Republic of Belarus includes, among other courts, general courts that administer justice through civil, criminal, administrative proceedings and legal proceedings on economic matters (Article 5.1.3); the system of general courts consists of district (city) courts, regional (Minsk City) courts, regional (Minsk City) economic courts, the Supreme Court of the Republic of Belarus (Article 28.1).

Proceedings on civil and economic matters are regulated respectively by the CPC and the EPC, that are aimed at ensuring the proper and timely consideration of cases by courts, protection of rights and legitimate interests of individuals, legal entities, individual entrepreneurs, strengthening the rule of law and the prevention of infractions in the field of entrepreneurial and other economic activity (Article 5 of the CPC, Article 4 of the EPC).

The summary procedure for a court order is a particular type of proceedings on civil and economic matters (Article 8 of the CPC, Article 1.19 of the EPC). The procedural arrangements for consideration in general courts of summary applications for a court order are specified in the provisions of the CPC and the EPC (Chapter 31 of the CPC, Chapter 24 of the EPC).

In accordance with Articles 394.1 and 394.2 of the CPC, the summary procedure for a court order is a type of proceedings upon an application for recovery of a sum of money or recovery of movable property from a debtor without holding a court hearing and summoning the parties to a hearing in the cases specified in this article with a court order made by the judge.

According to Article 220 of the EPC, under the summary procedure a court considering economic matters issues a court order without holding a court hearing and summoning the parties to a hearing upon the application by a claimant (Article 220.1); summary procedure includes consideration of claims for recovery of funds, recovery of property or execution upon the debtor’s property that are uncontested (founded on supporting documents) or recognised (not opposed) by the defendant, but not satisfied (Article 220.2).

The court order is a type of court decision (Article 1.22 of the CPC, Articles 1.16, 9.2 and 9.4 of the EPC) and at the same time as an executive document; it shall be executed in accordance with the procedure established for the execution of court decisions (Article 394.3 of the CPC, Article 220.4 of the EPC, Article 10.1.3 of the Law of the Republic of Belarus “On Enforcement Proceedings”).

When determining the conditions and procedure for initiating the summary procedure, the legislator provides the grounds for the refusal to accept an application to initiate the summary procedure at the stage of submitting such an application by a judge (a court). Thus, a judge (a court) shall refuse to accept an application for initiating the summary procedure if there is an issue in law that cannot be settled on the basis of submitted documents (Articles 396.1 and 396.2.4 of the CPC, Article 222.1.5 of the EPC).

In case of disagreement with the claims filed by the claimant, the debtor is granted the right to protect his rights and legitimate interests by sending to the court an objection against the stated claim using any means of communication (Article 398.3 of the CPC), as well as by submitting to a court considering economic matters a well-founded application on abolition of the court order in whole or in part if it was not possible for him for valid reasons to state his objections against the claimant’s application (Article 226.1 of the EPC). In these cases, the judge (the court) shall recall the court order.

At the same time, the possibility of judicial protection of other persons whose rights and legitimate interests may be affected by the court order is not established in the CPC nor in the EPC, that limits the constitutional right of such persons to judicial protection.

The Constitutional Court took into consideration that procedural legislation on civil and economic matters fails to regulate the relations with respect to judicial remedy for persons whose rights and legitimate interests may be affected by the court order issued in summary procedure. So, the Constitutional Court identified a legal gap in legal regulation of these relations.

The Constitutional Court pays attention to legal regulation of similar relations in the sphere of summary procedure in the legislation of the member states of the Eurasian Economic Union – the Republic of Kazakhstan and the Russian Federation. Thus, in accordance with the Civil Procedure Code of the Republic of Kazakhstan, the judge cancels the court order if the debtor brings objections against the submitted claim within an established period, or if another person whose rights and duties are affected by the court order, submits an application on incompatibility of the court order with law (Article 142.1).

4. The Constitution stipulates 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); the State shall guarantee everyone the right of property and shall contribute to its acquisition; a proprietor shall have the right to possess, enjoy and dispose of assets either individually or jointly with others; the inviolability of property and the right to inherit property shall be protected by law (Articles 44.1-3, Article 60.1).

It follows from the legal positions of the Constitutional Court formulated in the Decision of 14 February 2018 “On Legal Regulation of the Calculation of Time Limits for Submission of an Executive Document for Execution” that the right of ownership and other proprietary rights shall be protected on the basis of proportionality for ensuring the balance of the rights and legitimate interests of all participants of civil circulation – owners, creditors, debtors; the generally recognised principles of inviolability of property and freedom of contract that presuppose equality, autonomy of will and property independence of participants in civil legal relations, inadmissibility of arbitrary interference in private affairs, determine the freedom to possess, enjoy and dispose of property, including the possibility to transfer their property to others. to assign, remaining the owner, the right possess, enjoy and dispose of property, and at the same time the need to bring property rights into correlation with the rights and freedoms of others.

According to the Constitution the exercise of the right of property shall infringe upon the rights and legally protected interests of others (Article 44.6), therefore, the legislator, having established the possibility of judicial protection of the rights of the claimant and the debtor in the summary procedure, without providing other interested parties with equal protection of their rights and legitimate interests that may be violated by the court order, shall assume in the process of further improvement of the legislation that the legitimate interests of all participants of civil circulation shall meet adequate (proportional) protection on the basis of the balance of the constitutional values.

When revealing the constitutional content of the right to property protection, the Constitutional Court in its decision of 14 February 2018 noted that the legislator shall ensure legal certainty, stability and predictability in the sphere of civil circulation, maintaining the highest possible level of mutual trust between legal entities and creating necessary conditions for effective protection of the right of ownership and other proprietary rights.

The court orders issued by general courts within the framework of the summary procedure with prescriptions for the recovery of funds in favour of the applicant, for the recovery of movable property, for the recovery of the debtor’s property or for execution upon the debtor’s property (Articles 394.1 and 394.2 of the CPC, 220.1 and 220.2 of the EPC), give rise to the substantive rights and procedural obligations of participants in the summary procedure and may also affect the rights and legitimate interests of others interested parties in the outcome of the case. The lack of judicial remedies for such persons in order to protect their rights and legitimate interests in the summary procedure, in contrast to the claimant and the debtor, does not fully ensure the stability and predictability of civil circulation, leads to infringement of the rights of others, hinders their effective protection, may result in causing material damage to these persons.

5. According to the Constitution shall be bound by the rule of law principle.

As it was noted in the Message of the Constitutional Court to the President of the Republic of Belarus and the Houses of the National Assembly of the Republic of Belarus “On Constitutional Legality in the Republic of Belarus in 2016”, one of the key element of the rule of law is the accessibility of justice consisting in everyone’s guarantees of the right to protection by a competent, independent and impartial court.

Everyone’s right to be protected by a court as envisaged in Article 60.1 of the Constitution is universal and provides a guarantee for the exercise of all the other constitutional rights and freedoms.

The constitutional right to protection by a court in conjunction with the principle of the administration of justice on the basis of the adversarial proceedings and equality of the parties to the trial (Article 115.1 of the Constitution) is aimed at ensuring by the State of real judicial remedy through restoration of violated rights and freedoms. Another approach will not meet the universal requirement of effective restoration of rights through fair trial and restricts the right to protection by a court, bearing in mind that such requirement is inherent to all the types of proceedings including summary procedure for a court order. The said constitutional principles shall apply not only to the claimant and the defendant but also to other persons whose rights and legitimate interests may be affected by a court order that was issued in summary procedure.

Thus, if the court order affects the rights and legitimate interests of others, imposes certain duties upon them, then by virtue of the principle of adversarial proceedings and equality of the parties to the trial, those persons shall be provided with procedural guarantees to protect their rights and legitimate interests in summary procedure for the court order. Those guarantees shall be equal with the debtor’s ones as only under this condition will be realised the right to fair, complete and effective protection by a court within the meaning of Article 60.1 of the Constitution.

In the opinion of the Constitutional Court the fact, that those persons are not entitled to procedural means and ways to protect their rights and legitimate interests in summary procedure for a court order, restricts heavily their constitutional right to protection by a court. It neither conforms to the principles of civil proceedings and legal proceedings on economic matters, nor ensures a fair court ruling. In that context the summary procedure at hand should not be considered as an effective remedy.

In accordance with the principle of dispositiveness inherent in civil proceedings and economic proceedings, civil procedural and economic procedural legal relations arise, change and terminate mainly at the initiative of persons involved in the case, who have the opportunity, through the court, to dispose of procedural rights and controversial substantive law, without violating the rights and legally protected interests of other persons and the State (Article 18.1 of the CPC, Article 23.1 of the EPC).

This principle also applies to the summary procedure, in which the debtor decides at his own discretion, whether to exercise his right to submit objections against the claim to the court (Article 398.3 of the CPC) or to submit an application on the abolition of the court order to the court considering economic matters (Article 226.1 of the EPC) or not.

Normative legal regulation under which the possibility of a court to initiate the procedure for abolition of the court order in summary procedure depends by virtue of the principle of dispositiveness only on the discretion of the debtor, according to the Constitutional Court, does not ensure the supremacy of the constitutional provisions, that guarantee everyone the right to judicial protection, and does not allow other interested persons, whose rights and interests may be affected by the said court order, to protect their rights and legitimate interests in due manner, does not contribute to the timely and effective restoration of the infringed rights.

In the legal system of the Republic of Belarus the review of court decisions under the procedure of supervision in civil proceedings and economic proceedings implies the generally recognised possibility in a state based on the rule of law in cases of breach of the rules of material and (or) procedural law to revise court decisions that have entered into legal force, including complaints of persons whose rights or legally protected interests are affected by a court ruling on the case (Article 437.2.2 of the CPC, Article 303.1 of the EPC).

When revealing the constitutional and legal nature of the proceedings for revising judicial decisions that have entered into legal force under the supervisory procedure, the Constitutional Court considers that reviewing such judicial decisions under the supervisory procedure is possible only as an additional guarantee of their legality and implies the establishment of specific grounds and procedures at this stage of the process that are appropriate to its legal nature and purpose.

In the opinion of the Constitutional Court, the right to file a supervisory complaint by a person whose rights and interests are affected by the court order is not sufficient in all cases to ensure real protection of the violated rights, since after the execution of the court order, that has entered into legal force, some obstacles of factual or legal nature may arise, and these obstacles may exclude the possibility of restoring the original, including in respect of property, position of a person whose rights and interests protected by law have been affected by the court order.

Therefore, current legal regulation of the summary procedure for a court order should not be recognised sufficient to ensure complete and effective protection of everyone’s rights and freedoms by a court, being a necessary element of the constitutional and legal regime based on the principles of the supremacy of law and the state ruled by law. The level of judicial remedies for persons whose rights and legitimate interests may be affected by the court order as compared to the level of guarantees for those who are entitled by the law to apply for reversal of such court orders should not be found fair and proportionate to the constitutionally protected interests.

Based on the Constitution, in order to ensure the constitutional principle of the rule of law, implying the need for timely elimination of legal gaps, collisions and legal uncertainty in normative legal acts, creation of the legal system that ensures systemic interconnection of normative legal acts and clarity, accuracy, coherence and logical consistency of legal rules, the Constitutional Court considers it necessary to eliminate the gap in constitutional and legal regulation of summary procedure as concerns ensuring the right to judicial remedy for persons involved in summary procedure for a court order, other than claimant or debtor, whose rights and lawful interests are affected by the court order.

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 rule of law principle, with a view to respect the constitutional right to protection by a court to recognise the need to eliminate the gap in constitutional and legal regulation and ensure the right to judicial remedy for persons involved in summary procedure for a court order, whose rights and legitimate interests are affected by the court order, by making relevant alterations to the Civil Procedure Code and Economic Procedure Code of the Republic of Belarus.

2. To suggest to the Council of Ministers of the Republic of Belarus to prepare a draft law on making alterations to procedural legislation of the Republic of Belarus on civil and economic matters regulating summary procedure, 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