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 the Right to Appeal against Disciplinary Action and Relevant Appeal Procedure Provided for the Convicts Placed under Restraint, Subject to Correctional Labour and Other Punishments”.

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 Prosecutor General's Office of the Republic of Belarus – Mr A.K. Stuk, Deputy Prosecutor General of the Republic of Belarus;

of the Ministry of Internal Affairs of the Republic of Belarus – Mr A.P. Barsukov, Deputy Minister of Internal Affairs of the Republic of Belarus

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

The proceedings were initiated by the Constitutional Court on 13 June 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 158.3 of the Law of the Republic of Belarus “On the Constitutional Proceedings” on the basis of the application submitted by Ms O.P. Sadovskaya on ensuring the constitutional right to judicial protection by determining in the legislation of the right to appeal against disciplinary action for violation of the order and conditions of serving the sentence and relevant appeal procedure provided for the convicts placed under restraint.

Having heard the reporting judge S.Y. Danilyuk, 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 Prosecutor General's Office of the Republic of Belarus, the Ministry of Internal Affairs of the Republic of Belarus, the Belarusian Republican Attorneys’ Bar Association, having analysed the provisions of the Constitution, the Criminal Code of the Republic of Belarus (hereinafter – the CC), the Criminal Executive Code of the Republic of Belarus (hereinafter – the CEC), the Civil Procedure Code of the Republic of Belarus (hereinafter – the CPC) and other legislative acts of the Republic of Belarus, having examined the submitted documents and other case materials the Constitutional Court found the following.

1. According to the Constitution the Republic of Belarus is a democratic, social state based on the rule of law (Article 1.1); 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 (Article 21.1); the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution (Article 21.3); all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination (Article 22).

The Constitution stipulates that everyone shall be guaranteed protection of one's rights and liberties by a competent, independent and impartial court of law within time periods specified in law (Article 60.1).

The above-mentioned constitutional principles and rules correspond to the provisions of international legal instruments.

The Universal Declaration of Human Rights proclaims that 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 (Article 8); everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him (Article 10).

The International Covenant on Civil and Political Rights stipulates that in the determination of his rights and obligations in a suit at law everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law (Article 14); each State Party to the present Covenant undertakes to develop remedies (Article 2). According to the General comment no. 32 of the UN Human Rights Committee (Article 14 of the International Covenant on Civil and Political Rights, 2007) the right to equality before the courts and tribunals and to a fair trial is a key element of human rights protection and serves as a procedural means to safeguard the rule of law (para 2).

In accordance with the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), adopted by the UN General Assembly Resolution 45/110 of 14 December 1990, the offender shall be entitled to make a request or complaint to a judicial or other competent independent authority on matters affecting his or her individual rights in the implementation of noncustodial measures (paragraph 3.6).

The European Prison Rules, adopted by the Committee of Ministers of the Council of Europe on 11 January 2006, entitle a prisoner who is found guilty of a disciplinary offence to appeal to a competent and independent higher authority (paragraphs 57.2.e and 61).

In its previous decisions the Constitutional Court noted that the right to protection by a court refers to fundamental human rights that are acknowledged and guaranteed in accordance with the generally recognised principles and rules of international law, and that the Republic of Belarus, as envisaged in Article 8.1 of the Constitution, shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith.

The above constitutional provisions and rules of international legal instruments in conjunction with the requirements of Article 59.1 of the Constitution imply that the State shall take all measures at its disposal to establish the domestic order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus including their protection by a court, provided such protection is fair, competent and efficient.

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 Internal Affairs, the Ministry of Justice and the Belarusian Republican Attorneys’ Bar Association.

The Supreme Court notes that the Law of the Republic of Belarus of 4 January 2012 in Chapter 29 of the CEC introduced paragraph 61 on the specifics of the consideration of complaints of convicts sentenced to arrest, imprisonment, life imprisonment, as well as persons in custody. When appealing against penalties in relation to persons sentenced to a fine, restriction of liberty, correctional or communal work, the specifics of the application of penalties established in the CEC and other legislative acts should be taken into account. At the same time, consolidation in Article 18 of the CEC of the right to appeal against the actions of the administration of the bodies and institutions carrying out the punishment for those sentenced to any type of punishment requires further legislative regulation of the procedure for such an appeal. When improving legal regulation of the protection of the rights of the above-mentioned category of convicts, it is necessary to take into account the peculiarities of serving a certain type of punishment and the procedure for imposing penalties. When recognising the right of convicts to appeal against the sanctions imposed on them, if this is related to the consideration of complaints in civil proceedings, the simultaneous introduction of amendments to the CEC and to the CPC is required.

According to the Prosecutor General's Office, civil procedural legislation does not establish a special procedure for the court to consider complaints of persons sentenced to restriction of liberty, correctional work, fines, public works. At the same time, according to 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. The criminal executive legislation of the Republic of Belarus is based, among other things, on the principles of legality, humanism, equality of convicted persons before the law (Article 6 of the CEC). In order to regulate the procedure for consideration by the court of complaints of prisoners sentenced to restriction of liberty, correctional works, fines, public works against the actions of the administration of bodies and institutions carrying out the punishment and other criminal liability measures in connection with the application of punitive measures to these convicts, it is necessary to make appropriate alterations and addenda to the CPC and the CEC.

The Ministry of Internal Affairs points out that para 61 of Chapter 29 of the CPC defines the peculiarities of consideration and resolution of complaints of persons convicted to arrest, imprisonment, life imprisonment, persons in custody, against disciplinary measures imposed on them. Certain features of consideration and resolution of complaints of persons convicted to restriction of liberty, correctional works, fines, public works are not provided for in the CPC and other legislative acts. Thus, there are legal uncertainties in the CEC and CPC rules related to the right of convicts sentenced to restriction of liberty, correctional works, fines, public works against penalties and (or) warnings imposed to appeal in civil procedure. In this regard, it is advisable to make appropriate alterations and addenda to the CEC.

In the opinion of the Ministry of Justice, the Special Section of the CEC contains the rules regulating the right of persons convicted to arrest, deprivation of liberty, life imprisonment and procedure for appealing against sanctions imposed on them (Articles 61.14, 113.11 of the CEC). However, with regard to those sentenced to such types of punishment as correctional works, restriction of liberty, public works and fines, the right to appeal against the decision of the official to impose penalties has not been provided in the Special Section of the CEC. Taking into account the aforementioned, it is stated that the approaches provided for by the CEC in terms of the legal regulation of appeals by persons convicted against disciplinary measures imposed on them are not identical depending on the type of punishment. It should be noted that the Criminal Executive Code and the Civil Procedure Code (hereinafter – the CPC) provide the right to appeal against disciplinary action and appeal procedure for persons convicted to detention, imprisonment and life imprisonment (article 61.14, article 113.11 of the CEC, paragraph 6.1 of Chapter 29 of the CPC). However, the convicts placed under restraint, subject to correctional labour and other punishments are not entitled to appeal against the disciplinary action taken by an official.

The Belarusian Republican Attorneys’ Bar Association believes that the CEC rules contain legal uncertainty related to the right of convicts sentenced to restriction of liberty, correctional works, fines, public works to appeal against disciplinary measures imposed on them. In order to ensure the rule of law and legal certainty in the current legal regulation, alterations and addenda should be made to the CEC.

3. From the constitutional provisions stipulating that 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 (Article 21.3) and that everyone shall be guaranteed protection of one's rights and liberties (Article 60.1) in conjunction with the provision, according to which restriction of personal rights and freedoms shall be permitted only in the instances specified in law, in the interests of national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons (Article 23.1), it follows that the state shall establish an effective mechanism for the observance and implementation in the legislation of the principle of the rule of law and its most important element – accessibility of justice, expressed in the possibility provided by law for everyone to freely apply to a competent, independent and impartial court to defend one’s violated rights and get such protection.

According to the CC, criminal liability is expressed in the conviction on behalf of the Republic of Belarus by the court’s verdict of the person who committed the crime, and the application of criminal responsibility on the basis of a conviction or other criminal liability measures in accordance with this Code; criminal liability is aimed at correcting the person who committed the crime and preventing the commission of new crimes by convicted persons and others (Articles 44.1 and 44.2 of the CC); punishment is a compulsory measure of criminal law pressure imposed by a court sentence on a person convicted of a crime and consisting in the deprivation or restriction of the rights and freedoms of a convicted person provided for by law (Article 47 of the CC).

Comprehensive regulation of the enforcement of penalties established by the CC is ensured by the CEC rules.

In accordance with Article 7.3 of the CEC, one of the main means of achieving the goals of criminal responsibility in the process of its application is the established procedure for the execution and serving of sentences.

The rules of Article 8 of the CEC envisage that the State shall guarantee the protection of the rights, freedoms and legitimate interests of the convicts, shall provide the conditions as prescribed by law for the punishments and other criminal penalties in respect of those persons, shall ensure social justice as well as their social, legal and other security (Article 8.1); in the execution of punishment and other measures of criminal responsibility, persons convicted shall be guaranteed the rights and freedoms of citizens of the Republic of Belarus with restrictions established by the criminal, criminal executive and other legislation of the Republic of Belarus (Article 8.2); convicts may not be released from the performance of their civil duties, except in cases specified by law; the rights and obligations of convicts, as well as their limitations, shall be determined on the basis of the procedure and conditions for the execution and serving of sentences and other criminal liability measures (Article 8.4).

This legal regulation is consistent with Article 23.1 of the Constitution, which establishes that restriction of personal rights and freedoms shall be permitted only in the instances specified in law, in the interests of national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons.

Main duties and rights of the convicts are enshrined in Articles 9 and 10 of the CEC. In case of failure to perform the duties imposed the convicted persons may be taken disciplinary action against or given an official warning (Article 9.4 of the CEC).

The application of penalties implies, among other things, a certain moral and psychological impact, and in some cases limits the physical freedom of the convicted person, provides for additional exemptions from rights and freedoms, as well as other significant legal consequences of the imposed penalty.

Thus, according to Article 55.2 of the CEC, the following penalties can be applied to convicts sentenced to imprisonment, who are sent to an open-type correctional institution, but violate the procedure and conditions of serving the sentence: additional duty on cleaning and improvement of the area of an open-type correctional institution; reprimand; disciplinary isolation for up to ten days with or without going to work (study).

The following penalties can be applied to those sentenced to imprisonment without being sent to an open-type correctional institution who violate the procedure and conditions of serving the sentence: reprimand; deprivation of the permission granted by way of encouragement to leave home on weekends, public holidays and festive days established and declared non-working by the President of the Republic of Belarus; disciplinary isolation for up to fifteen days with or without returning to work (study) (Article 55.3 of the CEC).

In accordance with Article 55.5 of the CEC, a convicted person is considered to be maliciously violating the procedure and conditions of serving the sentence if he has at least three penalties for violating the procedure and conditions of serving the sentence. A convicted person, who committed a malicious violation of the procedure and conditions of serving the sentence, shall be issued an official warning of criminal liability for evading the serving of the sentence in the form of restriction of freedom.

According to Articles 43.2 and 43.3 of the CEC the following penalties can be imposed by the criminal executive inspectorate on convicts sentenced to correctional labour for the violation of the procedure and conditions of serving the sentence: reprimand; compulsory appearance at least twice a month before the penitentiary inspection for registration for a period of up to three months. Simultaneously with the imposition of a penalty, the penitentiary inspection shall impose on the convicted person an official warning of criminal responsibility for malicious evasion of serving a sentence in the form of correctional labour.

The main purpose of the official warning is to inform the convicted person of the criminal consequences of further non-fulfillment of the duties assigned to him. Convicted persons who continue, after the issuance of an official warning, to evade from the fulfillment of the duties established by the criminal-executive legislation, shall be held criminally liable under criminal law.

The Constitutional Court notes that the penalties imposed as a result of violations of the rules regulating relations between convicts and officials of bodies and institutions that execute punishments and other measures of criminal liability are of significant prejudicial importance in deciding whether to initiate criminal proceedings and bring convicts to criminal liability. In this regard, in order to prevent violation of the rights and freedoms of the individuals guaranteed by the Constitution, it is important to have an effective legislative mechanism ensuring timely verification of the legality and validity of the sanctions imposed on convicts. The Constitutional Court notes that the disciplinary action imposed on the convicts are of vital prejudicial importance for deciding whether to initiate criminal proceedings and charge those persons with a criminal offence. In this regard, in order to prevent violations of the rights and freedoms of the individual guaranteed by the Constitution, it is essential to establish an effective legislative mechanism for ensuring timely review of whether the action imposed on the convicts are lawful and well founded.

4. In accordance with Articles 10.5 and 10.10 of the CEC, convicts, including foreign citizens and stateless persons, shall have the right to give explanations, to correspond, to submit to the administration of the body or institution that executes punishment and other criminal liability measures, the court, the prosecutor’s office proposals, applications and complaints; the procedure for the exercise of the rights of convicts is established by this Code and other legislative acts of the Republic of Belarus.

The above provisions correspond to Article 18.5 of the CEC, according to which, in accordance with the procedure established by law, the court shall consider complaints against the actions of the administration of bodies and institutions executing punishment and other criminal liability measures, as well as to Article 353.1 of the CPC enshrining the individual’s right to submit a complaint to the court, if he considers that unlawful actions (inaction) of state bodies, other legal entities, as well as organisations that are not legal entities, and officials have infringed upon his rights, except for cases when a different, non-judicial, appeal procedure is established by the legislation of the Republic of Belarus to resolve certain complaints.

Along with the foregoing, in accordance with Article 35.2 of the Law of the Republic of Belarus “On the Prosecutor’s Office of the Republic of Belarus”, when establishing violations of the law, depending on their nature, the prosecutor shall have the right to abolish penalties imposed in violation of the law, including on persons held in custody and in medical and labour dispensaries, serving a sentence in form of arrest, restriction of freedom, imprisonment, life imprisonment.

Legislation providing for the right of convicts to appeal in court against the actions of the administration of bodies and institutions executing punishment and other criminal liability measures, along with the right of the prosecutor to abolish in some cases penalties imposed on convicts serving a sentence in form of restriction of liberty, causes controversial practice of understanding and application of the relevant legislation when persons sentenced to certain types of punishment submit their complaints against the penalties imposed on them to the court.

This circumstance is confirmed by the application submitted by Ms O.P. Sadovskaya who was sentenced to restriction of freedom. The applicant pointed out that the court terminated the civil proceedings on her complaint against the decision of the head of the Molodechno District Department of Internal Affairs to reprimand her for violating the established procedure for serving the sentence, justifying such a decision by the existence of a different procedure for resolving this complaint

The foregoing shows legal uncertainty in the legislative regulation of public relations concerning appeal by the convicted persons against the punishment measures imposed on them.

5. 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” it is noted that one of the most important components of the rule of law is accessibility of justice, expressed in guaranteeing everyone the right to judicial protection by a competent, independent and impartial court.

In the Judgment of 12 June 2014 “On the Conformity of Article 29.1.7 and Article 303.1.1 of the Criminal Procedure Code of the Republic of Belarus to the Constitution of the Republic of Belarus” the Constitutional Court noted that the right to judicial protection, enshrined in Article 60 of the Constitution, implies the existence of specific legal mechanisms for effective restoration of rights. From the analysis of the content of this Article with its interconnection with Articles 6, 109.1 and 115.1 of the Constitution, on the independence of the judicial power that belongs to courts, on the administration of justice on the basis of the adversarial proceedings and equality of the parties involved in the trial, it follows that the constitutional right to judicial protection is the right not only to go to court, but also to receive real protection as a result of the exercise of judicial power through certain types of legal proceedings.

Analysing the constitutional and legal content of disciplinary measures imposed on convicts, the Constitutional Court in its decision of 27 May 2010 “On the Right of the Persons Convicted to Arrest, Confinement, Life Imprisonment, Persons under Detention and Persons under Administrative Arrest to Appeal against Penalties Imposed on Them” noted that the penalties imposed on persons convicted to arrest, confinement, life imprisonment, persons under detention and persons under administrative arrest for violation of regime should be considered as a disciplinary measure, the peculiarity of which in this case lies in the fact that it arises from administrative legal relations between persons actually deprived of their liberty and authorised officials ensuring the regime of serving a sentence, administrative arrest or detention.

In this regard, the Constitutional Court concluded that, on the basis of Article 60 of the Constitution in conjunction with Articles 61.3, 113.11, 173.7 of the CEC, Article 18.11.6 of the Procedural Executive Code of the Republic of Belarus on Administrative Offenses, Article 34.5 of the Law of the Republic of Belarus “On the Procedure and Conditions of Detention of Persons”, providing for the right of persons sentenced to arrest, deprivation of liberty, life imprisonment, persons in custody and under administrative detention to appeal against the imposed penalties, Chapter 29 of the CPC shall be supplemented by the provisions determining the procedure and features of consideration of complaints of this category of persons in courts, taking into account their legal status.

This decision of the Constitutional Court was executed by means of the Law of the Republic of Belarus of 4 January 2012 “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus” supplementing Chapter 29 of the CPC, regulating the proceedings arising from administrative legal relations, by para 61 “Features of Consideration and Resolution of Complaints of Convicts Sentenced to Arrest, Deprivation of liberty, Life Imprisonment, Persons held in Custody against Punishment Measures Imposed on Them and Complaints of Persons under Administrative Detention against Disciplinary Measures Imposed on Them”.

The Constitutional Court reaffirms its legal position, as set out in the decision of 27 May 2010, and notes that legal relations arising from the application of penalties against those sentenced to restriction of liberty, correctional work and other types of punishment also arise from administrative legal relations between these categories of convicted persons and authorised persons ensuring the regime of serving the sentence. However, in Chapter 29 of the CPC, which regulates proceedings in cases arising from administrative legal relations, there are no rules determining the procedure for the court to consider complaints of persons sentenced to the specified types of punishment against application of punishment measures to them.

The Constitutional Court considers that a lack in the CEC and the CPC of the provisions, ensuring the right to appeal against disciplinary action and relevant appeal procedure provided for the convicts placed under restraint, subject to correctional labour and other punishments, violates the constitutional guarantees of judicial protection of the individual rights and keeps the convicts from protecting their rights and freedoms in a proper way and therefore fails to ensure timely and efficient restoration of the violated rights.

6. A number of decisions of the Constitutional Court contain legal positions aimed at elimination of collisions, gaps and legal uncertainty in legislative acts, formation of a legal system in which normative legal acts are interrelated and consistent and where clarity, accuracy and logical consistency of legal norms are ensured. Strict observance by the legislator of the principle of legal certainty contributes to the legal security and predictability of legal regulation, enhances guarantees of state protection of the constitutional rights and freedoms of individuals and serves as an important tool for maintaining individuals' confidence in state power and its institutions.

The level of protection guaranteed by a court for the convicts placed under restraint, subject to correctional labour and other punishments in case they allege their rights and legitimate interests have been violated by disciplinary action imposed by the officials of the authorities executing punishment and other measures of criminal responsibility, seems to be lower than the protection of those convicts whose right to appeal against such action is stipulated in law. That fact appears to be neither fair nor consistent with the provisions of Article 22 of the Constitution guaranteeing everyone’s equality before the law and everyone’s right to equal protection of their rights and legitimate interests without any discrimination.

Following the constitutional rules under 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 (Article 7.1 and Article 7.2); State bodies, officials and other persons who have been entrusted to exercise state functions shall, within their competence, take necessary measures to implement and protect personal rights and freedoms (Articles 59.1 and 59.2), the Constitutional Court recognised the need to eliminate legal uncertainty in constitutional and legal regulation of the right of convicts to appeal against disciplinary action imposed on them and the relevant appeal procedure.

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. With a view to respect everyone’s constitutional right to protection by a court, to ensure the rule of law and legal certainty in current legal regulation, to recognise the need to amend the Criminal Executive Code and the Civil Procedure Code of the Republic of Belarus by entitling the convicts placed under restraint, subject to correctional labour and other punishments to appeal in civil proceedings against disciplinary action imposed on them.

2. To suggest to the Council of Ministers of the Republic of Belarus to draft a law on making alterations and addenda to the Criminal Executive Code of the Republic of Belarus and the Civil Procedure Code of the Republic of Belarus 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