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 accordance with Article 116.1 of the Constitution of the Republic of Belarus (hereinafter – the Constitution), Article 22.3.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Article 98 and Article 101.1 of the Law of the Republic of Belarus “On the Constitutional Proceedings”

in open court session considered the case on constitutionality of the Law “On Normative Legal Acts” in the exercise of obligatory preliminary review.

Having heard the reporting judge V.V. Podgrusha, having analysed the provisions of the Constitution, the Budget Code of the Republic of Belarus, the Law of the Republic of Belarus «On Normative Legal Acts» and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following.

The Law of the Republic of Belarus “On Normative Legal Acts” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 27 June 2018 and approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 29 June 2018 and submitted to the President of the Republic of Belarus for signing.

Adoption of the Law is conditioned by the need to improve legal regulation of preparation and adoption (enactment) of normative legal acts, systematization of the provisions of a number of legislative acts regulating law-making, as well as elimination of gaps and other shortcomings in the legislative regulation when applying the Law of the Republic of Belarus of 10 January 2000 “On Normative Legal Acts of the Republic of Belarus” (hereinafter – the Law on Normative Legal Acts).

The law determines the system and types of normative legal acts adopted (issued) by the law-making bodies (officials), the procedure for their preparation, including requirements related to the rule-making technique, examination, adoption (enactment), publication, entry into force, operation, interpretation and systematization; other issues of law-making are also regulated.

Article 1.2 of the Law establishes that this Law shall not apply to acts of the Constitutional Court of the Republic of Belarus, the Supreme Court of the Republic of Belarus, non-regulatory (individual) legal acts, local legal acts of law-making bodies (officials), international treaties of the Republic of Belarus and other legal acts containing obligations of the Republic of Belarus, unless otherwise provided by this Law, as well as to technical regulatory legal acts in the field of technical regulation and standardisation concerning issues regulated by the legislation on technical regulation and standardisation.

1. The Constitutional Court, within the exercise of preliminary obligatory review of the constitutionality of laws, carries out examination of the provisions of the Law proceeding from the supremacy and direct effect of the constitutional rules, taking into account:

consistent and effective exercise by the Republic of Belarus of its functions as a sovereign state safeguarding lawfulness and law and order (Articles 1.2 and 1.3 of the Constitution);

constitutional rules on the obligation of the legislator, when regulating social relations, to observe the fundamental principles of a state based on the rule of law enshrined in the Constitution, first of all, the principle of supremacy of law, according to which 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 and 7.2); the principle of exercising state power on the basis of its separation into legislative, executive, and judicial powers (Article 6); recognition by the Republic of Belarus of the supremacy of the generally recognised principles of international law (Article 8.1); regulation of issues related to decision-making by referendum (popular vote) (Articles 73–78), rule-making powers of the President of the Republic of Belarus (Articles 79, 84, 85, 101), legislative powers of the National Assembly of the Republic of Belarus (Articles 90, 97–101, 104), rule-making activities of the Council of Ministers of the Republic of Belarus (Articles 107 and 108), local Councils of Deputies, executive and administrative bodies (Article 122); establishment of the constitutional review of normative legal acts in the Republic of Belarus (Article 116), monitoring and supervision over the implementation of laws and by-laws (Articles 125, 129);

constitutional provisions establishing the hierarchy of normative legal acts, by virtue of which the Constitution shall have the supreme legal force; laws, decrees, edicts and other instruments of state bodies shall be promulgated on the basis of, and in accordance with the Constitution; where there is a discrepancy between a law, decree or edict and the Constitution, the Constitution shall apply; where there is a discrepancy between a decree or edict and a law, the law shall apply when the powers for the promulgation of the decree or edict were provided by the law (Article 137);

constitutional provisions stipulating that legal acts or specific provisions thereof which have been recognised under the procedure specified by law as contradicting the provisions of the Constitution shall have no legal force; normative acts of state bodies shall be published or promulgated by other means specified by law (Articles 7.3 and 7.4).

The above-mentioned constitutional principles and rules and other constitutional principles and rules are developed in the provisions of the Law, thereby ensuring the direction of the law-making as an essential component of state power on the basis and in accordance with the Constitution.

2. Article 2 of the Law provides definitions of basic terms relating to the system of normative legal acts of the Republic of Belarus. At the same time, definitions of a number of terms are given (“law-making activity”, “law-making process”, “legal uncertainty”, etc.), definitions of such terms as “analogy of law”, “legislative initiative”, “gaps in legislation”, etc. are specified.

The Constitutional Court considers that formulation by the legislator of definitions of terms important for law-making activity is aimed at a uniform normative regulation of public relations in the law-making, as well as the elimination of legal shortcomings in this activity.

Thus, the definition of legislation in the Law as a system of normative legal acts with their internal consistency and hierarchy that ensures legal regulation of public relations, in the opinion of the Constitutional Court, meets the goals and principles of a state based on the rule of law, which implies that the rule-making shall be conducted on the constitutionally determined normative basis.

3. Article 6 of the Law establishes both the basic principles of rule-making and the legal mechanisms for their implementation. While maintaining the existing principles, on the basis of which law-making activities are carried out (principles of constitutionality, priority of generally recognised principles of international law, protection of human rights, freedoms and legitimate interests, social justice, scientific character, systematic and comprehensive legal regulation of social relations), in addition the legislator defines the principles of humanism, socio-economic conditionality, stability of legal regulation and introduces additional criteria that reveal the content of separate principles. In particular, it is established that the principle of constitutionality (legality) shall be ensured by the supremacy of the Constitution in the rule-making, the direct effect of its norms; adoption (enactment) of a normative legal act by an authorised law-making body (official) within its competence in the manner and form established by the Constitution and other legislative acts; the conformity of a normative legal act to the Constitution and normative legal acts of a higher legal force, consistency of normative legal acts of equal legal force; the principle of socio-economic conditionality shall be ensured by the compliance of adopted (issued) normative legal acts with the social and economic needs and opportunities of society and the state, as well as with the goals of sustainable development contained in international legal instruments and program legal acts (Articles 6.2 and 6.8).

The definitions of certain principles are clarified in the provisions of the Law relating to revealing of their content through the mechanisms of legal support. Thus, the current principle of protecting the rights and freedoms, legitimate interests of individuals and social justice is formulated as a principle of protecting the rights, freedoms and legitimate interests of individuals, legal entities, interests of society and the state, social justice, which means the obligation of rule-making bodies (officials), when planning, preparing, adopting (enacting) and implementing normative legal acts, to take into account the opinion of the population and the interests of its various groups, political parties, religious organisations and other public associations and to ensure an appropriate balance in the legal regulation of their rights, freedoms and responsibilities, taking into account national traditions and social values of the Belarusian people, to guarantee their implementation and protection for social justice and sustainable development of the Republic of Belarus (Article 6.5 of the Law).

The Constitutional Court considers that defining and revealing by the legislator of the content of the principles of rule-making activity is aimed at ensuring the supremacy of the Constitution, values and principles enshrined in the Constitution, which predetermine the essence and content of the legal system of Belarus, as well as achieving an unequivocal understanding of the legislative provisions that should guide all activities at all stages of the legislative process, including drafting, expertise, adoption (enactment), amending, execution, official interpretation of normative legal acts.

4. Within the exercise by individuals of the constitutional right to the direct participation in the administration of the affairs of society and the State, as well as the right to receive complete, reliable and timely information of the activities of state bodies (Articles 37.2 and 34.1 of the Constitution) the Law regulates issues of public discussion of drafts of normative legal acts.

Article 7.2 of the Law specifies that public discussion shall embrace, as a rule, drafts of legislative acts and resolutions of the Council of Ministers that affect the rights, freedoms and duties of individuals and legal entities and establish new approaches or fundamentally revise existing approaches to the legal regulation of a certain sphere of social relations, as well as drafts of legislative acts that may have a significant impact on the business environment. Article 7.2.3 provides for draft normative legal acts that are not subject to public discussion, including draft normative legal acts prepared in connection with the conclusion, execution, suspension or termination of an international treaty, governing public relations in the field of defense and national security, protection of state secrets, budget, currency legislation, aimed at the implementation of the main directions of monetary policy, as well as draft normative legal acts that, on the instructions of the President of the Republic of Belarus, the Council of Ministers of the Republic of Belarus, the Administration of the President of the Republic of Belarus, should be prepared within less than 15 calendar days.

According to the Constitutional Court, public discussion, being by its nature a public law institution, is intended to provide an open, independent and free public and (or) professional discussion of drafts of normative legal acts, giving everyone the opportunity to participate in the discussion, regardless of having special knowledge or belonging to certain, in particular professional, associations. The purpose of public discussion is to obtain a public assessment of a legal act, its compliance with public expectations, which is one of the components of considering public and private interests.

The Constitutional Court, assessing the legislative regulation of relations relating to the public discussion of drafts of normative legal acts, notes that the normative prescriptions of Article 7 of the Law are focused on ensuring a procedure for public discussion of drafts affecting the rights, freedoms and duties of individuals, that is consistent with the provision of the Constitution, which establishes 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 consolidation by the Law of a prescription on public discussion of drafts of normative legal acts that fundamentally modify existing approaches to the legal regulation of a certain sphere of public relations, meets the requirements of the state based on the rule of law on transparency of legal regulation, its connection with public expectations and positive impact on the growth of individuals' confidence in the State and its bodies.

5. The analysis of Article 8 of the Law on adoption (enactment) by the law-making bodies (officials) of normative legal acts as an experiment shows that such a form of testing new approaches in the legal regulation of social relations has taken root. At the same time, the gaps in the current legislation are eliminated, which allows to provide legal certainty when settling issues related to the experiment.

The legislator, in particular, establishes that at the end of the experiment, an analysis of application of a normative legal act adopted (enacted) as an experiment, positive and negative effects of the experiment, social and other factors that influenced the application of such an act, expenses incurred and income received in connection with the experiment, shall be made together with the forecast of positive and negative consequences that will appear after the adoption (enactment) of the normative legal act without limitation of its action.

According to Article 8.3 of the Law, on the basis of information on the results of the experiment, the law-making body (official) shall decide whether to adopt (issue) a normative legal act without limiting its operation in time and certain territory and (or) in a circle of persons or take other measures for improvement of legislation in the relevant field of public relations and law enforcement practice.

The Constitutional Court considers that since the provisions formulated in this Article of the Law do not exclude the possibility of negative consequences of adoption (enactment) of a normative legal act as an experiment, in case negative consequences of adoption (enactment) of a normative legal act as an experiment are revealed, the risk of these consequences should not be imposed solely on the subjects of legal relations that fall within the effect of such an act, if the relevant relations have been legitimate and have been committed in accordance with the regulations and requirements of the experiment.

6. Article 75 of the Law regulates legal monitoring, which is understood as systematic analysis and assessment of the quality of legislation, law enforcement practice, effectiveness of legal regulation of public relations, carried out by law-making bodies (officials), as well as by other authorised state bodies (organisations) within their competence.

This Article of the Law provides that in order to exercise legal monitoring, these bodies (organisations) shall hold public discussions, create working groups, including interdepartmental ones, study proposals of state bodies and other organisations, including scientific organisations, public associations and individual, on how improve legislation and law enforcement practice, analyse information contained in the media, reviews of the law enforcement practice, exchange information between the relevant state bodies and other organisations, use other methods that do not contradict the legislation.

Taking into account the definition of monitoring given in the analysed Article of the Law, its legal essence and main components, the Constitutional Court considers that although, when defining the mentioned possible forms of the exercise of legal monitoring, a uniform procedure for its exercise and forecasting the anticipated consequences of adoption (enactment) is not established, including the definition of a state body (other organisation) responsible for settling related issues, the implementation of legislative prescriptions concerning legal monitoring by law-making bodies and other state bodies may have the expected impact on improving the quality of legislation and law enforcement practice, thus ensuring efficiency and effectiveness of the legal regulation of public relations, observance of normative legal acts in accordance with the constitutional principles and rules.

7. The Law contains a number of normative requirements concerning, inter alia, the establishment of prohibitions:

on the inclusion in local acts of provisions worsening the legal status of individuals and legal entities to which local acts apply compared to legislation (Article 5.3);

on delegation of powers to adopt (issue) normative legal acts by a rule-making body (official), if such powers are granted by a legislative act, as well as to another rule-making body (official) of the same level, unless otherwise provided by legislative acts (Article 55.1.2);

on indication in the normative legal act of the date of its entry into force before the date of its adoption (enactment) (Article 64.5).

Article 64.6 of the Law also contains a rule that normative legal acts adopted (issued) with violation of the procedure established by this Law for mandatory legal expertise, their inclusion in the National Register of Legal Acts and official publication shall not be in force.

The consolidation in the Law of these requirements, which are mandatory for all law-making bodies (officials), is actually the establishment of the limits of their jurisdiction in regulating the relevant public relations on issues (areas of activity) that are within the competence of these bodies (officials). The Constitutional Court considers that such legislative regulation is based on the requirements of the constitutional principle of the rule of law (Article 7.1), aimed at achieving constitutionally significant goals and settling issues, including protection of the rights and legitimate interests of individuals and organisations, the guarantee of which is vested in the state.

8. The Law takes into account the legal positions of the Constitutional Court set forth in the decisions of 18 December 2008 “On Exercise of the Subjective Right in case of Termination of Legal Rules”, of 15 December 2010 “On the Operation of a Normative Legal Act in Time in case of Termination of Delegated Powers for its Adoption (Enactment)”, etc.

A number of conceptual proposals of the Constitutional Court, formulated in the Messages of the Constitutional Court on constitutional legality in the Republic of Belarus in 2012, 2014, 2016 and 2017, to improve the legal system of the state have been implemented: introduction of legal monitoring as systemic activities of state bodies and other organisations to assess the effectiveness of national legislation, analysis of the impact of the law on public relations; determination of priorities in social and socio-economic development, state-building; unconditional observance by law-making bodies of the principle of legal certainty, according to which a normative legal act shall have a certain character, effectively influence public relations and establish proportionate legal regulation; elaboration at the state level of an effective mechanism for studying and evaluating the regulatory impact of legislation on the achievement of the goals of the economic and socio-political development of the state; introduction of effective scientific law-making forecasting to ensure constitutional and legal security and predictability of legislative regulation.

The consideration of the legal positions and proposals of the Constitutional Court by the legislator is based on the constitutional principle of separation of powers and is aimed at the proper establishment of the principles of the supremacy of the Constitution and the rule of law in law-making.

The Constitutional Court also believes that overcoming the rule-making defects, that make normative provisions unconstitutional or entailing their unconstitutional application, is ensured, among other things, by the implementation of legal positions of the Constitutional Court by the legislator, other law-making body (official), that are aimed not only at revealing the deficiencies of legal regulation in order to eliminate them, but also at the establishment of the constitutional and legal meaning of normative prescriptions and determination of the vector of further improvement of the constitutional and legal regulation of relevant relations.

9. In Article 66.2 of the Law the legislator formulates prescriptions relating to giving retroactive effect to a normative legal act.

In terms of their content, these regulations reproduce Article 67.2 of the Law on Normative Legal Acts. Moreover, if the first part of paragraph 2 of the analysed Article of the Law contains a rule of imperative nature that giving a retroactive effect to a normative legal act shall not be possible if it provides for the introduction or strengthening the responsibility of individuals and legal entities for actions that at the time of their commission did not entail the said responsibility or entailed a softer responsibility, then in part two of this paragraph the norm is retained according to which normative legal acts that otherwise worsen the situation of individuals and legal entities (imposing additional (increased) as compared to the pre-existing obligations or limiting the rights or depriving existing rights), shall not have retroactive effect, unless otherwise provided by legislative acts.

Assessing the legislative provision on the possibility of giving retroactive force to normative legal acts that otherwise worsen the situation of individuals and legal entities, the Constitutional Court notes the following.

In accordance with Article 104.6 of the Constitution, the law shall have no retrospective action unless it extenuates or revokes the responsibility of citizens.

It follows from the meaning of this constitutional provision that it applies not only to laws, but also to all subordinate acts, since the prohibition on giving retroactive force to normative legal acts that establish or reinforce individuals' responsibility is formulated as a universal rule that does not contain exceptions for laws nor for other normative legal acts.

According to the Constitution, 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).

In this regard, the legislator’s assumption of the possibility of giving retroactive effect to normative legal acts that otherwise worsen the situation of individuals and legal entities, if such is provided for by legislative acts, does not contradict constitutional requirements.

Taking into account the foregoing, the Constitutional Court concludes that the Law complies with the Constitution and is aimed at comprehensive and systematic regulation of relations in the field of law-making, meeting the requirements of the principles of supremacy of the Constitution and the rule of law, increasing the effectiveness of law-making activities, optimising the procedure for drafting normative legal acts, their adoption (enactment), increasing the level of legal culture, which contributes to the further formation of the state based on the rule of law and strengthening the legal sovereignty of the Republic of Belarus.

The Law was adopted by the House of Representatives of the National Assembly of the Republic of Belarus within the framework of powers in accordance with Article 97.1.2 of the Constitution, approved by the Council of the Republic of the National Assembly of the Republic of Belarus in accordance with Article 98.1.1 of the Constitution.

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

In view of the foregoing, by virtue of Articles 116.1 and 116.7 of the Constitution of the Republic of Belarus, Article 24.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 103–105 of the Law of the Republic of Belarus “On the Constitutional Proceedings” the Constitutional Court of the Republic of Belarus

 RULED:

 1. To recognise the Law “On Normative Legal Acts” to be conforming to the Constitution of the Republic of Belarus.

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

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

Presiding Officer –

Petr Miklashevich,

Chairman of the Constitutional Court

of the Republic of Belarus