Announcement of the Bulletin of the Constitutional Court of the Republic of Belarus

• Official materials and Decisions of the Constitutional Court of the Republic of Belarus

Decision of the Constitutional Court of the Republic of Belarus of 7 July, 2009 No D-351/2009 "On the conformity of the Law of the Republic of Belarus «On Making Alterations and Addenda to Some Laws of the Republic of Belarus Regarding Documenting Population of the Republic of Belarus» to the Constitution of the Republic of Belarus"

Decision of the Constitutional Court of the Republic of Belarus of 7 July, 2009 No D-352/2009 "On the conformity of the Law of the Republic of Belarus «On Making Alterations and Addenda to Some Laws of the Republic of Belarus» to the Constitution of the Republic of Belarus"

Decision of the Constitutional Court of the Republic of Belarus of 7 July, 2009 No D-353/2009 "On the conformity of the Law of the Republic of Belarus «On the Order of Departure from the Republic of Belarus and Entry into the Republic of Belarus of Citizens of the Republic of Belarus» to the Constitution of the Republic of Belarus"

Decision of the Constitutional Court of the Republic of Belarus of 7 July, 2009 No D-354/2009 "On the conformity of the Law of the Republic of Belarus «On Making Alterations and Addenda to the Law of the Republic of Belarus «On the Trade Mark and Service Mark» to the Constitution of the Republic of Belarus"

Decision of the Constitutional Court of the Republic of Belarus of 7 July, 2009 No D-355/2009 "On the conformity of the Law of the Republic of Belarus «On Making Alterations and Addenda to Some Laws of the Republic of Belarus Regarding Criminal Responsibility and Investigation and Search Activities» to the Constitution of the Republic of Belarus"

Decision of the Constitutional Court of the Republic of Belarus of 10 July, 2009 No D-356/2009 "On the conformity of the Law of the Republic of Belarus «On the Bodies and Units of Emergency Situations of the Republic of Belarus» to the Constitution of the Republic of Belarus"

Decision of the Constitutional Court of the Republic of Belarus of 10 July, 2009 No D-357/2009 "On the conformity of the Law of the Republic of Belarus «On Making Alterations to the Law of the Republic of Belarus «On the Bodies of Financial Investigations of the State Control Committee of the Republic of Belarus» to the Constitution of the Republic of Belarus"

Decision of the Constitutional Court of the Republic of Belarus of 10 July, 2009 No D-358/2009 "On the conformity of the Law of the Republic of Belarus «On Making Alterations and Addenda to Some Laws of the Republic of Belarus Regarding Social Security of the Handicapped Person» to the Constitution of the Republic of Belarus"

Decision of the Constitutional Court of the Republic of Belarus of 17 July, 2009 No D-360/2009 «On the equal labour rights of citizens»

In the Republic of Belarus the guarantees of the constitutional right to work are provided by the most important international legislation as the International Covenant on Economic, Social and Cultural Rights, the Convention of the International Labour Organisation No. 111 on discrimination in employment and occupation of June 25, 1958 and the Labour Code of the Republic of Belarus. In pursuance thereof any restrictions or preferences on the basis of sex, race, national extraction, language, religious or political opinion, membership or non-membership in trade unions or other public associations, property or employment status, physical or mental disability, which do not hinder the performance of employment duties, shall be prohibited. The similar requirements regarding discriminatory conditions have been stipulated in the provisions of the Law «On Employment of the Population of the Republic of Belarus» , which determines state policy and guarantees to promote the population employment.
Either the omission of discriminatory conditions prohibition in Article 14 of the Labour Code or the age and residence omission in Article 10 of the Law «On Employment of the Population of the Republic of Belarus» may practically lead to the fact that the mentioned conditions will not be considered as discrimination.
The facts of that the employers have included in their offers on vacant work positions (vacancies) the requirements on age, residence and other conditions irrelevant to one’s business qualities make backgrounds for the violation of the citizens’ constitutional right: that is, the right to choose of one's profession, type of occupation and work in accordance with one's vocation, capabilities, education and vocational training, and having regard to social needs (Article 41 of the Constitution of the Republic of Belarus); women’s rights equal with men in their working opportunity and promotion in labour (Article 32 of the Constitution of the Republic of Belarus); the right to move freely and choose their place of residence within the Republic of Belarus (Article 30 of the Constitution of the Republic of Belarus).
In order to fill the legal gap and ensure the exercise of the citizens’ constitutional right to work it has been decided by the Constitutional court to make additions to the Labour Code of the Republic of Belarus including age and residence in discriminatory conditions. At the same time it has been recognised as needed to introduce a special provision in the Law «On Employment of the Population of the Republic of Belarus» prohibiting the employer to establish discriminatory conditions in their job offers.

Decision of the Constitutional Court of the Republic of Belarus of 3 September, 2009 No D-361/2009 «On the disputes arising from the insurance relationships»

In the decision of the Constitutional Court it is noted that the general and economic courts adopt different decisions on the insurance payment of the compensation under the contract of obligatory insurance of civil liability for the vehicle owners. For they apply different approaches to determine the amount of insurance compensation to be recovered from the insurer who exercises compulsory insurance of civil liability of vehicle owners, in part of including the actual cost for reconstruction of the vehicle which met with an accident, as well as the provision of insurance amount, paid in favour of the victim by the insurer that exercises compulsory insurance against industrial accidents and occupational diseases.
In order to ensure the rights and freedoms of citizens of the Republic of Belarus, the rights and legitimate interests of legal persons, as well as the appropriate remedies the Constitutional Court made a proposal to the Supreme Court of the Republic of Belarus and the Supreme Economic Court of the Republic of Belarus to work out an agreed interpretation of the law provisions to be applied by the courts in cases involving compulsory insurance of civil liability of vehicle owners, and provide the courts with an interpretation in the form of a joint resolution on the application of the law relevant to insurance of citizens and legal persons.

•  Execution by the state bodies of the Decisions of the Constitutional Court of the Republic of Belarus

 S.P. Latushkin. On the execution of the decisions of the Constitutional Court of the Republic of Belarus in the third quarter 2009

•  Scientific information

 P.P. Miklashevich. Problems of citizens access to the constitutional justice

The author believes that in absence of the direct constitutional complaint the indirect access to the national constitutional justice is also an effective way to defend the rights of an individual. Indirect access of an individual to the constitutional justice in the Republic of Belarus is carried out in two ways: first, through a judicial mechanism set out in Article 112 of the Constitution, and second, by appeal to the Constitutional Court of authorized bodies specified in Article 116 of the Constitution on the basis of an individual complaint with unitiative on constitutionality review of a normative legal act.
According to the author, the mechanism under Article 112 of the Constitution should be defined more accurately on the basis of European experience using prejudicial legal proceeding both at the national level, if the general courts send a request to the Constitutional Court, and the supranational level, if the national courts appeal to the Court of Justice of the European Communities. The Revision of Article 112 of the Constitution will contribute to a specific meaning of the constitutional provision that defines the interaction of an individual, the court of general jurisdiction and the Constitutional Court.The results of review by authorized bodies (specified in Article 116 of the Constitution) of an individual appeal can be as follows: in the case of initiating the review in the Constitutional Court – to consider by the Constitutional Court the constitutionality of a normative legal act brought by the individual appeal, , if the issue raised in the appeal is not within the competence of the Constitutional Court – a decision on the substance. If a violation of rights of an individual is confused by him/her with the constitutionality of an act applied to his/hers legal situation, while it may be referred to an incorrect application of the act, conflict of laws, misconduct of officials – in this case an individual’s appeal must be considered by the competent authority on the substance. A special form of individual access to constitutional justice, which is set up in the Republic of Belarus, resolves effectively a problem of «formal consideration» of an appeal. Authorized bodies, representing all branches of power, preliminarily consider an individual appeal and act as «filters», and if necessary, actively contribute to the restoration of a violated right.
The procedure of consideration of individual appeals on the constitutionality of an act must be thoroughly established by rules of procedure and other legal normative acts of authorized subjects. The Constitutional Court has already expressed its legal position on this issue and now is expecting the introduction of relevant amendments to the Rules of Procedure of the Chambers of Parliament.

L.M. Ryabtsev. The content of the constitutional principle of the separation of powers.

The issues of the place and role of public authorities in the system of separation of powers are studied in the article. The attention is drawn to the fact that the executive and judicial branches of power in the constitutional and legal institutions operate only within the framework set forth in normative legal regulations of the legislative branch. The author emphasises a socio-political nature of the principle of separation of powers enshrined in Article 6 of the Constitution of the Republic of Belarus. He also reveals the independence of the legislative, executive and judicial branches of powers, their basic features, order of interaction as a unified state mechanism.

I.I. Plihimovich. The legislation on the Law perfection: analysis of the problem.

The article analyses the normative legal acts regulating the activities of the state bodies of Belarus on improving the national legislation. It is noted that the majority of authorities are not obliged to develop proposals for improving normative legal regulation. In practice they are neither very active in improving it. It is concluded that in Belarus there is no system of normative legal acts on improvement of legislation and the need to create the whole regulatory mechanism in this area.

K.V. Akimenko. The genesis of the concept of the civil rights and freedoms of the person

This article examines the question on the genesis of the civil rights and freedoms concept. The position is proved that the social roots of the civil rights of individuals and their function serve one of the problems of historical and socio-cultural development of the society. It is noted that the principal and ultimately the supreme criterion and the fundamental principle of any rule of law state is its ability to promote and protect the rights and freedoms of the individual. Human rights must be the primary focus for the activities of the state, all its power structures and officials. The conclusion is justified that human rights, including civil and individual rights are intended both to promote the consolidation of the society.

I.E. Martinenko. The Legal State protection of the material historical and cultural heritage of Belarus.

The article deals actual the vital problems of historical and cultural heritage protection. The state protection of historical and cultural heritage involves the system of legal, organisational, financial, informational, scientific and other measures taken by the state. All of them aimed at revelation, calculation, analysis, renewal and protection of historical and cultural values and other objects of cultural heritage. The author draws a conclusion on the need to improve legislation on historical and cultural protection regarding passing the law «On protection of archaeological heritage» and other normative acts.

O.V. Chmiga. The elective person of the territorial public self-government bodies: features of a legal status

The problem of the uniform comprehension of legal status of elected persons of the bodies of territorial social self-government is being addressed in the article. The main terms forming the foundation of the legal status of these persons are analysed in their interrelations and connections. Finally, the legal status of elected persons of the bodies of territorial social self-government is defined as the legal political status thereof incorporating its interrelated and interconnected elements, such as a mandate, bases of its creation and termination, powers and safeguards of activities as well as the responsibilities of the persons.

N.S. Baiborosha. The surrogate motherhood as a way of realization of the reproductive rights: the constitutional grounds

The article brings up issues on the concept of reproductive rights that evolved in the end of XX century. However the development of optimal reproductive rights definition is still being discussed. It has not been decided yet what rights can be considered as belonging to the institute of reproductive rights. The author of the article deals with the right to surrogate motherhood realisation for the purpose of reproductive rights realization. He discovers constitutional basis of surrogate motherhood as well as identifies some legislative approaches to the issue of right and prohibition correlation in order to realise surrogate motherhood with constitutional rights.

N.M. Bizuk. The role of a concession in stimulating economic development of the Republic of Belarus

The article analyses a new form in Belarus investment - the institute of concession. It is noted that this investment form provided by the Investment Code of the Republic of Belarus, has not yet received sufficient development and application in the country. The attention is drawn to the fact that the concession could play an important role in attracting investments in Belarus because the state has a high proportion of ownership, most part of the objects can be owned only by the state, and the Institute of concession can transfer those facilities to private investors.
The author explores the current global concession practice, carries out a comparative analysis of Belarusian and foreign laws. Based on its resultes, the specific recommendations are laid down for the development of the institute of concession in Belarus.

V.V. Gorbach. Discharge of activity of political parties in Germany as the constitutional sanction

The article deals with legal regulation of termination of political parties’ activities in Germany and the case-law of the Federal Constitutional Court in FRG on claims about the compulsory termination of political parties’ activities. The reasons of the ban and the procedure of termination of the political parties’ activities are analysed as well as certain problems connected with the use of German legislation putting under a ban a political party. The abolition of certain political parties in Germany is considered as sanctions connected with constitutional legal responsibility.

•  International relations of the Constitutional Court of the Republic of Belarus

On the international seminar «The Role of the Constitutional Court of the Republic of Belarus in the development of institutes of the civil constitutional rights and freedoms realisation» (September 22, 2009, Minsk)