The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman - A.V. Maryskin, judges T.S. Boiko, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.I. Shabailov, G.B. Shishko, V.Z. Shuklin

     with participation of representatives as litigants:

     of the President of the Republic of Belarus who made a constitutional motion on the verification of the constitutionality of the enforceable enactment: A.I. Lukashov - Head of the section of legislation on the issues of national security, law enforcement and judicial bodies of the National Centre of draft law activities under the President of the Republic of Belarus;

     of the House of Representatives of the National Assembly of the Republic of Belarus: L.K. Orlov - Head of the Department of criminal and administrative legislation of the Management of expert examination of draft laws of the Main Expert and Law Management of the Secretariat of the House of Representatives of the National Assembly of the Republic of Belarus;

     of the Council of the Republic of the National Assembly of the Republic of Belarus: L.Y. Senuta - main specialist of the Department of state, criminal and administrative legislation of expert and law Management of the Secretariat of the Council of the Republic of the National Assembly of the Republic of Belarus

     has examined in open Court session the case "On the conformity between the Constitution of the Republic of Belarus, international legal acts and part six of Article 209 of the Criminal Code of Procedure of the Republic of Belarus".

     The Court session was attended by: I.A. Mironichenko - Deputy Chairman of the Supreme Court of the Republic of Belarus; P.I. Ivanenko - Deputy Procurator-General of the Republic of Belarus; O.G. Sergeeva - Deputy Minister of Justice of the Republic of Belarus.

     The proceedings were brought of 14 April 1999 as a result of the constitutional motion of the President of the Republic of Belarus on the grounds of Article 116 of the Constitution of the Republic of Belarus, Articles 5 and 6 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 43 of the Rules of Procedure of the Constitutional Court.

     The subject to verification was part six of Article 209 of the Criminal Code of Procedure of the Republic of Belarus (hereafter - CCP) under which the ruling on dismissal of the case may be appealed against to the public prosecutor (CZ BSSR, 1961, No. 1, art. 5).

     The President of the Republic of Belarus in his motion has put a question on the verification of the constitutionality of part six of Article 209 of CCP and pointed out, that the given norm is at variance with Articles 22 and 60 of the Constitution of the Republic of Belarus as well as with universally acknowledged principles of international law.

     Having heard Ms K.I. Kenik, Judge-speaker, representatives as litigants, studied the materials of the case, analysed the provisions of the Constitution, the Criminal Code of Procedure, other laws of the Republic of Belarus, international legal acts, as well as law enforcing practice, the Constitutional Court has established the following.

     Article 209 of CCP of the Republic of Belarus shall specify the procedure of dismissal of a criminal case on the stage of pre-trial investigation. In particular, the said Article envisages that about the dismissal of a case an investigator shall make a motivated ruling where it is stated the essence of the case and grounds for its dismissal. Copy of a ruling on the dismissal of the case shall be forwarded by investigator to public prosecutor. At the same time investigator shall notify in written form about dismissal and grounds of dismissal of a criminal case a person who is calling as an accused, victim, as well as a person, establishment under whose applications the case was brought and shall expound the procedure of appealing.

     Under part six of the given Article the ruling on dismissal of a case may be appealed against to public prosecutor.

     Legislative securing of the right of interested persons to appeal against the ruling on dismissal of the case to public prosecutor shall allow to ensure quick elimination of the errors and violations of the law, if they have been made in the process of inquiry and pre-trial investigation. However, the specified in the law right to appeal to public prosecutor against the ruling of the bodies of inquiry and of pre-trial investigation on dismissal of the case is apprehended in practice as the only way of appealing against the decisions of those bodies on dismissal of the case, the way which shall exclude the possibility to lodge a complaint to the court of law for the verification of legality and validity of the ruling in question. The complaints of the citizens incoming the Constitutional Court of the Republic of Belarus confirm the aforesaid.

     According to Article 208 of CCP of the Republic of Belarus a criminal case shall be subject to dismissal:

     1) in the presence of the grounds specified in Articles 5, 51, 54, 55 of CCP;

     2) by failure to prove the participation of the accused in making a crime, if all possibilities to collect additional evidence have been exhausted;

     3) in the presence of the grounds for release from criminal liability which are specified in Articles 61, 611, 651, 742, 1526, 170, 213, 2132, 2191 of the Criminal Code of the Republic of Belarus.

     In accordance with the provisions of the criminal and criminal procedural legislation the case may be dismissed both in the presence of the grounds which rehabilitate a citizen (absence of the event of a crime, absence in a deed of corpus delicti as well as other grounds which justify a citizen) and in the instances when in the opinion of the bodies of pre-trial investigation the deeds of the suspect or accused contain features of corpus delicti, however, there are specified in law grounds for his release from criminal liability (expiry of the periods of limitation, act of amnesty and other).

     While dismissing a criminal case on non-rehabilitating grounds the ruling on dismissal of the case shall contain the information about the presence in the deed of a person of the features of corpus delicti that practically points out his guilt in making a crime.

     Under Article 26 of the Constitution no one may be found guilty of a crime unless his guilt is proven under the procedure specified in law and established by the verdict of a court of law that has acquired legal force.

     In instance when the criminal case is dismissed under non-rehabilitating grounds, i.e. with the recognition of the presence in the deed of a person of the features of corpus delicti, the interested person is not secured the right to examination judicially of the facts which form the basis of the ruling on dismissal of the case.

     The absence in part six of Article 209 of CCP of the norm on the right to judicial protection shall essentially restrict the constitutional rights of crime victims as well as other participants of the criminal proceedings whose rights and legitimate interests have been violated as a result of dismissal of a case on the stage of pre-trial investigation.

     That is specified by the fact that part six of Article 209 of CCP is found by law enforcement bodies to be the only legislative norm which shall determine the procedure of appealing against the ruling on dismissal of the criminal case. At the same time the given instance shall not envisage the requirements of Articles 137 and 142 of the Constitution which secure the principle of the supremacy of the Basic Law, under Article 60 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. The provision envisaged in Article 60 of the Constitution is an important guarantee for protection of the rights and liberties of the citizens from any violating their actions and decisions.

     Under 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. Article 10 of the Universal Declaration envisages that 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 14 of International Covenant on Civil and Political Rights proclaims that in the determination of any criminal charge against him, or 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.

     The right to judicial protection is one of the universally acknowledged principles of international law, the priority of which under Article 8 of the Constitution the Republic of Belarus shall recognize as well as shall ensure the conformity between them and the legislation.

     That right shall refer to the rights which may not be restricted. The practice of application of part six of Article 209 of CCP leads to the fact that suspects, accused, victims and other persons who are interested in the results of the criminal case are deprived of the right to appeal to the court of law and the decisions of the inquiry bodies and bodies of pre-trial investigation involving their rights and legitimate interests are out of the bounds of judicial control. Thereby the requirements of Article 22 of the Constitution under which all shall be equal before the law and entitled without discrimination to equal protection of their rights and legitimate interests are not being secured.

     The Constitutional Court has come to the conclusion that part six of Article 209 of CCP of the Republic of Belarus where it is not envisaged the right of a citizen to judicial appealing against the ruling on dismissal of the case shall prevent the realization of the right of everyone to judicial protection of one's rights and freedoms guaranteed by the Constitution and international legal acts, as well as is at variance with the Constitution and international legal acts.

     Based on the aforestated and guided by Article 116 of the Constitution, Articles 5, 6, 38, 40, 43 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court

RULED:

1. To find part six of Article 209 of the Criminal Code of Procedure of the Republic of Belarus to be at variance with the Constitution and International Covenant on Civil and Political Rights to the extent where it does not envisage the right to appealing against the ruling on dismissal of the criminal case to the court of law.

2. Before making alterations and addenda into the Criminal Code of Procedure on the issues of judicial appealing against the ruling on dismissal of the criminal case there shall be applied the norm of Article 60 of the Constitution in accordance with Articles 137 and 142 of the Constitution.

3. The National Assembly of the Republic of Belarus shall make into the Criminal Code of Procedure of the Republic of Belarus alterations and addenda which secure the realization of the constitutional right of the citizens to appealing against the ruling on dismissal of a criminal case to the court of law.

4. To publish the present Judgment in ten days period from the date of its adoption in "Narodnaya gazeta" and "Zvyazda", as well as in "Vedamasty Natsiyanalnaga Skhodu Respubliki Belarus".

5. The present Judgment shall come into legal force from the day of its proclamation, is final and subject to no appeal or protest.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                              G.A. Vasilevich