1 June 1999 № J-79/99
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:
a representative of the President of the Republic of Belarus - G.N. Vorontsov;
a representative of the House of Representatives of the National Assembly of the Republic of Belarus: N.A. Karpovich;
a representative of the Council of the Republic of the National Assembly of the Republic of Belarus: L.Y. Senuta.
has examined in open Court session the case "On the conformity between the Constitution of the Republic of Belarus, international legal acts and part one of Article 182 of Administrative Code of the Republic of Belarus".
The Court session was attended by: E.M. Tsarenko - Deputy Chairman of the Supreme Court of the Republic of Belarus; E.A. Smirnov - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; A.V. Ivanovski - Deputy Procurator-General of the Republic of Belarus.
The proceedings were brought by the Constitutional Court 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, 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 one of Article 182 of the Administrative Code of the Republic of Belarus (hereafter - A C) under which the employment by officials of the enterprises, establishments and organizations of the citizens without passports or with invalid passports, as well as the citizens who live without registration shall entail imposition of a fine at the rate to five minimum wages (SZ BSSR, 1984, No. 35, art. 505; Vedamastsi Vyarkhovnaga Saveta Respubliki Belarus, 1995, No. 18, art. 194).
The President of the Republic of Belarus in his motion has put the question on the verification of the constitutionality of the given norm of AC which envisages fining of the officials of the enterprises, establishments and organizations for the employment of the citizens who live without registration. In the opinion of the President the norm in question is at variance with the Constitution, the labour legislation of the Republic of Belarus, international legal acts.
Having heard the Mr V.Z. Shuklin, Judge-speaker, representatives as litigants, analysed the relevant provisions of the Constitution, the Administrative Code of the Republic of Belarus and other enforceable enactments of the Republic of Belarus, the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, as well as other international legal acts, having studied the practice of application of the norm of the Administrative Code under verification and other materials of the case, the Constitutional Court has found the following.
The Constitution guarantees the citizens of the Republic of Belarus the right to work as the worthiest means of an individual's self-assertion, 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), and gives the citizens, in accordance with their capabilities and vocational training, the right to equal access to any post in state bodies (Article 39). The Constitution shall also enshrine the right of the citizens to move freely and choose their place of residence within the Republic of Belarus (Article 30).
The Constitution proclaims safeguarding the rights and liberties of the citizens to be the supreme goal of the State (Article 21). It secures the equality of all before the law and the right without discrimination to equal protection of their rights and legitimate interests (Article 22). It means, that all citizens irrespective of their social status, sex, nationality, religion and other differences shall have equal possibilities for the realization of the constitutional rights the right to work included.
By determining the mechanism of securing of the rights and liberties of the citizens, the Constitution shall entrust the state with the obligation to take all available measures for making internal and international order which is necessary for full realization of the rights and freedoms of the citizens of the Republic of Belarus. At the same time, state bodies, officials and other persons who have been entrusted to exercise state functions shall take necessary measures to implement and safeguard the rights and liberties of the individual (Article 59). Constitutional guarantees of securing of the right of the citizens to work, to free choice of one's profession, type of occupation and right to work, as well as the principle of equality while realizing those rights have found their securing in the labour legislation. The Labour Code of the Republic of Belarus, other enforceable enactments shall prohibit discrimination by employing. The labour legislation does not contain such a well-founded ground for the refuse of the employment as registration. Showing for the employer the passport or other substitutional document specified in legislation is necessary by employing for the identification purposes only and not for the establishment of the fact of the presence or absence of the registration note.
The Constitutional Court considers that the establishment of administrative responsibility for the employment of the citizens without registration shall restrict their right to work, violate the principle of equality of the citizens before the law, put into unequal conditions the persons who have registration and those who do not have it; prevent the citizens from realization of the right to freely conclusion of a labour contract and employers from employment the workers with their capabilities, education and professional training taken into account.
The Constitutional Court has come to the conclusion that part one of Article 182 of the Administrative Code, which establishes responsibility of the employer for the employment of the citizens without registration, is at variance with the Constitution and universally acknowledged principles of international law, the priority of which is secured in Article 8 of the Constitution. Under Article 15 of the Law "On international treaties of the Republic of Belarus" universally acknowledged principles of international law and norms of international treaties of the Republic of Belarus which have come into force shall be the part of the effective law within the Republic of Belarus.
Universal Declaration of Human Rights proclaims that all are equal before the law and are entitled without any discrimination to equal protection of the law (Article 7). Everyone has the right to work, to free choice of employment. Everyone, without any discrimination, has the right to equal pay for equal work (Article 23).
International Covenant on Economic, Social and Cultural Rights shall recognize the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts (Article 6).
International Covenant on Civil and Political Rights shall envisage the equality of all persons before the law and are entitled without any discrimination to the equal protection of the law (Article 26).
Under Convention of the International Labour Organization No. 111: "Concerning Discrimination in Respect of Employment and Occupation" the term "discrimination" includes - any distinction, exclusion or preference, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation (point 1 of Article 1). Convention of the International Labour Organization No. 122 "Concerning Employment Policy" envisages the freedom of choice of employment and the fullest possible opportunity for each worker to qualify for, and to use his skills and endowments in, a job for which he is well suited (point 2 of Article 1). The Member States of the specified Conventions shall be bound to follow economic and social policy which guarantees the realization by everyone of the right to work without any restrictions and discrimination.
In accordance with Article 11 of the Law "On the Constitutional Court of the Republic of Belarus" when reviewing an act, the Constitutional Court shall take into consideration both its literal meaning and the meaning attributed to it in its practical application.
While examining law applicable practice it has been established that officials refuse the citizens for conclusion of a labour contract in connection with absence of registration in the location of an enterprise, establishment, organization, and in case of employment of such persons they bear administrative responsibility. According to the data of the Ministry of Internal Affairs in 1998 for the employment without passport or without registration there have been made in the Republic 611 minutes on calling to administrative responsibility of the specified officials.
The Constitutional Court emphasises that local executive and administrative bodies take decisions which shall give the employers the right to employ the persons who have no registration in the locality of the enterprise, establishment, organization in the presence of certain conditions (for example, the possibility to return daily to one's permanent place of residence).
Based on the subject of verification, the Constitutional Court, having come to the conclusion that part one of Article 182 of the Administrative Code, which envisages responsibility of the officials for the employment of the citizens who live without registration, is at variance with the Constitution and international legal acts, considers, that the officials in question may not be called to responsibility also in accordance with part two of the given Article for the same violation after the application to them of the administrative penalty for such action during one year.
Under Articles 137 and 142 of the Constitution of the Republic of Belarus the Basic Law shall have the supreme legal force. Where there is a discrepancy between a law and the Constitution, the Constitution shall apply. The laws, decrees and other acts which were applied in the territory of the Republic of Belarus prior to the entry into force of the present Constitution shall apply in the particular parts thereof that are not contrary to the Constitution of the Republic of Belarus.
On the grounds of the aforestated and guided by Article 116 of the Constitution, Articles 5, 6, 9, 34, 38, 40, 43 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To find the norms of Article 182 of the Administrative Code of the Republic of Belarus which envisage administrative responsibility of the officials of the enterprises, establishments and organizations for the employment of the citizens who live without registration to be at variance with the Constitution and international legal acts. To consider those norms to be null and void from the day of the institution of the proceedings, i.e. since 14 April 1999.
2. The National Assembly of the Republic of Belarus shall make necessary alterations and addenda into the Administrative Code of the Republic of Belarus in accordance with the present Judgment.
3. 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".
4. 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
of the