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, V.Z. Shuklin

     with participation of:

     a representative of the President of the Republic of Belarus - V.G. Golovanov;

     representatives of the House of Representatives of the National Assembly of the Republic of Belarus - V.M. Alexsandrov, V.A. Dolinski;

     a representative of the Council of the Republic of the National Assembly of the Republic of Belarus - S.A. Sviridova

     has examined in open Court session the case "On the conformity between the Constitution of the Republic of Belarus, international legal acts and part two of Article 207, part one of Article 268, part one of Article 269, part one of Article 291 of the Civil Code of Procedure of the Republic of Belarus".

     The Court session was attended by: V.N. Ptashnik - Deputy Chairman of the Supreme 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 a constitutional motion filed by 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 were part two of Article 207, part one of Article 268, part one of Article 269, part one of Article 291 of the Civil Code of Procedure of the Republic of Belarus (CZ BSSR, 1964, No. 17, art. 184; Vedamastsi Natsiyanalnaga Skhodu Respubliki Belarus, 1998, No. 28, art. 460).

     Part two of Article 207 of the Civil Code of Procedure of the Republic of Belarus (hereafter - CCP) envisages that the decision of the Supreme Court of the Republic of Belarus shall come into force immediately after its promulgation.

     In accordance with part one of Article 268 of CCP decisions of all the courts of the Republic of Belarus, except for the decisions of the Supreme Court, may be subject to appeal against in the procedure of cassation by the parties as well as by other persons who take part in the case, or subject to protest by the public prosecutor within ten days period of time from the date of its promulgation.

     Part one of Article 269 of CCP establishes that cassation or cassation protest shall be lodged against the decisions of district (city), inter-garrison military courts in judicial collegium on civil cases of the relevant oblastnoi, Minsk city, Belarusian military courts; against decisions on civil cases of oblastnoi, Minsk city courts - in judicial collegium on civil cases of the Supreme Court of the Republic of Belarus; against decisions of Belarusian military court - in Military collegium of the Supreme Court of the Republic of Belarus.

     In accordance with part one of Article 291 of CCP rulings of the court of first instance, except for the rulings of the Supreme Court of the Republic of Belarus, may be subject to appeal separately from the decision of the court by the parties and by other persons who take part in the case, and may be subject to protest by the public prosecutor in the cassation instance in cases specified by the given Code, as well as in cases when the ruling of the court obstructs the possibility of further development of the case.

     The President of the Republic in his motion has put an issue on the verification of the constitutionality of the specified norms of CCP considering that the absence of the right to cassation against decisions and rulings of the Supreme Court on the cases examined by it as in first instance shall be at variance with the Constitution and international legal acts.

     Having heard Ms R.I. Filipchik, Judge-speaker, representatives as litigants, studied the materials of the case, analysed the provisions of the Constitution, the Law "On the judicial system and status of judges in the Republic of Belarus" and other enforceable enactments of the Republic of Belarus, international legal acts, as well as studied the practice of cassation against rulings of the courts and their revision in the procedure of supervision, the Constitutional Court has established the following.

     Under Article 21 of the Constitution safeguarding the rights and liberties of the citizens of the Republic of Belarus shall be the supreme goal of the State. The Constitution proclaims the principle of equality of all before the law and the right without any discrimination to equal protection of their rights and legitimate interests (Article 22). The Basic Law shall guarantee everyone the protection of one's rights and liberties by a competent, independent and impartial court of law (Article 60). Under part three of Article 115 of the Constitution the parties and the persons have the right to appeal against rulings, sentences and other judicial decisions.

     Article 8 of the Universal Declaration on Human Rights envisages that everyone shall have the right to effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. In accordance with Article 29 of the given Declaration in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. Article 2 (sub-item "a" of point 3) of the International Covenant on Civil and Political Rights stipulates that each State undertakes to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy. Under Article 14 (point 1) of the specified International Covenant everyone, in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 26 of the Covenant in question envisages that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

     Thus, both the provisions of the Constitution and universally acknowledged norms of international law shall oblige the state to secure the citizens not only the access to justice, equality of all before the law but also full exercise of the right to judicial protection which shall be fair, competent and effective.

     One of the real guaranties of exercising constitutional right to judicial protection and delivering by the courts of lawful and well-grounded decisions is the right to appeal and protest against courts' rulings.

     Decision of the court may not be deemed to be fair and justifiable and judicial protection - full and effective, if a judicial mistake is made. The state is binding to guarantee protection of human rights and freedoms and rights and freedoms of the citizens from judicial mistake. By establishing the procedure of exercising justice in legislation there shall be envisaged effective mechanism (procedure) of correction of those mistakes.

     The Constitutional Court has studied the issue on realization of the right to judicial protection by means of the envisaged in legislation procedures of cassation and supervision appealing against rulings of the court.

     Making a complaint or a protest with regard to courts' rulings which have no legal force, there shall be brought the proceedings in the court of second instance (cassation proceedings).

     In accordance with Article 280 of CCP while examining the case in the procedure of cassation the court of second instance on the materials available in the case and materials further presented by the parties and by other persons who participate in the case shall verify the legality and validity of the decisions of the court of first instance both in the appealed and non-appealed part as well as in respect to the persons who made no claim. The court is obliged to verify the case in full.

     Article 268 of CCP specifies the circle of subjects who shall have the right to appeal and protest against courts' rulings in the procedure of cassation as well as establishes that decisions of all the courts of the Republic of Belarus except for the decisions of the Supreme Court may be appealed and protested against in the procedure of cassation. Decisions of the Supreme Court delivered as in first instance may be revised only in the procedure of supervision by the Presidium of the Supreme Court and then by the Plenum of the Supreme Court.

     The effective legislation determines the procedure of revision of the decisions of the courts which have already come into force in the procedure of supervision including judicial rulings of the Supreme Court delivered by it as in first instance. In practice the ground for making protest in the procedure of supervision are the complaints of the parties and the interested persons. However lodgement of the complaint in the procedure of supervision does not entail binding institution of the proceedings in revision.

     The list of the officials who authorized to make a protest is determined in Article 295 of CCP. Article 299 of CCP envisages that in instance of presence of the grounds for making protest an official who is authorized to make a protest shall draw up and forward the protest together with the file to the relevant court for its examination. Thus institution of the proceedings on the revision of the case shall depend not on the will of the persons who take part in the case, but only on the official who has the right to make the protest given, in his opinion, the grounds thereto.

     Having analysed the effective procedural legislation concerning the realization by the citizens of the right to appeal against courts' rulings in the procedure of cassation and the right to lodge a complaint in the procedure of supervision, the Constitutional Court considers that the most full securing of procedural rights of the parties and persons who take part in the proceedings shall be in instance of revision of the cases in the procedure of cassation, since the lodgement of cassation in the specified procedure shall always involve the revision of the case. The complaint in the procedure of supervision may be only the ground for making protest concerning the recall courts' rulings which have taken effect.

     The effective CCP does not use the notion "supervision complaint". Chapter 26 of CCP on the revision in the procedure of judicial supervision of the valid decisions and rulings, the norms of which has been estimated by the Constitutional Court in accordance with Article 11 of the Law "On the Constitutional Court of the Republic of Belarus" as connected with the norms under verification, shall not determine the procedure of making and examination of the supervision complaint. In particular, there is no regulation of the issues that the supervision complaint is the ground for demand of the file and for making protest by the authorized official, there is no determination of the content of the supervision complaint, the name of a body or an official to whom it may be addressed the complaint, the terms of examination of the given complaint, grounds for the refuse of its satisfaction as well as other issues which are of essential importance for supervision appealing or protest. The Constitutional Court having regard to the provisions of Article 59 of the Constitution deems that the wordings of the norms which determine the powers of the officials for making protest in the presence of adequate grounds shall bare binding character.

     Thus provisions of part two of Article 207, part one of Article 268, part one of Article 269 and part one of Article 291 of CCP which envisage that coming into force of the decisions of the Supreme Court as in first instance immediately after their proclamation and which allow no cassation or protest against the decisions and rulings of the Supreme Court on the cases examined by it as in first instance equally with the provisions of CCP connected with the norms under verification, do not meet in full the requirements of Articles 21, 22, 60 and 115 of the Constitution and international legal acts, since they do not properly secure constitutional guarantees of the equality of all persons before the law as well as procedural guarantees of realization of the right to appeal against courts' rulings.

     The Constitutional Court emphasizes that the Law "On judicial system and status of judges in the Republic of Belarus" has stipulated the establishment of cassation against rulings adopted by the Supreme Court on the cases examined by it as in first instance. The competence of the cassation instance in the given cases has been vested in the Presidium of the Supreme Court of the Republic of Belarus (Article 53). However relevant amendments, as it was presumed in final clauses of the Law in question (Section VI), had not been made to the civil legislation of procedure. Provisions of the Law on judicial system and status of judges concerning the possibility of cassation against the rulings of the Supreme Court adopted by it as in first instance have not been reflected in new CCP which is coming into force as of 1 July 1999 (Articles 399, 400, 433 etc.).

     The Constitutional Court considers that the solution of the issue on the forms of securing of the right of the parties and persons who take part in the proceedings to appeal against all the rulings of the courts is a prerogative of the lawmaker who shall determine the mechanism (procedure) of the appealing in question. Based on the requirements of Articles 21, 22, 60 and 115 of the Constitution those tools shall maximum secure the realization of the constitutional rights of the citizens to appeal against the courts' rulings.

     In this connection with a view to realize the constitutional provisions the Constitutional Court considers it necessary to recommend the state bodies to examine the issues on additional guarantees while examining the complaints lodged by the parties and the persons who take part in the proceedings as regards the rulings delivered by the Supreme Court on the cases examined by it as in first instance.

     Based on the aforementioned and guided by Article 116 of the Constitution, Articles 5, 6, 9, 11, 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court

RULED:

1. To find to be at variance with the Constitution and international legal acts:

part two of Article 207, part one of article 268, part one of Article 269, part one of Article 291 and provisions of Chapter 26 of the Civil Code of Procedure of the Republic of Belarus connected with the norms under verification to the extent where they do not properly secure procedural guarantees of realization of the right of the parties and persons who take part in the proceedings to appeal against the judicial rulings of the Supreme Court of the Republic of Belarus delivered on the cases examined by it as in first instance.

2. The National Assembly of the Republic of Belarus is proposed to consider the issue of strengthening of procedural guarantees to appeal and protest against judicial rulings of the Supreme Court of the Republic of Belarus as in first instance 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 Constitutional Court

of the Republic of Belarus                                                                                              G.A. Vasilevich