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.N. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov

in open court session considered the case “On Legal Regulation of Criminal Proceedings based on Newly Discovered Circumstances”.

The court session was attended by:

Mr I.G. Tushynskiy, Deputy Minister of Justice of the Republic of Belarus ‒ the authorised representative of the Council of Ministers of the Republic of Belarus in the Constitutional Court;

the representatives:

of the Supreme Court of the Republic of Belarus ‒  Mr R.G. Aniskevich, Deputy Chairman of the Supreme Court of the Republic of Belarus;

of the Prosecutor General's Office of the Republic of Belarus – Mr A.K. Stuk, Deputy Prosecutor General of the Republic of Belarus;

of the Investigative Committee of the Republic of Belarus – Mr S.Y. Azemsha, Deputy Chairman of the Investigative Committee of the Republic of Belarus.

The proceedings were initiated by the ruling of the Constitutional Court of 26 March 2019 in accordance with Article 116.1 of the Constitution of the Republic of Belarus (hereinafter – the Constitution), Article 22.3.8 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 158.1 and 158.3 of the Law of the Republic of Belarus “On the Constitutional Proceedings” on the basis of an individual application submitted to the Constitutional Court stating that the provisions of the Criminal Procedure Code of the Republic of Belarus (hereinafter – the CPC) regulating criminal proceedings based on newly discovered circumstances do not provide for the possibility to appeal to a court against the decision of the prosecutor on the termination of the criminal proceedings based on newly discovered circumstances, which indicates a gap in the criminal procedure law and prevents individuals from exercising the constitutional right to judicial protection guaranteed by Article 60 of the Constitution.

Having heard the reporting judge T.V. Voronovich, the authorised representative of the Council of Ministers of the Republic of Belarus in the Constitutional Court,  the representatives of the Supreme Court of the Republic of Belarus, the Prosecutor General's Office of the Republic of Belarus, the Investigative Committee of the Republic of Belarus, having analysed the provisions of the Constitution, the Criminal Procedure Code and other legislative acts of the Republic of Belarus, having examined the submitted documents and other case materials the Constitutional Court found the following.

1. In accordance with Article 39 of the Law “On the Constitutional Proceedings” the Constitutional Court sent requests to the Supreme Court, the General Prosecutor's Office, the Investigative Committee, the Ministry of Justice, the National Centre of Legislation and Legal Research and the Belarusian National Bar Association.

The Supreme Court points out that the purpose of conducting an examination and investigation within the criminal proceedings based on newly discovered circumstances is to establish the presence or absence of grounds for resuming these proceedings, as well as of a causal link between such circumstances and the court ruling entered into legal force. The presence of such link allows the prosecutor to raise before the court the issue of the need to resume proceedings due to newly discovered circumstances. Otherwise, the prosecutor shall take a decision to terminate the proceedings based on newly discovered circumstances.

Consequently, the decision to bring a case before a court with the conclusion on the need to resume criminal proceedings based on newly discovered circumstances is the exclusive responsibility of the prosecutor. When considering such a decision of the prosecutor, the court, having studied the case materials, decides either to reject it or to cancel the court decisions in the case.

In view of this, the Supreme Court considers that the rule of the criminal procedure law on the possibility to appeal against the decision of the prosecutor to terminate the criminal proceedings based on newly discovered circumstances initiated by him only to a higher prosecutor is justified and complies with the principles of the criminal procedure.

According to the General Prosecutor's Office, there is a gap in the CPC due to the absence of the right of the persons concerned to appeal to a court against the decision of the prosecutor on the termination of the criminal proceedings based on newly discovered circumstances, therefore, in order to ensure everyone’s constitutional right to judicial protection, appropriate amendments should be made to the criminal procedure law.

The Investigative Committee believes that the absence in the CPC of a rule on the right of the persons concerned to appeal against the prosecutor’s decision to terminate criminal proceedings initiated by him on newly discovered circumstances limits the constitutional right of convicted, victims and other persons concerned whose rights and legitimate interests have been violated by termination of proceedings on newly discovered circumstances, to protect their rights and freedoms by a competent, independent and impartial court (Article 60 of the Constitution). An appropriate addendum to the criminal procedure law will contribute to the implementation of the provisions of Article 22 of the Constitution, according to which all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination.

The Ministry of Justice believes that the procedure for appealing against the decision of the prosecutor to terminate the proceedings based on newly discovered circumstances to a higher prosecutor, established by the criminal procedure law, does not exclude the possibility to restore the violated rights of individuals by seeking judicial protection on the basis of the provisions of the Constitution (Article 60), international legal instruments (Article 8 of the Universal Declaration of Human Rights, Article 2 of the International Covenant on Civil and Political Rights), Law of the Republic of Belarus “On the Prosecutor's Office of the Republic of Belarus” (Article 9.3). The Ministry of Justice does not see any gaps in the legislation (legal regulation of relevant public relations).

The National Centre of Legislation and Legal Research notes that the absence of the right to appeal against the decision of the prosecutor to terminate the proceedings based on newly discovered circumstances to the court does not fully comply with the institution of procedural appeal established in the domestic criminal proceedings, and also does not fully comply with the provisions of the Constitution. Given the constitutional provisions, the priority of ensuring the protection of personal rights in criminal proceedings, the need to implement a systematic approach in legal regulation of procedural appeals in the criminal proceedings, the Centre does not see any reason to limit the right to appeal against the decision of a prosecutor to terminate criminal proceedings uninitiated by him due to newly discovered circumstances to a court.

The Belarusian National Bar Association notes that, due to the restriction of the possibility of judicial review of the prosecutor’s decision to terminate the proceedings initiated by him due to newly discovered circumstances, the balance of protecting the constitutional values ​​such as justice and legal certainty is violated, which entails prejudice to the individual’s rights guaranteed by the Constitution, protection and restoration of which are the constitutional goal of justice. The possibility of appealing against the said decision of the prosecutor to a court laid down in the CPC would increase the effectiveness of the institution of judicial review of the court decisions that have entered into legal force, as well as increase individuals' access to justice to protect their rights.

2. The Constitution stipulates that the Republic of Belarus is a state based on the rule of law; the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State; the State shall take all measures at its disposal to create the domestic and international order necessary for the exercise in full of the rights and liberties of the citizens of the Republic of Belarus that are specified in the Constitution (Articles 1.1, 2.1, 59.1).

These constitutional rules are interconnected with Articles 60.1 and 115.3 of the Constitution, which guarantee everyone judicial protection of one’s rights and freedoms, including the right to appeal against rulings, sentences and other judicial decisions, as well as with the provisions of a number of international legal instruments.

Thus, according to 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.

The International Covenant on Civil and Political Rights provides that when a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him (Article 14.6).

Therefore, it follows from the above provisions of the Constitution and international legal instruments that justice, in its essence, can be recognised as such only if it meets the requirements of fairness and ensures effective restoration of rights. The Constitutional Court considers that the legislator, in order to guarantee the protection and restoration of the rights of participants in criminal proceedings, shall provide effective legal mechanisms for reviewing judicial decisions in criminal cases that have entered into legal force.

3. In order to ensure the effective protection of the constitutional rights and freedoms of individuals (Article 60.1 of the Constitution), the CPC provides for additional legislative mechanisms for such protection by means of criminal proceedings based on newly discovered circumstances.

Chapter 43 of the CPC establishes the circumstances and the procedure for resuming criminal proceedings due to newly discovered circumstances. Thus, the sentence, ruling and judgment of the court that has entered into legal force may be repealed and the criminal proceedings resumed due to newly discovered circumstances (Article 418.1 of the CPC). The right to initiate such proceedings belongs to the prosecutor (Article 420.1 of the CPC). If the prosecutor finds no reason for initiating proceedings due to newly discovered circumstances, he shall refuse to do so by his motivated ruling and shall notify the applicants thereof. This ruling may be appealed to a higher prosecutor or to a court (Article 420.5 of the CPC).

These provisions are consistent with the provisions of Article 139.2 of the CPC, which determine that complaints against decisions of the criminal prosecution body to refuse to initiate criminal proceedings, to terminate the preliminary investigation of the criminal case, to terminate criminal prosecution, or to refuse to initiate proceedings due to newly discovered circumstances shall be submitted to the relevant prosecutor or to a court at the place of investigation of a criminal case or consideration of an application or report of a crime.

At the end of the examination or investigation of newly discovered circumstances, if there are grounds for resuming the criminal proceedings, in accordance with Article 421.1 of the CPC, the prosecutor shall forward the case with his opinion, a copy of the sentence in the cases provided for in Articles 418.2.1 – 418.2.3 of the CPC, or materials of the examination or investigation in the case provided for in Article 418.2.4 to the relevant court, guided by article 422.1 of the CPC.

In the absence of grounds for resuming the criminal proceedings, the prosecutor, by his motivated ruling, shall terminate the proceedings initiated by him due to newly discovered circumstances; the decision to terminate the proceedings due to newly discovered circumstances shall be brought to the attention of the persons concerned; these persons shall be given explanations that they are entitled to appeal against the decision to a higher prosecutor (Articles 421.2 and 421.3 of the CPC).

In that way, the criminal procedure law does not provide for the possibility to appeal to a court against the decision of the prosecutor on the termination of the criminal proceedings based on newly discovered circumstances.

When analysing the current legal regulation and law enforcement practice, the Constitutional Court draws attention to the following.

According to Article 9.3 of the Law “On the Prosecutor's Office of the Republic of Belarus”, an individual, including an individual entrepreneur, or an organisation considering that the decision (actions) of the prosecutor infringed their rights or legitimate interests, shall have the right to appeal against such a decision (actions) to a higher prosecutor and (or) to a court.

In the application submitted to the Constitutional Court it is noted that Ms O.P. Sadovskaya, in accordance with the above provision of the Law “On the Prosecutor's Office of the Republic of Belarus”, appealed against the decision of the prosecutor of the Molodechno district to terminate the criminal proceedings initiated by him due to newly discovered circumstances to the prosecutor of the Minsk region, the Prosecutor General of the Republic of Belarus, and then to the court of the Molodechno district, which left the prosecutor’s decision without changes and dismissed the applicant's complaint.

The presidium of the Minsk regional court canceled the decision of the district court and terminated the proceedings on this complaint against the decision of the prosecutor, motivating such a decision by a violation by the district court of the procedure established by Article 421.3 of the CPC, according to which the decision of the prosecutor to terminate the proceedings due to newly discovered circumstances can be appealed to a higher prosecutor , as well as on the basis of the content of Articles 139.1 and 139.2 of the CPC, according to which the said decision of the prosecutor can only be appealed to a higher prosecutor.

In that way,  the right of individuals to appeal against the decisions (actions) of the prosecutor, which, in the opinion of individuals, infringe their rights or legitimate interests, to a higher prosecutor and (or) to a court, enshrined in the Law “On the Prosecutor's Office of the Republic of Belarus”, in the absence in the criminal procedure of a rule law on the right of the persons concerned to appeal to a court against the decision of the prosecutor to terminate the criminal proceedings initiated by him due to newly discovered circumstances causes in practice ambiguous understanding and application of the relevant legislative rules when individuals bring before the court their complaints against the said decisions of the prosecutor.

In the decision of 3 April 2001 “On the Right of Individuals to Appeal to the Court on Matters within Criminal Procedural Relations” the Constitutional Court noted that the CPC establishes the procedure according to which the actions and decisions of the body conducting the criminal process may be appealed to the prosecutor; therefore, this ensures the fastest (operational) settlement of the complaint within the same authority and elimination of violations of the rights of individuals who filed a complaint. This is also due to the competence of the prosecution authorities, whose responsibilities, according to the Constitution (Article 125) and the Law “On the Prosecutor's Office of the Republic of Belarus” (Article 2), include supervision over the bodies of inquiry and preliminary investigation. However, such a procedure should not be perceived as excluding the possibility, by applying for judicial protection, to restore the violated fundamental rights of individuals granted to them by the Constitution and laws, therefore, the legislation should be harmonised in such a way that the right of individuals to judicial protection is not excluded.

The Constitutional Court noted that due to the absence in the criminal procedure law of rules providing for the possibility to appeal against the prosecutor’s decision to terminate the proceedings based on newly discovered circumstances initiated by him, individuals, whose rights and legitimate interests are affected by such a decision, can not fully exercise their constitutionally guaranteed right to judicial protection.

4. According to the Constitution, the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and the laws, and specified by the State's international obligations (Article 21.3); all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination (Article 22); 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).

Article 60 of the Constitution, which guarantees everyone the protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law, corresponds to the provisions of Article 8 of the Universal Declaration of Human Rights, as well as Article 6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, according to which in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

The Constitutional Court considers that from the above provisions of the Constitution and international legal acts it follows that the realisation of the constitutional right to judicial protection by individuals cannot be limited, since this right and guarantees of its realisation cannot impede the interests specified in Article 23.1 of the Constitution.

The Constitutional Court notes that criminal proceedings based on newly discovered circumstances (Section XIII of the CPC) are an independent stage of the criminal process, combining as elements of pre-trial proceedings – the prosecutor initiating proceedings due to newly discovered circumstances, organising the examination or investigation of these circumstances in accordance with general conditions of conducting a preliminary investigation, forwarding the case with his opinion or materials of examination or investigation to the relevant court (Articles 420.1, 420.2, 420.3, 421.1 of the CPC), as well as consideration by the court of a criminal case due to newly discovered circumstances (Article 423 of the CPC).

According to Article 423 of the CPC, after having considered the conclusion of the prosecutor on resuming criminal proceedings based on newly discovered circumstances, the court shall make a ruling or a judgment either on repeal of a sentence, ruling, judgment and on transfer of the case to the prosecutor for a new preliminary investigation, to a relevant court for a new case consideration (Article 423.1), or on the termination of criminal proceedings, when a new preliminary investigation or case consideration is not required (Article 423.2), or on rejection of the conclusion of the prosecutor (Article 423.3).

Therefore, the right to make the final conclusion about whether a newly discovered circumstance has occurred and whether a new preliminary investigation or a new consideration of the case is required belongs only to the court. Along with this, the absence of the criminal procedure rules that would provide for the possibility of judicial appeal against the decision of the prosecutor to terminate the criminal proceedings initiated by him due newly discovered circumstances essentially means that the prosecutor is empowered to finally decide whether there are new circumstances entailing the abolition of the sentence, ruling, judgment of the court.

The said gap of legal regulation, in the opinion of the Constitutional Court, is of constitutional and legal significance, since the resumption of criminal proceedings due to newly discovered circumstances as a special stage of the criminal process includes, among other things, a new consideration of the case in court to ensure the protection of the constitutional rights and freedoms of individuals.

At the same time, the Constitutional Court also draws attention to the provisions of the criminal procedure law providing for the applicants' appeal against the decision of the prosecutor on refusal to initiate proceedings due to newly discovered circumstances to a higher prosecutor or to a court (Article 420.5 of the CPC), while the decision to terminate the proceedings due to newly discovered circumstances may be appealed by the persons concerned only to a higher prosecutor (Article 421.3 of the CPC).

The foregoing shows different approaches of the legislator to the regulation of similar legal relations concerning the appeal by individuals against the decisions of the prosecutor to initiate the criminal proceedings due to newly discovered circumstances, to conduct an examination or investigation of newly discovered circumstances. In the opinion of the Constitutional Court, this requires the full implementation in the criminal procedure law of the constitutional provision on the equality of all before the law and the right to equal protection of rights and legitimate interests.

The Constitutional Court, based on the interrelated provisions of Articles 2.1, 21.1, 22, 59.1, 60.1 of the Constitution, considers that in order to ensure and to protect the constitutional rights and freedoms of individuals in the criminal process, to eliminate a gap in the existing legal regulation the legislator should establish the right of the persons concerned to appeal to the court against the decision of the prosecutor to terminate the criminal proceedings initiated by him due to newly discovered circumstances in the criminal procedure law.

In view of the foregoing, by virtue of Articles 116.1 and 116.7 of the Constitution of the Republic of Belarus, Articles 22.3.8 and 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 74.2, 75, 77, 80, 84, 85.17 and 160 of the Law of the Republic of Belarus “On Constitutional Proceedings” the Constitutional Court of the Republic of Belarus

RULED:

1. In order to exercise the constitutional right of everyone to judicial protection, ensure the rule of law and eliminate a gap in the existing legal regulation to recognise the need to make amendments to the Criminal Procedure Code of the Republic of Belarus establishing the right of the persons concerned to appeal to the court against the decision of the prosecutor to terminate the criminal proceedings initiated by him due to newly discovered circumstances.
2. To suggest to the Council of Ministers of the Republic of Belarus to prepare the relevant draft law amending the Criminal Procedure Code of the Republic of Belarus and to submit it to the House of Representatives of the National Assembly of the Republic of Belarus under the established procedure.
3. The present Decision shall come into force from the date of its adoption.
4. 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