1 December 1998 № J-73/98
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, 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 the proposal on verification of the constitutionality of part five of Article 92 of the Code of Criminal Procedure of the Republic of Belarus: A.I. Lukashov - Head of the section of legislation on the issues of defence and public 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 sector of criminal and administrative legislation of the department of expert examination of draft laws of the Main expert and law department of the Secretariat of the House of Representatives;
of the Council of the Republic of the National Assembly of the Republic of Belarus: L.Y. Senuta - main specialist of expert and law department of the Secretariat of the Council of the Republic
has examined in open Court session the case "On the conformity between the Constitution and part five of Article 92 of the Code of Criminal Procedure 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; I.N. Zhdanovich - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; O.A. Bozhelko - Procurator-General of the Republic of Belarus; O.G. Sergeeva - Deputy Minister of Justice of the Republic of Belarus.
The proceedings were brought by the Constitutional Court of 7 July 1998 as a result of the proposal of the President of the Republic of Belarus on the basis of Article 116 of the Constitution, 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 President of the Republic of Belarus in his proposal has put the question on the examination of the constitutionality of part five of Article 92 of the Code of Criminal Procedure of the Republic of Belarus under which the time of familiarization of the accused and his defender with the criminal case materials while calculating the term of detention as a measure of preventive punishment is not taken into account (SZ of the BSSR, 1990, No. 2, art. 16).
Having heard Mrs R.I. Filipchik - judge-speaker, representatives of the litigants, analyzed the provisions of the Constitution, the Code of Criminal Procedure and other enforceable enactments, as well as instruments of international law, studied the available case materials the Constitutional Court has established.
Article 92 of the Code of Criminal Procedure of the Republic of Belarus (hereafter CCP) envisages the following.
Detention while investigating criminal offences may not be extended for more than two months. This term may be extended by region, city public prosecutors, military prosecutor of garrison and equal with them public prosecutor in instance of impossibility to finish the investigation and absence of the grounds for the change of preventive punishment - till three months. Further extension of the term is possible due to special complexity of the case only by public prosecutor of oblast, city of Minsk and equal with them public prosecutor - till six month from the day of detention.
The extension of the term of detention for more than six months is permitted in exclusive instances and only in regard to the persons charged with grave offences. This extension is carried out by Deputy Procurator-General of the Republic of Belarus - till one year and by Procurator-General of the Republic of Belarus - till one year and a half. The issue of detention of the accused for the term of more than one year shall be preliminary considered by the collegium of the Procurator's Office of the Republic of Belarus.
Further extension of the term is inadmissible, the accused in detention shall be released without delay.
The materials of the finished by investigation criminal offence shall be presented for familiarization to the accused and his defender one month before the expiry of the time limit of detention determined by part two of the aforesaid Article at the latest.
The time of familiarization of the accused and his defender with the criminal case materials while calculating the term of detention as a preventive measure is not taken into account.
When the court returns the case for new investigation on which the term of detention of the accused has been expired and under the circumstances of the case the preventive measure as a detention may not be changed the extension of the term of detention shall be carried out by the public prosecutor who supervises the investigation within one month from the moment he received the case. Further extension of the term shall be carried out taking into account the time of detention of the accused before the submission of the case to the court by way of and within the limits specified in parts one, two, and five of the Article in question.
The ruling on the extension of the term of detention may be appealable.
In instance of repeated detention of the same person on the same case after the withdrawal of arrest by the judge, the terms of detention determined by the given Article shall be calculated with an allowance for the time of detention of the person in question before the withdrawal of arrest by the judge.
Thus according to Article 92 of CCP detention while investigating criminal offences may not be continued for more than two months; in instance of special complexity of the case and in other exclusive instances in accordance with the decision of the relevant public prosecutor the term of detention may be extended for one year and a half. Further extension of the term of detention in accordance with part three of Article 92 of CCP is not allowed and the accused in detention is subject to release without delay. At the same time part five of Article 92 of CCP stipulates that the time of familiarization of the accused and his defender with the materials of the criminal case while calculating the term of detention as a preventive punishment is not considered.
The Constitutional Court while examining the constitutionality of the norm in question has come to the following conclusions.
Under Articles 21 and 23 of the Constitution the State shall guarantee the rights and liberties of the citizens of Belarus that are enshrined in the Constitution and the laws, and specified in the state's international obligations. Restrictions of personal rights and liberties shall be permitted only in the instances specified in law, in the interest of national security, public order, the protection of the morals and health of the population as well as rights and liberties of other persons.
Under Article 25 of the Constitution the State shall safeguard personal liberty, inviolability and dignity. The restriction or denial of personal liberty is possible in the instances and under the procedure specified in law. A person who has been taken into custody shall be entitled to a judicial investigation into the legality of his detention or arrest.
The given norms of the Constitution confirm that no one shall be subjected to arbitrary arrest or detention and deprived of his liberty except in accordance with the law. The Constitution proclaims also the right of the accused to procedural remedies and binds the state to secure its realization.
According to the requirements of the norms of Chapter one of CCP "Basic provisions" no one shall be subjected to arrest except on the grounds of the decision of the court or under the sanction of the public prosecutor (Article 7). Part one of Article 91 of CCP envisages that detention as a preventive punishment shall be applied with the observance of the requirements of the Provision on preliminary detention in the Republic of Belarus and Article 7 of CCP on the cases on the offences for which the law envisages imprisonment for the term of more than one year. In the exclusive instances this measure of punishment may be applied on the cases on the offences for which the law envisages the imprisonment for the term of more than one year.
In accordance with part four of Article 200 of CCP the materials of the finished by investigation criminal case shall be presented for familiarization to the accused and his defender on or before one month before the expiry of time limit of the term of detention specified by the norms of the legislation of criminal procedure. The accused in this case shall choose between more deep preparation for the trial and quick judicial procedure. To a certain extent he is compelled to undertake the results of this choice.
Under part seven of Article 200 of CCP the accused and his defender may not restrict themselves in time which they need for familiarization with the case materials. However, if the accused and his defender obviously delay familiarization with the case materials, the investigator has the right to determine the fixed term of familiarization with case materials by his motivated decision approved by public prosecutor.
During the time of familiarization with the case materials of both the accused and his defender, the accused in detention is under the same conditions of isolation and the same regime as over the time of his detention as a preventive punishment .
Detention is the most strict preventive punishment which essentially restricts the right of freedom and personal inviolability. Therefore instances, procedure and terms of application of this measure of punishment shall be regulated by law in detail.
The norm of part five of Article 92 of CCP under verification practically makes it possible to restrict the liberty of the accused during the period of familiarization of him and the defender with the criminal case materials on the expiry of the time limit of detention without making relevant decision by the competent bodies envisaged by Article 7 of CCP.
Under Article 8 of the Constitution the Republic of Belarus shall recognize the supremacy of the universally acknowledged principles of international law and ensure that its laws comply with such principles.
Under the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment adopted by UN General Assembly Resolution of 9 December 1988 no person may be kept under detention pending investigation or trial except upon the written order of a judicial or other authority provided by law (Principle 37); a detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful (Principle 32); a person detained on a criminal charge shall be entitled to trial within a seasonable time or to release pending trial (Principle 38).
Article 9 of the International Covenant on Civil and Political Rights stipulates that everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
Under Article 14 of the aforesaid Covenant in the determination of any criminal charge against him, everyone shall be entitled to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing, to be tried without undue delay.
In this connection the Constitutional Court considers that detention of the accused during the time of familiarization of him and the defender with the case materials shall be carried out in accordance with the law on the grounds of the decision of the court or other competent body.
The analysis of the effective norms of CCP and practice of their application specifies that the accused and his defender in certain instances owing to circumstances beyond their control are obliged to familiarize with criminal case materials for a long time that results in exceeding of the time limit of detention envisaged by part two of Article 92 of CCP. This may be caused by both the large scope of a criminal case and by the number of persons who under the norms of CCP shall have the right to familiarization with criminal case materials. The Constitutional Court considers that the improved legislative regulation of these issues (for example, giving the accused and his defender of the copies of case materials, first of all copies of the documents on procedural actions where the accused is a member etc.) may be one of the possible guarantees of the right of the accused to timely and complete familiarization with criminal case materials, as well as quick trial. Such an approach is envisaged in the criminal legislation of procedure of many European States.
The Constitutional Court emphasizes that in accordance with Articles 45 and 451 of the Criminal Code of the Republic of Belarus and Article 317 of CCP detention pending trial is included by the court in the term of punishment while passing a sentence. The analysis of the legislation and practice of its application signifies that the time of detention of the accused during his familiarization and familiarization of the defender with criminal case materials is included by the court in the term of punishment.
Judicial protection is one of the constitutional guarantees of the protection of the rights and freedoms.
According to Article 2201 of CCP the complaints against the application of the preventive punishment as detention, as well as against the extension of the term of detention shall be lodged to the court by detained person, his defender or lawful representative through the person pursuing investigation or by investigator. Detention on the expiry of the time limit envisaged by part two of Article 92 of CCP only for familiarization with criminal case materials without the sanction of the bodies or public officials specified in law shall restrict the right of the accused to judicial protection.
Estimating the literal meaning of the criminal norms of procedure and practice of their application the Constitutional Court emphasizes that the accused in detention during the familiarization with criminal case materials over the time limit of detention envisaged by part two of Article 92 of CCP is formally restricted in the possibility to lodge a complaint against the detention, whereas in this case the passing of the decision by the court or by relevant public prosecutor on the extension of the term of detention is not envisaged.
Under Article 60 of the Constitution 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. Under Article 137 of the Constitution laws shall be promulgated on the basis of, and in accordance with the Constitution which has the supreme legal force. Where there is a discrepancy between a law and the Constitution, the Constitution shall apply. Article 142 of the Constitution enshrines that 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 shall apply in the particular parts thereof that are not contrary to the Constitution. Therefore the Constitutional Court considers that the right to judicial protection shall be ensured for the accused in detention during the period of familiarization of him and familiarization of the defender with criminal case materials before the expiry of the time limit of detention envisaged by part two of Article 92 of CCP.
In order to secure the protection of the rights and lawful interests of the accused, carry out proper justice with the real terms taking into account which are necessary for preparation and adoption of a relevant law the Constitutional Court guided by Article 9 of the Law "On the Constitutional Court of the Republic of Belarus" deems it necessary to specify the term during which the norm of part five of Article 92 of CCP shall be bring into line with the Constitution.
On the basis of Article 116 of the Constitution, Articles 5, 6, 9, 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To find part five of Article 92 of the Code of Criminal Procedure of the Republic of Belarus to be at variance with the Constitution of the Republic of Belarus and instruments of international law to the extent that it contains no rule on the detention of the accused on the grounds of the written ruling of the court or other body specified in law during the familiarization of the accused and his defender with the criminal case materials on the expiry of the time limit of detention envisaged by part two of Article 92 of the Code of Criminal Procedure.
2. Before making alterations in the Code of Criminal Procedure under Articles 137 and 142 of the Constitution, Article 60 of the Constitution of the Republic of Belarus shall be directly applied according to which the accused, his defender or lawful representative shall have the right to appeal against the legality and validity of detention during familiarization of him and familiarization of the defender with the criminal case materials on the expiry of the time limit of detention envisaged by part two of Article 92 of the Code of Criminal Procedure.
3. For the National Assembly of the Republic of Belarus to make necessary amendments to the Code of Criminal Procedure of the Republic of Belarus on or before 30 June 1999.
4. To publish the present Judgment in ten days time from the date of its passing in "Narodnaya gazeta" and "Zvyazda", as well as in "Vedamastsi Natsiyanalnaga skhodu Respubliki Belarus".
5. The Present Judgment shall come into force from the date of its promulgation, shall be final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the