11 December 1998 № J-74/98
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 three of Article 404 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: S.A. Sviridova - Deputy Head 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 three of Article 404 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; 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 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.
Part three of Article 404 of the Code of Criminal Procedure of the Republic of Belarus was subject to examination (SZ of BSSR, 1996, No. 28, art. 375; 1978, No. 2, art. 30; 1985, No. 5, art. 65).
Under Article 404 of the Code of Criminal Procedure of the Republic of Belarus (hereafter - CCP) the court, having found the received from the inquiry body materials on the crimes specified in Article 400 of CCP to be sufficient for consideration, shall make a ruling on taking a criminal case, bringing of an offender to trial, if it is necessary chooses a preventive punishment and examines the case in court session or returns the materials for making inquiry or preliminary investigation and in instances of absence of the grounds for taking the criminal case shall refuse to institute criminal proceedings. A judge may individually make a ruling on taking criminal case, bringing an offender to trial and fixing the case for examination in court session. The ruling of the court or judge's ruling shall contain the wording of charge with indication of article of the criminal law under which a person was brought to trial. The ruling of the court and judge's ruling shall be handed to the accused.
The President of the Republic of Belarus in his proposal has put the question on the examination of the constitutionality of part three of Article 404 of CCP which entrusts the court (judge) with the obligation to formulate the charge in the ruling about the institution of the case that is, according to the opinion of the President, contradicts the Constitution of the Republic of Belarus and the norms of International Covenant on Civil and Political Rights.
Having heard Mrs V.V. Podgrusha - judge-speaker, representatives of the litigants, analyzed the provisions of the Constitution, the Code of Criminal Procedure and other enforceable enactments and other international legal acts, studied the case materials, the Constitutional Court has established the following.
The institute of protocol form of pre-trial preparation of the materials was originally introduced into the legislation of criminal procedure in order to simplify the procedure of the proceedings on hooliganism. In the future this procedure has been spreaded to the cases on the crimes envisaged by Articles 94, 96 part one, 120, 153 part one, 155 part one, 156, 160 part one, 161 part one, 163 part one, 165 part one, 1943 , 201 part one, 2072 part one of the Criminal Code of the Republic of Belarus.
In accordance with the effective wording of section eight of CCP regulating the issues of protocol form of pre-trial preparation of the materials the inquiry bodies shall determine on or before ten days period the circumstances of the committed crime and personality of the offender, receive explanations from the offender, eye-witnesses and other persons, obtain on demand the information on the presence or absence of (previous) convictions of the defender, reference from the place of his work or studies and other materials which are important for the examination of the case in the court. The offender is taken away the obligation to appear on the summons of the inquiry bodies or the court and to inform them about the change of residence.
There shall be made the minutes on the circumstances of the committed offence which point to actual data confirmed the presence of the offence and guilt of the offender, offence qualification under the article of the Criminal Code of the Republic of Belarus and other essential circumstances on the case. All the materials as well as the list of persons who are subjects to be summoned in the court shall be filed to the minutes. Having found it impossible to apply to the offender of the measures of public influence, the head of inquiry body shall approved the minutes and then all the materials shall be submitted to the offender for familiarization, after that the minutes and the materials according to the sanction of public prosecutor are forwarded to the court.
Under Article 404 of CCP the court (judge) is entrusted with the obligation to examine the received materials and, if they would be found to be sufficient for examination in the court session, to deliver the ruling on institution of the criminal case, to state in it the wording of charge, to bring the offender to trial, to choose him, in instance of necessity, the preventive punishment and examine the case in the court session.
Having estimated the norm of part three of Article 404 of CCP which entrusts the court with the obligation to formulate the charge on the criminal case brought on the grounds of the materials received in the procedure of protocol form of pre-trial preparation, the Constitutional Court found it to be unconstitutional on the following grounds.
Under Article 6 of the Constitution state power in the Republic of Belarus is exercised on the principle of divisions of powers between the legislature, executive and judiciary. State bodies within the confines of their powers, shall be independent: they shall co-operate among themselves acting on the principle of checks and balances. The given constitutional norm thus supposes the independent execution by each branch of power of the belonged only to it functions and powers. The exclusive competence of the judiciary in accordance with Chapter 6 of the Constitution shall be administering justice.
According to the law of criminal procedure inquiry and preliminary investigation shall be carried out by specially authorized bodies. Support of state charges in the courts is vested by Article 125 of the Constitution in the Procurator's office.
The Constitutional Court considers that no other body except for the court is authorized to administer justice and the court shall not carry out the function of the prosecutor. Formulation by the court of the charge on the instituted criminal case is not in conformity with the principles of its independence, objectivity and impartiality in administering justice.
Article 10 of the Universal Declaration of Human Rights proclaims 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 the International Covenant on Civil and Political Rights proclaims that all persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
Under the Procedures of effective execution of the Main principles of the independence of judicial bodies approved by the Resolution of the Economic and Social Council of the United Nations none of the judges is demanded to carry out functions which are incompatible with the principles of independence of judicial bodies (Procedure 2).
Such an understanding of the court status has found its ensuring in Article 60 of the Constitution under which everyone shall be guaranteed protection of one's rights and liberties by a competent, independent and impartial court of law.
Independence and impartiality of justice is based on the right of the court to make a decision as a body of justice concerning the brought criminal charge. Meanwhile the effective legislation of criminal procedure does not exclude the possibility of formulation of the charge on the concrete case, the proceedings on which have not been carried out in protocol form of the pre-trial preparation of the materials and making on it a verdict by the same composition of the court (judges) which formulated the charge.
While formulating the charge against concrete person and examining the same criminal case the court is carrying out simultaneously two incompatible in their purpose functions: accusation and settlement of the case on the merits that is contradicted to the general principles of the criminal proceedings determining the requirements to the justice and which are obligatory for all forms of the process, the protocol form of pre-trial preparation of the materials included. Thus inadmissibility of combination of different procedure functions - charge and justice - is stipulated in Article 27 of CCP which among the circumstances removing a judge from participation in the examination of a criminal case contains, in particular, the participation of a judge in the given case as a person who has made the inquiry, investigator, public prosecutor, social accuser. The Constitutional Court deems the entrusting of the court against the provisions of the Constitution and principles of criminal proceedings with the obligation to formulate the charge on the criminal case may be considered as predetermination by them of the issue on guilt of a person and making of a verdict of guilty, whereas a judge, having formulated the guilt, may be turned out to be bound by his decision.
The provision of Article 404 of CCP which shall entrust the court with the obligation to formulate the charge is at variance with the enshrined in Article 115 of the Constitution principle of administering justice on the basis of the adversarial proceedings and equality of the parties involved in the trial. This constitutional principle supposes such a proceedings when the functions of the court on administering of justice are strictly delimited from the functions of litigants in the proceedings: the court shall be bound to secure a fair and impartial examination of the case affording the litigants equal possibilities for performing the functions of the prosecution and defence.
Under Article 62 of the Constitution everyone shall have the right to legal assistance to exercise and defend his rights and liberties, including the right to make use, at any time, of the assistance of lawyers and one's other representatives in court, other state bodies, bodies of local government, enterprises, establishments, organizations and public associations, and also in relations with officials and citizens.
Under point three of Article 14 of International Covenant on Civil and Political Rights in the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality, including to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choice (sub-item "b"). Article 5 of the Covenant envisages that nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any capacity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.
Whereas by protocol form of pre-trial preparation of the materials on the cases on the crimes envisaged in Article 404 of CCP the procedure of taking legal actions against a person as an accused before sending the materials to the court is excluded, the person called to account shall be restricted in the possibility to protect one's rights and lawful interests both personally and with the help of defender, that is at variance with Article 62 of the Constitution and international norms. Meanwhile when using the protocol form of pre-trial preparation of the materials a person with respect to whom the criminal prosecution is carried out, the right to defence shall be secured to a full extent.
The Constitutional Court emphasizes that finding of part three of Article 404 of CCP, which entrusts the court with the obligation to formulate charge to be at variance with the Constitution and international legal acts, does not excluded the possibility to use the institute of protocol form of pre-trial preparation of the materials in criminal procedure by observance of all requirements on due ensuring of the rights and lawful interests of all participants of the process. The Constitutional Court, in this connection, means that finding of part three of Article 404 of CCP to be at variance with the Constitution and international legal acts, i.e. the part which obliges the court (judge) to formulate the charge, practically excludes the right of the court (judge) to bring the criminal case on the grounds of the presented to the court minutes, as the specified procedure actions are interconditioned. Whereas the formulation of the charge may take place if the criminal case has been brought, so the decision on bringing the criminal case shall made by specially authorized bodies before sending of the case to the court.
With the possibility of preparation and adoption of the relevant draft law taking into account and in order to exclude gaps on law regulation, the Constitutional Court guided by Article 9 of the Law "On the Constitutional Court of the Republic of Belarus" considers it necessary to specify the term during which part three of Article 404 of CCP found to be unconstitutional, shall continue to be effective till the adoption by the lawmaker in the specified term of the measures securing the bringing of the norms of the criminal legislation of procedure into line with the present Judgment.
On the basis of Articles 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 three of Article 404 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 as well as null and void since 1 July 1999.
2. For the National Assembly of the Republic of Belarus to make alterations and addenda to the Code of Criminal Procedure of the Republic of Belarus on or before 30 June 1999 in accordance with the present Judgment.
3. 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".
4. 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