Acts of the Constitutional Court
JUDGMENT OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
25 March 1999 № J-77/99
On interpretation of the Judgment of the Constitutional Court of the Republic of Belarus of 19 December 1994 "On the conformity between the Constitution and the note to Article 177 of the Criminal Code of the Republic of Belarus"

     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 representatives:

     of the House of Representatives of the National Assembly of the Republic of Belarus: N.A. Karpovich - Deputy Head 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 interpretation of the Judgment of the Constitutional Court of the Republic of Belarus of 19 December 1994 "On the conformity between the Constitution and the note to Article 177 of the Criminal Code of the Republic of Belarus".

     The Court session was attended by: A.V. Ivanovski - Deputy Procurator-General of the Republic of Belarus; O.G. Sergeeva - Deputy Minister of Justice of the Republic of Belarus.

     The Constitutional Court in its Judgment of 19 December 1994 had found certain notes to Article 177 of the Criminal Code of the Republic of Belarus to be at variance with the Constitution of the Republic of Belarus.

     In connection with multivalued estimation in lawmaking and lawapplicable practice of the Judgment of the Constitutional Court of 19 December 1994 in part concerning the issues of the liability of next of kin and members of family of a person who committed a crime for misprision and beforehand non-promised concealment, as well as taken into account the request of the Procurator's office of the Republic of Belarus on the explanation of the specified Judgment, the Constitutional Court has brought of 4 March 1999 the proceedings on the case "On interpretation of the Judgment of the Constitutional Court of the Republic of Belarus of 19 December 1994 "On the conformity between the Constitution and the note to Article 177 of the Criminal Code of the Republic of Belarus".

     Having heard the representatives of the Chambers of the National Assembly of the Republic of Belarus, analyzed the norms of the effective Criminal Code of the Republic of Belarus, new draft Criminal Code, adopted in first reading by the House of Representatives of the National Assembly of the Republic of Belarus, Model Criminal Code for CIS Member-States, investigating and court practice as well as the norms of constitutional and criminal legislation of other states, the Constitutional Court emphasizes the following.

     Under Article 27 of the Constitution of the Republic of Belarus no one shall be compelled to be a witness against oneself, members of one's family or next of kin. Evidence obtained in violation of the law shall have no legal force.

     Article 27 of the Constitution practically secures the right of next of kin and members of family of a person who is suspected or accused in making a crime or the defendant not to give evidence against themselves and against the person in question. The guarantee of that right is stipulation in the legislation of the provision according to which a person is subject to no criminal liability for the refuse from giving evidence, if the evidence is turned against his next of kin or members of his family. The right of next of kin and members of family of a person who committed a crime not to give information to state bodies which directs against the person in question, that supposes the exclusion of criminal liability of the specified in the Article persons for misprision on the subject of a crime, follows from Article 27 of the Constitution.

     While explaining the Judgment of the Constitutional Court of 19 December 1994 in part concerning misprision on a crime, the Constitutional Court pays attention to the fact, that misprision on a crime according to the criminal legislation may be expressed both in misprision on a crime under verification and in misprision on known for certain already committed crime. The degree of social danger of misprision shall depend both upon the gravity of a crime on which the relevant authorities had not been informed and upon the nature of the committing by a misprisioner inactivity.

     Since by informing on the crime under preparation there is a real possibility to prevent its commitment and thereby to prevent the damage which may be caused to the objects which are secured by law, and misprision on the preparation of a crime prevents the forming of the order which is necessary for the full realization of human rights and freedoms, it is of importance to observe differential approach to the imposition of the liability for the specified misprision as well as misprision on the crime committed when harmful consequences have already come.

     The given differences of the forms of misprision taken into account the formulation has been given the norm of Article 406 of draft Criminal Code of the Republic of Belarus under which it is expected to establish more strict liability for misprision on known for certain grave or particularly grave crime under verification as compared with misprision on known for certain committed particularly grave crime and misprision on known for certain person who committed that crime or on the location of the person in question.

     In this connection the Constitutional Court emphasizes that misprision on particularly grave crime, which is a threat of life for people, shall be characterized by much more social danger.

     Under Article 2 of the Constitution an individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State. In the system of human values the Constitution and international legal acts shall specially single out the life of an individual. The proclaimed by the Constitution the right of everyone to life as an alienable natural right owing to its supreme value shall have the priority in the system of all other constitutional rights of the citizens. Under Article 24 of the Constitution the State shall protect the life of the individual against any illegal infringements. With the purpose of protection of the life as particularly safeguarding by the Constitution object the legislation envisages the strict criminal liability for murder and, especially, it is committed by the way which is dangerous for all or attended by other aggravating circumstances as well as for other particularly grave crimes which are dangerous for the life of people. Prevention of crimes is an important task of the state which, under Article 59 of the Constitution, 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 which are enshrined in the Constitution. The task to prevent the crimes is also set before criminal legislation and for the securing of which different criminal law institutes are being used including the institute of criminal involvement. The establishment of criminal liability for misprision on the crimes under preparation, which are of a heightened social danger, shall have the aim to prevent of the specified crimes that is a guarantee for the protection of most important safeguarded by the law values among which the life of an individual shall take priority.

     The enshrined by Article 27 of the Constitution right of a citizen not to be compelled to be a witness against oneself, members of one's family or next of kin is based on moral and ethnic principles under which the related feelings are considered to be significant human values safeguarding by law. The given circumstance taken into account the criminal law shall not envisage the liability for misprision on a crime of next of kin as well as members of family of a person who committed a crime. At the same time the Constitutional Court considers that the law-maker while securing the guarantees of the rights and liberties of the citizens and establishing their limitations or specifying some peculiarities of their protection, should proceed from the estimation of the significance of one or another right in the whole system of constitutional rights and freedoms, adhering to such a balanced approach, in order the realization of some of the rights of the citizens not to entail irreversible results as well as causing heavy damage other rights, especially those, which are attached priority importance.

     Article 7 of the Constitution of the Republic of Belarus establishes the principle of supremacy of law which presents itself the normatively secured fairness that means, first of all, the acknowledgement of the supremacy of human rights and freedoms as the main value guide both in lawmaking and in lawapplicable practice, restricter of the rights and freedoms, the behaviour of other persons.

     Under part two of Article 29 of the Universal Declaration of Human Rights 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.

     The Constitutional Court also pays attention to the universally acknowledged in the international law provisions under which personal rights and freedoms shall be considered in combination with the rights of other persons; restrictions of personal rights are considered to be justified when they are applied in the interest of protection of the rights and liberties of other citizens; imposition of restrictions on the human rights shall not prevent the implementation of basic personal rights and freedoms secured by international acts as well as by the constitutions of the states; degree of any restriction of law shall be strictly proportionate to the requirement or to the highest interest for the sake of which the given restriction is imposing.

     In this connection, in the Constitutional Court opinion, there is no exclusion of the possibility of search by lawmaker for such a solution of the issue on the liability for misprision under which next of kin or members of the family of a person who is under preparation to make a grave crime, which is dangerous for the life of people, were subjects to no liability for misprision on the fact of preparation of the crime in question, when information on that fact may not be carried out otherwise as by way of giving explanations and evidence aimed directly at a person who is going to make a crime.

     The Constitutional Court also deems that the lawmaker shall have the right to determine the differentiated approach to the solution of the issue on the liability of next of kin and members of family of a person who has committed a crime for the beforehand non-promised concealment of a crime.

     Acknowledging the ensuring of the rights and liberties of the citizens of the Republic of Belarus as the supreme goal of the State, the Constitution shall stipulate in Article 23 the possibility of restriction of personal rights and liberties 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. The Constitution, while giving the lawmaker in certain instances the possibility to establish the scope and the limits of the restriction of the rights and liberties of the citizens, shall orient it to the fixation of the minimum possible restrictions in question. At the same time, the Constitution shall not exclude the right of the lawmaker to establish the peculiarities concerning the liability of certain categories of persons. That right is realized, for example, in the criminal legislation which envisages, particularly, the circumstances extenuating the liability for certain categories of persons who committed a crime. That is the criterion by which the lawmaker shall be guided while adopting the laws on amnesty. In the opinion of the Constitutional Court the same approach may be determined by the lawmaker while establishing the liability of next of kin and members of family of a person who committed a crime for the beforehand non-promised concealment.

     In this connection the Constitutional Court emphasizes that the beforehand non-promised concealment of a crime may come to the concealment of both a person who committed a crime and the instruments and means of making a crime, signs of a crime or the things obtained by the criminal way. The Constitutional Court when adopting its Judgment of 19 December 1994 has beard in mind the most malicious forms of concealment which manifestly interfere with activities of law enforceable bodies on disclosing the crimes.

     At the same time, by explaining the content of the specified Judgment with regard to the beforehand non-promised concealment, the Constitutional Court notes that the liability for that action of next of kin or members of family of a person who committed a crime may be geared not only to the degree of social danger of a crime made, but also to the form of the performing actions, as well as to the grounds of their commitment. Quiet often the given persons may find themselves in the situations when the fear of the threat of punishment, where a near to them person will be subject thereto, is the most significant ground which has predetermined the nature of their behaviour. It is also necessary to consider the different danger degree of the beforehand non-promised concealment of a crime which is making of selfish and other vile motives, as well as the concealment the grounds for which call forth by related feelings only.

     The Constitutional Court, the aforesaid taken into account, does not exclude the right of the lawmaker to envisage the possibility of non-calling to account of next of kin and members of family of a person who committed a crime for the beforehand non-promised concealment of the person in question or his location. That norm which follows from moral and ethnic interests and is based on the accounting of the motives produced by related feelings would not be at variance with the Constitution.

     That approach to the criminal and law estimation of the specified action which is not at variance with the constitutional provisions and norms of international law has found its reflection in the legislation of other states. The Constitutional Court emphasizes, that the Model Criminal Code of CIS Member-States generally excludes the liability for the beforehand non-promised concealment of a spouse and next of kin of a person who committed a crime. The criminal legislation of many other states shall exclude the criminal liability of the specified persons for that action as well.

     Based on the abovestated and guided by Article 41 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 77 of the Rules of Procedure of the Constitutional Court of the Republic of Belarus, the Constitutional Court

EXPOUNDS:

1. The Judgment of the Constitutional Court of the Republic of Belarus of 19 December 1994 "On the conformity between the Constitution and the note to Article 177 of the Criminal Code of the Republic of Belarus" shall not prevent from the possibility to search for such a legislative decision under which:

there will be no exclusion of liability for misprision of a next of kin or a member of family of a person who is preparing to commit grave crime which is dangerous for the life of people when he had the possibility to inform on the fact of a crime under preparation in order to prevent it and there will be no direct evidence against the person in question;

there will be the exclusion in certain cases of liability of a next of kin or a member of family of a person who has already committed a crime for the beforehand non-promised concealment of the person in question as well as his location.

2. The present Judgment is subject to be published in ten days period from the date of its adoption in "Narodnaya gazeta" and "Zvyazda", as well as in "Vedamasty Natsiyanalnaga Skhodu Respubliki Belarus".

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                              G.A. Vasilevich