19 June 1998 № J-66/98
The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, 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
with the participation of representatives as litigants:
of the President of the Republic of Belarus who filed a constitutional motion on the verification of the constitutionality of Article 246 of the Administrative Code of the Republic of Belarus: E.A. Gapontseva - Deputy Director 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: V.M. Alexandrov - Deputy Chairman of the Commission on legislation of the House of Representatives; L.K. Orlov - Head of the Department on criminal and administrative legislation of the Management on expert examination of draft laws of the Main expert and legal Management of the Secretariat of the House of Representatives;
of the Council of the Republic of the National Assembly of the Republic of Belarus: V.V. Bury - Head of the Department on civil, social and economic legislation of expert and legal Management of the Secretariat of the Council of the Republic
has considered in open Court session the case "On the conformity between the Constitution of the Republic of Belarus and Article 246 of the Administrative Code of Republic of Belarus".
The Court session was attended by:
V.N. Ptashnik - 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; A.V. Ivanovsky - Deputy Procurator-General of the Republic of Belarus; O.G. Sergeeva - Deputy Minister of Justice of the Republic of Belarus.
The proceeding was brought by the Constitutional Court of 19 May 1998 as a result of a constitutional motion of the President of Republic of Belarus on the basis of Article 116 of the Constitution, Articles 5 and 6 Laws "On the Constitutional Court of the Republic of Belarus" and Article 43 of the Rules of Procedure of the Constitutional Court.
Article 246 of the Administrative Code of the Republic of Belarus (Collection of Laws of BSSR, 1984, No. 35, art. 505) was subject to examination. According to the specified Article administrative detention, personal examination, inspection of belongings and with drawal of belongings and documents may be appealed against by the interested person in higher body or public procurator.
The President of the Republic of Belarus in his motion to the Constitutional Court on the verification of the constitutionality of Article 246 of the Administrative Code of the Republic of Belarus pointed out, in particular, that the impossibility of appealing against detention by way of judicial procedure is at variance with Article 25 of the Constitution providing the right of a person to a judicial investigation into the legality of his detention as well as with Article 60 of the Constitution which guarantees everyone the protection of his rights and freedoms by a competent, independent and impartial court of law.
Having heard Mrs V.V. Podgrusha, judge-speaker, representatives of the litigants, examined the materials of the case, analyzed the relevant provisions of the Constitution, the Administrative Code of the Republic of Belarus, other laws, as well as instruments of international law, the Constitutional Court held the following.
According to Article 239 of the Administrative Code in instances directly stipulated by the enforceable enactments in order to suppress administrative infringements, if other measures of influence have been exhausted, personal identification, making minutes on administrative infringement under impossibility of its drawing up in the act, when making of minutes is obligatory, ensuring of timely and sound examination of the cases and implementation of the resolutions in the matters of administrative infringements, the administrative detention of person, personal examination, inspection of belongings and withdrawal of belongings and documents shall be assumed.
Article 241 of the Administrative Code stipulates that administrative detention of a person who committed an administrative infringement may be carried out by the authorized bodies (officials) within their competence (bodies of internal affairs (militia), frontier forces, by chief official of the militarized guard in the location of guarding object, by the officials of military motorcar inspection, by officials of customs bodies).
Under Article 242 of the Administrative Code the administrative detention of a person who committed an administrative infringement may be lasted for not more than three hours. In exclusive cases, in connection with the special necessity, the enforceable enactments may determine more long-term administrative detention.
According to the legislation administrative detention is a measure of administrative effect ensuring administrative proceedings. Administrative detention which is consisted in compulsory restriction of individual freedom for a certain period of time involves personal inviolability and dignity.
Universal Declaration of Human Rights proclaims that everyone has the right to liberty and security of person (Article 3); no one shall be subjected to arbitrary arrest or detention (Article 9); 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 (Article 8).
International Covenant on Civil and Political Rights also provides that everyone has the right to liberty and security of person and no one shall be subjected to arbitrary arrest or detention; everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful (Article 9); each State Party to the present Covenant undertakes to develop the possibilities of judicial remedy (Article 2). The right to judicial proceedings concerning the lawfulness of detention is guaranteed by Article 9 of the Covenant in spite of dependence on the character of detention.
The right of everyone to liberty and security, as well as the right to judicial protection in case of detention are universally acknowledged principles and norms of the international law.
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. Article 21 of the Constitution enshrines that safeguarding the rights and liberties of the citizens of the Republic of Belarus shall be goal of the State. 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.
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 order 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.
According to 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.
The Constitutional Court emphasizes that the stipulated by Article 246 the Administrative Code the procedure of the appeal against the measures of administrative influence in higher body (official) or public procurator is itself at variance with the proclaimed by the Constitution guarantees of human rights and freedoms and rights and freedoms of a citizen: it is called to secure promptly the elimination of the violations of the law admitted in law enforcing practice. However, the established by Article 246 of the Administrative Code procedure of appeal actually has excluded the possibility of the interested persons to appeal to the court of law.
The issues of challenging before the court of arrest or prolongation of detention in criminal and procedural judicial proceedings were solved by the law of 3 March 1994 i.e. before the adoption of the Constitution of 1994. Concerning the proceedings in the matters of administrative infringements, Article 246 of the Administrative Code has not been brought into line with the Constitution, in this connection dispite of Article 60 of the Constitution the decisions of the authorized state bodies (officials) on the issues of application of the measures of administrative influence established by Article 246 the Administrative Code remain to be outside of the judicial control.
Qualifying arguments of the representative of the House of Representatives of the National Assembly of the Republic of Belarus on the fact that provisions of Article 246 of the Administrative Code are in conformity with Article 25 of the Constitution, whereas in his opinion the specified Article of the Constitution solves the issues of detention only as criminal and procedural measures, the Constitutional Court notes that the interpretation of that kind shall limit the effect of Article 25 of the Constitution and is at variance with the instruments of international law. A detainee is a person deprived of liberty not in result of conviction for the committed infringement (Collection of principles of protection of all persons who are subjects to detention or confinement in any form. Approved by Resolution 43/173 of the General Assembly of the UN of 9 December 1988); the administrative detention means the confinement of a person by the state without bringing the accusation against the commitment of an offence and without judicial examination (Human Rights and Detention under Remand. // Collection of the international standards concerning the detention under remand. UN. New York and Geneva, 1994).
Article 246 of the Administrative Code regulates both the issues of challenging of administrative detention and personal examination, inspection of belongings and withdrawal of belongings and documents. Like detention, the given actions may be appealed against by the interested person in higher body (official) or public procurator.
According to Article 243 of the Administrative Code personal examination and inspection of belongings is carried out by the authorized officials of the relevant state bodies. As a result of personal examination and inspection of belongings the minutes shall be made or the relevant note shall be done in the minutes on an administrative infringement or in the minutes on administrative detention.
Article 244 of the Administrative Code envisages that belongings and documents which are the instruments or direct objects of an infringement and which were found at the moment of detention, personal examination or inspection of belongings shall be withdrawn by the officials of the bodies stipulated by Articles 241 and 243 of the Administrative Code. In case of withdrawal of belongings and documents the minutes shall be made or the relevant note shall be done in the minutes on an administrative infringement, on inspection of belongings or on administrative detention.
The analysis of the content of the specified Articles of the Administrative Code shows that personal examination and inspection of belongings, withdrawal of belongings and documents may take place both by administrative detention of a person and without such a detention. With allowance for the nature of the indicated measures the Constitutional Court considers that while their application the rights and liberties of the citizens, guaranteed by the Constitution, may be violated, first of all, personal inviolability and dignity (Article 25 of the Constitution), non-interference with one's private life (Article 28 of the Constitution), inviolability of the property (Article 44 of the Constitution).
In this connection the Constitutional Court comes to the conclusion that personal examination and inspection of belongings, withdrawal of belongings and documents may be also appealed against by the interested person not only in higher body (official) or public prosecutor, but also under Article 60 of the Constitution - in the court of law.
Article 7 of the Constitution enshrines that the State and all the bodies and officials thereof shall operate within the confines of the Constitution and the laws enacted in accordance therewith.
Under Article 137 of the Constitution laws shall be promulgated on the basis of, and in accordance with the Constitution which have the supreme legal force. Where there is a discrepancy between a law and the Constitution, the Constitution shall apply.
Article 142 of the Constitution envisages that the laws, decrees and other acts which were applied in the territory of the Republic of Belarus prior to the entry of the present Constitution shall apply in the particular parts thereof that are not contrary to the Constitution.
The Constitutional Court held that provisions of Article 246 of the Administrative Code of the Republic of Belarus as restricting the right of a citizen to access to the justice, preventing implementation of the constitutional right of everyone on the protection of one's rights and liberties by a competent, independent and impartial court of law are at variance with Articles 25, 28, 44 and 60 of the Constitution and International Covenant on Civil and Political Rights ratified by the Republic of Belarus.
On the basis of the abovesaid and guided by Article 116 of the Constitution, Articles 5, 6, 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To find Article 246 of the Administrative Code of the Republic of Belarus to be at variance with the Constitution of the Republic of Belarus, International Covenant on Civil and Political Rights to the extent in which it does not envisage the judicial appeal of administrative detention, personal examination, inspection of belongings and withdrawal of belongings and documents.
2. For the National Assembly of the Republic of Belarus to make, in accordance with the present Judgment, necessary amendments to the Administrative Code of the Republic of Belarus, other laws which secure implementation of the right of the citizens on the appealing to the court against administrative detention, personal examination, inspection of belongings, withdrawal of belongings and documents.
3. Before making relevant amendments to the Administrative Code of the Republic of Belarus and other enforceable enactments on the issues of judicial appealing against administrative detention, personal examination, inspection of belongings, withdrawal of belongings and documents in accordance with Articles 137 and 142 of the Constitutions the norm of Article 60 of the Constitution shall be directly applied.
4. To publish the present Judgment in ten days time from the date of its adoption in "Narodnaya Gazeta", "Zvyazda", as well as in "Vedamastsy Natsiyanalnaga skhodu Respubliki Belarus".
5. The present Judgment shall come into force from the date of its adoption, shall be final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the