24 June 1998 № J-67/98
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, V.Z. Shuklin
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 the enforceable enactments: P.P. Miklashevich - First Deputy Minister of Justice 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 Standing Commission of the House of Representatives of the National Assembly of the Republic of Belarus on legislation; I.E. Demidova - Head of the department of economic, labour and social legislation of the Management on the expert examination of draft laws of the Main expert and legal Management of the Secretariat of the House of Representatives of the National Assembly of the Republic of Belarus;
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 the expert and legal Management of the Secretariat of the Council of the Republic;
of the Supreme Court of the Republic of Belarus: I.N. Mints - judge, secretary of the Plenum of the Supreme Court
has considered in open Court session the case "On the conformity between Article 267 of the Administrative Code of the Republic of Belarus, point 2 of Ruling of the Plenum of the Supreme Court of the Republic of Belarus No. 7 of 20 September 1990 "On the practice of examination by the courts of the Republic of Belarus of the complaints against the actions of the bodies and officials in connection with imposition of administrative penalties".
The Court session was attended by: 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.
The proceeding was brought of 19 May 1998 as a result of a constitutional motion of the President of the Republic of Belarus on the ground of Article 116 of the Constitution of the Republic of Belarus, 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.
Article 267 of the Administrative Code of the Republic of Belarus (Collection of Laws of BSSR, 1984, No. 35, art. 505) and point 2 of Ruling of the Plenum of the Supreme Court of the Republic of Belarus No. 7 of 20 September 1990 "On the practice of examination by the courts of the Republic of Belarus of the complaints against the actions of the bodies and officials in connection with imposition of administrative penalties" were subjects to verification.
Article 267 of the Administrative Code of the Republic of Belarus which envisages the procedure of appealing of the ruling in the matter of administrative infringements determined in particular the following.
The ruling in the matter of administrative infringements may be challenged:
1) resolution of administrative commission, juvenile commission - in the executive committee of the relevant Council of deputies or in region (city) court, the decision of which is final;
2) decision of the executive committee of settlement, rural Council of deputies - in the executive committee of the region, city, district in city Council of deputies or in region (city) court, the decision of which is final;
3) resolution of other body (official) on imposition of administrative penalty by way of fine - in higher body (official) or in region (city) court, the decision of which is final; resolution on imposition of other administrative penalty - in higher body (official) whereupon a complaint may be lodged in region (city) court, the decision of which is final.
The resolution on imposition of basic and additional administrative penalties simultaneously may be challenged of the choice of the person challenging the resolution in accordance with the procedure determined for the basic or additional penalty;
4) resolution of the body of internal affairs (official) on imposition of administrative penalty by way of notice fixed in the act without making minutes, - in higher body (official);
5) resolution of an official of the military motorcar inspection on imposition of administrative penalty by way of notice fixed in the act without making minutes, - to higher official who is competent to consider a complaint.
Point 2 of Ruling of the Plenum of the Supreme Court of the Republic of Belarus No. 7 of 20 September 1990 "On the practice of examination by the courts of the Republic of Belarus of the complaints against the actions of the bodies and officials in connection with imposition of administrative penalties" contains the following explanation: "While settling the issue on taking proceedings on the complaint against the resolution on administrative infringement it is necessary to mean that under Articles 266 and 267 of the Administrative Code of the Republic of Belarus this resolution may be challenged by a person against whom it has been delivered, as well as by a victim.
The resolution of administrative commission, juvenile commission, the decision of the executive committee of settlement, rural Council of deputies on imposition of any kind of administrative penalty, as well as resolution of other body (official) on imposition of administrative penalty by way of fine may be challenged in the court of law, if it has not been challenged in accordance with the procedure envisaged by Article 267 of the abovesaid Code i.e. resolution of the commission - in the executive committee of the relevant Council of deputies, decision of the executive committee of settlement, rural Council of deputies - in higher executive committee of the Council of deputies, resolution of other body (official) - in higher body (official).
The complaint against the resolution of other body on imposition of other kinds of administrative penalties (except fines) shall be taking to the proceedings only after consideration by higher body (official).
The resolution on imposition of the basic and additional administrative penalty simultaneously may be challenged of the choice of the person challenging the resolution in accordance with the procedure specified for basic or additional penalty".
The President of the Republic of Belarus in his motion put the question on the verification of the constitutionality of Article 267 of the Administrative Code and point 2 of the said Ruling of the Plenum and pointed out that provisions of Article 267 of the Administrative Code and the Ruling of the Plenum of the Supreme Court on the fact that if the interested person has used one's right granting by the law to challenge the resolutions in the matter of administrative infringement in other body (except a court of law) then this person has no right to appeal to the court against the actions of the bodies and officials in connection with imposition of administrative penalties are at variance with Article 60 of the Constitution of the Republic of Belarus under which everyone shall be guaranteed protection of one's rights and freedoms by a competent, independent and impartial court of law within time periods specified in law.
Having heard Mrs K.I. Kenik, judge-speaker, representatives as the litigants, having analyzed the provisions of the Constitution, the Administrative Code of the Republic of Belarus and other enforceable enactments of the Republic of Belarus, as well as the instruments of international law the Constitutional Court held the following.
Article 267 of the Administrative Code which is under verification by the Constitutional Court determines the procedure of challenging of the resolution in the matter of administrative infringement. Points 1, 2 and 3 of the specified Article envisage that resolutions of administrative commission, juvenile commission may be challenged in the executive committee of the relevant Council of deputies or in region (city) court; decision of the executive committee of settlement, rural Council of deputies - in the executive committee of region, city Council of deputies or in region (city) court; resolution of other body (official) on imposition of administrative penalty by way of fine - in higher body (higher official) or in region (city) court.
The Constitutional Court may not agree with the arguments that Article 267 of the Administrative Code contains no restrictions for the citizens to appeal to the court, whereas on the basis of the analysis of its content it is possible to come to the conclusion on the alternative dependency of the challenging of the resolutions in the matters of administrative infringement: either in higher body (higher official) or in the court of law.
Under Article 11 of the Law "On the Constitutional Court of the Republic of Belarus" while examining an enactment the Constitutional Court shall take into account both its literal meaning and the meaning attributed to it by the practice of application.
Having studied the practice of application of Article 267 of the Administrative Code the Constitutional Court ruled that this norm of the law is applied in the way when the interested person has realized the right to extrajudicial procedure of appealing against the resolution in higher body (higher official) then the complaint about the resolution on imposition of administrative penalty is subject to no consideration in a court of law.
This explanation contains in paragraph 2 of Ruling of the Plenum of the Supreme Court of the Republic of Belarus No. 7 of 20 September 1990 "On the practice of examination by the courts of the Republic of Belarus of the complaints against the actions of the bodies and officials in connection with imposition of administrative penalties", according to which the resolution on imposition of administrative penalty may be challenged in the court of law if it has not been challenged by other means stipulated by Article 267 of the Administrative Code.
The court practice has not been changed after the adoption of the Constitution of the Republic of Belarus of
15 March 1994, under Article 61 of which everyone shall be guaranteed protection of one's rights and freedoms by a competent, independent and impartial court of law. The Plenum of the Supreme Court of the Republic of Belarus in its Ruling No. 7 of 28 June 1996 "On carrying out Ruling No. 7 of the Supreme Court of the Republic of Belarus of 20 September 1990 "On the practice of examination by the courts of the complaints against the actions of the bodies and officials in connection with imposition of administrative penalties" pointed out that while examining these cases it is necessary to follow strictly the requirements of Article 267 of the Administrative Code on the procedure of challenging of the resolution on administrative infringement (Sudovy vesnik, No. 3, 1996).
Thus, the Supreme Court, while directing the court practice, has not ensured the supremacy of the norms of the Constitution which guarantee everyone the right to judicial protection, has not brought the rulings adopted by the Plenum into line with the Constitution.
Common law courts of the Republic of Belarus when examining the cases of the given category are guided by the specified explanations of the Plenum of the Supreme Court. Thus, the ruling of the judge of Rechitsa region of 7 April rejected the complaint of citizen K. against the resolution of State tax inspection on Rechitsa region on imposition of a fine. The Supreme Court of the Republic of Belarus having left the ruling of the judge unchanged emphasized that according to point 3 of Article 267 of the Administrative Code of the Republic of Belarus the resolution of other body (official) on imposition of administrative penalty by way of fine may be challenged in higher body (higher official) or in region court, the decision of which is final. According to the Supreme Court, "therefore, the law determines extrajudicial or judicial order of challenging of administrative penalty by way of a fine. That is why by act of the law the implementation of the citizen's right to the extrajudicial order of challenging of penalty is an obstacle for a citizen to appeal on the same issue to the court" (Sudovy vesnik, No. 4, 1997).
Based on the aforesaid the Constitutional Court considers that restriction of the right to judicial protection while implementing the right to extrajudicial order of challenging of administrative penalty is contrary to Article 60 of the Constitution which guarantees everyone the protection of one's rights and freedoms by a competent, independent and impartial court of law.
Having analyzed the provisions of point 3 of Article 267 of the Administrative Code on the fact that resolutions on imposition of different administrative penalty (except fine) shall be appealed in higher body (higher official) whereupon a complaint may be lodged to the region (city) court, the Constitutional Court considers that the presence in this case of the compulsory preliminary pre-trial procedure of settling of a complaint with the right to subsequent appeal to the court is not at variance with the Constitution.
The Constitutional Court found provisions of points 4 and 5 of Article 267 of the Administrative Code on challenging in the higher body (higher official) of the resolutions on the imposition of administrative penalties by way of notice, fixed in the act without making minutes and without granting the right of challenging these resolutions in the court are at variance with Article 60 of the Constitution of the Republic of Belarus, whereas in these instances there shall be the right to appeal to the court of law.
The Constitutional Court emphasized that norms of Article 267 of the Administrative Code and point 2 of Ruling of the Plenum of the Supreme Court of the Republic of Belarus No. 7 of 20 September 1990 which contradict the Constitution of the Republic of Belarus are also at variance with the instruments of international law.
Universal Declaration of Human Rights has proclaimed 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 (Article 10). International Covenant on Civil and Political Rights envisages that all persons in the determination of his rights and obligations shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law (Article 14); each State Party to the present Covenant undertakes to develop the possibilities of judicial remedy (Article 2).
The right to judicial protection is referred to universally acknowledged principles and norms of 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.
Under Article 137 of the Constitution of the Republic of Belarus the Constitution shall have the supreme legal force. Laws, decrees, ordinances and other instruments of state bodies shall be promulgated on the bases of, and in accordance with the Constitution of the Republic of Belarus. Where there is a discrepancy between a law, decree or ordinance 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 present Constitution shall apply in the particular parts thereof that are not contrary to the Constitution.
On the basis of the aforesaid 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 points 1, 2, 3 of Article 267 of the Administrative Code of the Republic of Belarus and paragraph two of point 2 of Ruling of the Plenum of the Supreme Court of the Republic of Belarus No. 7 of 20 September 1990 "On the practice of examination by the courts of the Republic of Belarus of the complaints against the actions of the bodies and officials in connection with imposition of administrative penalties" in part of non-recognition of the right of a citizen to appeal to the court of law against the ruling in the matter of administrative penalty in case of its challenging in the higher body (official), and points 4 and 5 of Article 267 of the Administrative Code of the Republic of Belarus - in part of fixation of the rule on challenging of the resolution only in the higher body (higher official) and absence of the right of a citizen to appeal to the court against the resolution on imposition of administrative penalty by way of notice, fixed in the act without making minutes to be at variance with the Constitution of the Republic of Belarus and International Covenant on Civil and Political Rights.
To consider the specified provisions to be invalid from the date of adoption of the present Judgment.
2. For the National Assembly of the Republic of Belarus and the Supreme Court of the Republic of Belarus to bring the norms of Article 267 of the Administrative Code of the Republic of Belarus and point 2 of Ruling of the Plenum of the Supreme Court of the Republic of Belarus No. 7 of 20 September of 1990 "On the examination by the courts of the Republic of Belarus of the complaints against the actions of the bodies and officials in connection with imposition of administrative penalties" into line with the present Judgment.
3. Before making amendments to the Administrative Code of the Republic of Belarus and Ruling of the Plenum of the Supreme Court No. 7 of 20 September 1990 "On the practice of examination by the courts of the Republic of Belarus of the complaints against the actions of the bodies and officials in connection with imposition of administrative penalties" under Articles 137 and 142 of the Constitution Article 60 of the Constitution of the Republic of Belarus shall apply.
4. To publish the present Judgment in ten days time from the date of its adoption in "Narodnaya Gazeta", "Zvayzda" and in those publications where the enforceable enactments under verification have been published, as well as in "Vedamastsi 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