14 July 1998 № J-69/98
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 participation of representatives as litigants:
of the House of Representatives of the National Assembly of the Republic of Belarus: T.N. Hodnevich - Deputy Chairman of the Standing commission of the House of Representatives of the National Assembly of the Republic of Belarus on national security, L.K. Orlov - Head of the department of criminal and administrative legislation of the management of expert examination of draft laws of the Main expert and law 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 of civil, social and economic legislation of the expert and law management of the Secretariat of the Council of the Republic of the National Assembly of the Republic of Belarus, L.Y. Senuta - main specialist of expert and law management of the Secretariat of the Council of the Republic of the National Assembly of the Republic of Belarus;
of expert L.I. Kukresh - senior lecturer of the department of criminal procedure of the Academy of the Ministry of Internal Affairs of the Republic of Belarus, Candidate of legal science
has considered in open Court session the case "On the conformity between parts three and four of Article 123 of the Code of Criminal Procedure of the Republic of Belarus and the Constitution of the Republic of Belarus".
The Court session was attended by: V.N. Ptashnik - Deputy Chairman of the Supreme Court of the Republic of Belarus; A.P. Yegorov - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; O.A. Bozhelko - Procurator-General of the Republic of Belarus.
The proceedings were brought by the Constitutional Court of 25 May 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.
Parts three and four of Article 123 of the Code of Criminal Procedure of the Republic of Belarus were subjects to examination.
According to part three of Article 123 of the Code of Criminal Procedure of the Republic of Belarus (hereafter CCP) on the cases on the crimes stipulated by Articles 68, 71, 74 , 741, 77-79, 82, 100-105, 114-118, 122, 1221, 124-127, 128, 130-140, 149, 1492, 158, 159, 166-176, 1844, 1862, 1863, 187-1891, 1942, 198, 2082, 209-211, 216-218, 2194 part two, 222, 227-247, 248 points "d", "f", 249-258 of the Criminal Code of the Republic of Belarus, preliminary investigation shall be made by the investigators of the bodies of the Procurator's office and on the cases on the crimes stipulated by Articles 61-67, 69, 72, 73, 731, 75, 76, 80, 81, 248 points "a", "b", "c" of the Criminal Code of the Republic of Belarus, - also by the investigators of the bodies of state security.
According to part four of Article 123 of CCP on the cases on the crimes stipulated by Articles 83, 84, 841, 842, 851, 852, 87- 90, 92, 922, 93, 96 part two, 97, 98, 106-109, 111, 112, 1121, 113 parts two, three and four, 1131, 119, 123, 1501-1506, 151 part two, 1513- 1524, 153 part two, 154, 157, 160 part two, 162, 1811, 184, 1841, 1843, 190-192, 1971, 201, part three, 202, 203 part two, 205-206, 2062, 2063, 2072 parts two and three, 208, 2081, 2111-2115, 212-215, 219-2193, 2194 part one, 2195- 2197, 220- 221, 223-225 of the Criminal Code of the Republic of Belarus, on all the cases on the crimes committed by minors the preliminary investigation shall be made also by the investigators of the bodies of internal affairs.
The Procurator-General of the Republic of Belarus has made the request to the President of the Republic of Belarus on making a constitutional motion in the Constitutional Court on the verification of the specified parts of Article 123 of CCP. In his address the Procurator-General pointed out, in particular, that part four of Article 123 of CCP determines that on all the cases on the crimes committed by minors the preliminary investigation shall be carried out also by the investigators of the bodies of internal affairs. The investigation in this part of Article is determined not depending on the sanction of an article but depending on the individual who committed a crime. Thus, it follows from this that the law on all the categories of criminal cases on the crimes committed by minors stipulates their investigation by the investigators of the bodies of internal affairs included and this is confirmed by the judicial practice of long standing. At the same time the Plenum of the Supreme Court of the Republic of Belarus has pointed out in its ruling on the concrete case of the crimes stipulated by Articles 74 and 100 of the Criminal Code of the Republic of Belarus, in the perpetration of which took part three minors together with adults, that the investigation on the given case by the investigator of the bodies of internal affairs is the essential violation of the criminal law of procedure. The Plenum of the Supreme Court pointed out, in particular, that the cases on the crimes qualified by Articles 74 and 100 of the Criminal Code the sanctions of which envisage the exclusive penalty are subjects to investigation by the bodies of the Procurator's office only.
In the opinion of the Procurator-General such an interpretation of Article 123 of CCP challenges the constitutionality of the norm in question, is wrong on points of fact, contradicts the meaning of parts three and four of Article 123 of CCP and moreover, was made in defiance of the Constitution of the Republic of Belarus.
Having heard judge-speaker, Mrs A.A. Sarkisova, representatives of the litigant, expert, analyzed provisions of the Constitution, the Code of Criminal Procedure and other laws of the Republic of Belarus, instruments of international law, studied the materials of the case, investigation and judiciary practice, the Constitutional Court ruled the following.
In accordance with Article 122 of CCP the preliminary investigation on criminal cases shall be carried out by the investigators of the bodies of the Procurator's office, as well as by the investigators of the bodies of internal affairs and by the investigators of the bodies of state security.
Article 123 of CCP regulates the binding character of the preliminary investigation and investigation. While determining investigation parts three and four of Article 123 of CCP two criteria are used: type of a crime (subject investigation) and features of the subject of a crime (personal investigation).
Having determined concrete categories of the crimes, the criminal cases of which are subjects to investigation by the bodies of the Procurator's office, the bodies of state security or by the bodies of internal affairs, the law granted the investigators of the bodies of internal affairs the right to carry out preliminary investigation on all the criminal cases on the crimes committed by minors as well.
Having analyzed the development of the criminal legislation of procedure which envisages the investigation of the criminal cases, the Constitutional Court held that up to 1978 the preliminary investigation on the all cases on the crimes committed by minors was the competence of the investigators of the bodies of the Procurator's office. However, under the Decree of the Presidium of the Supreme Council of the Republic of 11 May 1978 (Collection of Laws of BSSR, 1978, No. 14, art. 269), which made alterations in parts three and four of Article 123 of CCP, the right to preliminary investigation on all the cases on the crimes committed by minors was given also the investigators of the bodies of internal affairs. Such a broadening of the competence of the bodies of internal affairs was explained by the fact that these bodies which had in their composition inspections on the affairs of minors, as well as having the possibilities to secure integrated approach to the preventive measures of the crime among minors had to make the investigation of the cases of the given category on the high level. In addition, the given competence of the bodies of internal affairs was found by the criminal legislation of procedure not to be exclusive. Both the bodies of the Procurator's office and the bodies of state security had the right to investigate the cases of that kind.
Having estimated the meaning of Article 123 of CCP in the present wording the Constitutional Court emphasized that the bodies of internal affairs and the bodies of the Procurator's office as the state bodies while carrying out their functions shall protect individual rights and freedoms and this is directly enshrined in the Constitution and the laws which regulate the activities of these bodies.
Article 7 of the Constitution stipulates that the state, all bodies and officials thereof shall operate within the confines of the Constitution and the laws enacted in accordance therewith.
Under Article 59 of the Constitution of the Republic of Belarus the state bodies, officials and other persons who have been entrusted to exercise state functions shall take necessary measures to implement and safeguard the rights and liberties of the individual. These bodies and persons shall be held responsible for actions violating the rights and liberties of an individual.
According to Article 2 of the Law "On the Procurator's office of the Republic of Belarus" the bodies of the Procurator's office equally with other functions shall also carry out the investigations of the crimes. Article 5 of the given Law specifies that the workers of the Procurator's office while carrying out their activities shall secure the observance of the rights and liberties of an individual guaranteed by the state irrespective of the citizenship, social and property status, race, nationality, language, sex, age, education, religion, political and other convictions.
Under the Provision on the Ministry of Internal Affairs of the Republic of Belarus the bodies of internal affairs are entrusted with making preliminary investigation within their competence. In accordance with Article 6 of the Law "On militia" militia shall protect each individual irrespective of his or her citizenship, social and property status, race, nationality, language, sex, age, education, religion, political and other conviction.
Under the Law of the Republic of Belarus "On the rights of the child" and the Convention "On the rights of the child" ratified by the Republic of Belarus of 28 July 1990 the state bodies are vested the obligation to protect the rights and interests of minors. This protection shall be secured during the process of the investigation of the criminal cases on the crimes committed by minors both by the investigators of the bodies of the Procurator's office and the investigators of the bodies of internal affairs. The legal guarantee of the equal protection of the minors accused of making the crimes, of the securing of fair and detailed examination and disposal of the case independently of the body which holds an inquiry into it shall be, under Article 49 of the CCP, the possibility of the access of the defender to the case beginning from the moment of accusation.
The Constitutional Court considers that granting to the bodies of internal affairs the right to carry out preliminary investigation on all the cases on the crimes committed by minors shall be in compliance with the Constitution and shall not violate the rights and lawful interests of the citizens.
Under Article 11 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court while examining the enactment means both its literal sense and the sense attached by the practice of its application.
The Constitutional Court, having studied the practice of application of parts three and four of Article 123 of CCP, emphasized that during the long period of time both the investigation and judiciary practice of the Republic of Belarus has been formed on the basis of understanding that the bodies of internal affairs could make preliminary investigation both of criminal cases on all crimes committed only by minors and of the cases on the crimes committed by minors committed in accomliance with the persons at the age of 18. Preliminary investigation of the criminal cases on the crimes which are carrying out by minors, the persons of the age of 18 included, has been made by investigators of the bodies of the Procurator's office whereas the law does not exclude their right to investigate the cases in question. Over the years the Courts have examined the criminal cases on the crimes committed by minors or with their accompliance which were investigated by the investigators of the bodies of internal affairs and in this connection without their return for additional investigation on the grounds of the essential violation of the criminal law of procedure. However, the Plenum of the Supreme Court of the Republic of Belarus in its ruling of 19 June 1997 has specified, equally with other grounds of referring the case for additional investigation, that "preliminary investigation of the case in contravention of the requirements of part 3 of Article 123 of CCP was made not by the investigator of the Procurator's office but by the investigator of the bodies of internal affairs and this is essential violation of the norms of the criminal law of procedure whereas the cases on the crimes qualified according to Articles 74, 100 of the Criminal Code under the sanctions of which the exclusive punishment is stipulated are the subjects to investigation only by the bodies of the Procurator's office" (Sudovy Vesnik, 1997, No. 3, art. 25).
In this connection the Constitutional Court emphasizes that the dispute on the investigation of the criminal cases on the crimes committed by minors in accompliance with the persons at the age of 18 could emerge as a result of multivalued understanding theoretically and in practice the meaning of parts three and four of Article 123 of CCP which contain different criteria of the determination of the investigation of their contradictoriness and insufficiently precise wording. The Plenum of the Supreme Court in its ruling of 19 June 1997 delivered on the concrete case, by grounding the essential violation of the norms of the criminal law of procedure, allowed while investigating this case, practically gave the interpretation of the law which changed the approach to the understanding of the meaning of parts three and four of Article 123 of CCP. In particular, the specified Article does not contain such a criterion, under which criminal cases are exclusive subjects to investigation of the bodies of the Procurator's office, as sanction of the criminal law by way of capital punishment, whereas part three of this Article envisages that criminal cases are subjects to investigation by the bodies of the Procurator's office depending on the types of a crime (subject investigation). The explanation of the Plenum of the Supreme Court where the cases on the crimes qualified under Articles 74, 100 of the Criminal Code shall be subjects to investigation only by the bodies of the Procurator's office are at variance with the meaning of the specified norms. Based on the analysis of part four of Article 123 of CCP it is possible to make the unique conclusion that the cases on the crimes of this kind may be subjects to investigation by the bodies of internal affairs in instances they are carrying out by minors only.
Under Article 125 of the Constitution the Procurator's office shall exercise supervision over the implementation of the laws while making investigations of the crimes. By carrying out supervision function a public procurator, in accordance with point 9 of Article 211 of CCP and in order to secure the most complete and objective investigation, shall have the right to refer a case from one body of preliminary investigation to another. According to Article 212 of CCP the directions of a public procurator for the bodies of inquiry and preliminary investigation in connection with the institution and investigation by them of criminal cases, given in the order specified by the Code of Criminal Procedure, are binding for these bodies. It follows from the norms of CCP a procurator shall have the right to come to a decision on the investigation of a criminal case on the crimes which are subjects to investigation by different bodies. Such an approach is fixed in part seven of Article 234 of the Model Code of Criminal Procedure adopted by the Interparliamentary Assembly the Member-States of the Commonwealth of Independent States of 17 February 1996.
During the proceedings on the present case in order to fix on the legislative level of the order and grounds of the differentiation of the investigation on complicated, many-episode cases on the crimes which are subjects to investigation by different bodies of preliminary investigation, the Law of 9 July 1998 "On making alterations and addenda in the Criminal Code of Procedure of the Republic of Belarus" has added Article 123 of CCP with new part: "In instance of combination in one proceeding of the cases which are subjects to investigation by the bodies of preliminary investigation or inquiry, as well as if in the process of investigation there will be revealed the crimes, the cases on which are the subjects to investigation by other bodies of preliminary investigation or inquiry, the investigation shall be determined by a public procurator".
In this connection the Constitutional Court considers that the right to make decisions on the investigation of the criminal cases shall have the bodies of the Procurator's office within their competence and the decisions of the bodies of the Procurator's office on the referring to the bodies of internal affairs for the investigation of the criminal cases on the crimes specified in part three of Article 123 of CCP committed in complicity of minors are not at variance with the meaning of the law.
Based on the aforesaid and guided by Article 116 of the Constitution, Articles 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To find parts three and four of Article 123 of the Code of Criminal Procedure of the Republic of Belarus to be at variance with the Constitution of the Republic of Belarus bearing in mind that the bodies of internal affairs like the bodies of the Procurator's office shall have the right to carry out preliminary investigation of the criminal cases on the crimes committed by minors, as well as that the criminal law of procedure does not exclude the possibility to make by the bodies of the Procurator's office within their competence decisions on the submission to the investigators of the bodies of internal affairs of the criminal cases on the crimes envisaged by part three of Article 123 of the Criminal Code of Procedure of the Republic of Belarus committed by minors or in complicity therewith.
2. 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".
3. 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