23 July 1998 № J-70/98
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, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, 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 a constitutional motion on the verification of the constitutionality of point 3 of part two of Article 66 of the Code of Criminal Procedure of the Republic of Belarus: A.I. Lukashov - Head of the department of legislation on the issues of defence and public security, law enforcing 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 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: 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
has considered in open Court session the case "On the conformity between point 3 of part two of Article 66 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;
P.I. Ivanenko - Deputy Procurator-General of the Republic of Belarus O.G. Sergeeva - Deputy Minister of Justice of the Republic of Belarus.
The case was brought by the Constitutional Court of 7 July 1998 as a result of a constitutional motion filed by the President of Republic Belarus on the basis of Article 116 of the Constitution, Articles 5 and 6 of the Law "On the Constitutional Court of Republic Belarus " and Article 43 of the Rules of Procedure of the Constitutional Court.
Point 3 of part two of Article 66 of the Code of Criminal Procedure of Republic Belarus was subject to examination.
In accordance with part one of Article 66 of the Code of Criminal Procedure of the Republic of Belarus (hereinafter - CCP) to be summoned as a witness for giving evidence may be any person who know any circumstances which are subjects to the ascertainment on the given case.
According to part two of this Article the following persons may not be interrogated as a witness:
1) attorney, a representative of the trade union and other public organization - on circumstances which became known in connection with the performance of their duties as defence counsel or representative;
2) a person, who due to his physical or mental defects is not capable to perceive correctly the circumstances which are important for a case and to give true evidence;
3) near relations listed in point 9 of Article 22 of CCP and members of family of a person who made a crime;
4) priest - on the circumstances which became known for him in connection with performance of religious ceremonies.
The President of Republic Belarus in his motion has raised the issue on the verification of the constitutionality of point 3 of part two of Article 66 of CCP and indicated that the given point contradicts the Constitution of the Republic of Belarus and International Covenant on Civil and Political Rights.
Having heard the judge-speaker, Mrs A.A. Sarkisova, representatives of the litigants, analyzed the provisions of the Constitution, the Criminal Code and the Code of Criminal Procedure of the Republic of Belarus, as well as instruments of international legal acts, studied the materials of the case the Constitutional Court held the following.
Point 3 of part two of Article 66 of CCP was included in this Article by the Law of the Republic of Belarus of 26 June 1996 "On making alterations and addenda in the Criminal Code and the Code of Criminal Procedure of the Republic of Belarus" (Vedamastsi Vyarkhovnaga Saveta Respubliki Belarus, 1996, № 23, art. 416). According to the point in question near relations listed in point 9 of Article 22 of CCP and members of family of a person who made a crime may not be interrogated as witnesses.
In order to substantiate the adoption of the law which added Article 66 of CCP by point 3, it was specified the necessity of bringing of the norms of the Criminal Code and the Code of Criminal Procedure of the Republic of Belarus into line with the Judgment of the Constitutional Court of 19 December 1994 "On the conformity between the note to Article 177 of the Criminal Code of the Republic of Belarus and the Constitution" (Bulletin of first session of the Supreme Council of the Republic of Belarus of the thirteenth calling, No. 57, p. 22). In the opinion of the Constitutional Court point 3 which has been included to part two of Article 66 of CCP was not based on the given Judgment and the norms of the Constitution of the Republic of Belarus.
Under Article 27 of the Constitution of the Republic of Belarus no person shall be compelled to be a witness against oneself, members of one's family or next to kin.
Point "g" of part three of Article 14 of International Covenant on Civil and Political Rights stipulates that in the determination of any criminal charge against him, everyone shall have the right not to be compelled to testify against himself or to confess guilt.
While analyzing the specified provisions of the Constitution and International Covenant on Civil and Political Rights, the Constitutional Court has come to a conclusion that near relations and members of family of a person suspected or accused of making a crime, or a defendant shall have the right not to give evidence and explanation against oneself and against the person in question, and the bodies which carry out inquiry or preliminary investigation and the courts of law have no right to demand their testimony against themselves, members of their family and near relations. The provisions of Article 27 of the Constitution and Article 14 of International Covenant on Civil and Political Rights do not contain restrictions of the right of the witnesses in instance of their consent to give evidence in respect of themselves, near relations and members of family of a suspect, accused or defendant, as well as are not the ground for their discharge of carrying out the duties of a witness stipulated by the criminal legislation of procedure.
Article 22 of the Constitution enshrines that all shall be equal before the law and entitled without discrimination to equal protection of their rights and legitimate interests. The stipulated by point 3 of part two of Article 66 of CCP restriction of the right to develop testimony contradicts Article 23 of the Constitution which allows the restriction of personal rights and liberties only in the interest of national security, public order, the protection of the morals and health of the population, rights and liberties of other persons. Under Article 58 of the Constitution no one shall be compelled to renounce his rights.
In accordance with Article 15 of CCP the court of law (judge), public procurator, investigator and a person making inquiry are legally bound to take all measures, specified in law, for comprehensive, complete and objective examination of the circumstances of the case, to reveal both the circumstamces convicting and acquitting of the accused, as well as the circumstances extenuating and aggravating his responsibility. According to part one of Article 66 of CCP to be summoned as a witness for giving evidence may be any person who may know any circumstances which are subjects to ascertainment on the given case. These circumstances, the ascertainment of which shall promote the comprehensive, complete and objective examination and disposal of the case, may be known for near relations or members of family of a suspect or accused in the commitment of a crime, or a defendant. Moreover, the subject of evidence on the case may not be confined only by the evidence of the event of a crime or the culpability of the specified person in its commitment.
Article 151 of CCP binds an investigation body, investigator, public procurator and a court of law (judge) while carrying out inquiry, preliminary investigation, preliminary consequence and criminal proceedings to reveal the reasons and conditions promoting the commitment of a crime. According to Article 68 of CCP a witness may be interrogated on any circumstances which are subjects to the ascertainment on the given case, including the circumstances on the identity of the accused, victim and about the mutual relations with him. According to Article 151 of CCP for revealing certain circumstances while carrying out preliminary investigation of the cases on crimes made by minors, among other witnesses the parents of a minor shall be interrogated. However, whereas under point 3 of part two of Article 66 of CCP near relations and members of family of a suspect or accused in making a crime, or defendant may not be examined as witnesses, their right to notify the authorized bodies about the circumstances they know is limited. Such a restriction considerably narrows the circle of the most important evidence on a criminal case, which is the testimony and therefore, makes it difficult to establish the truth, as well as other circumstances on the case which are of a vital importance.
Under point "е" of part 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 examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
Article 14 of CCP of the Republic of Belarus stipulates that a suspect, accused and defendant shall have the right to defence. A person making investigation, investigator, public procurator and a court of law (judge) are bound to secure their possibility to defend themselves by means and methods specified in law, as well as protection of their individual and property rights.
Under point 3 of part two of Article 66 of CCP the prohibition to examine as a witness of members of family and near relations of a person who made a crime, entails the restriction of the right of a suspect or accused in making a crime, or defendant to defence, whereas the essential circumstances on the case, including the circumstances acquitting a person or extenuating his responsibility may be known for the near relations or members of his family. The specified prohibition shall restrict the right of near relations or members of family of such a person to defence of one's interests which may be violated during the criminal proceedings.
The Constitutional Court points out the incorrectness of the wording of point 3 of part two of Article 66 of CCP which uses the following expression "a person who has made a crime" whereas under Article 26 of the Constitution of Republic Belarus no one may be found guilty of a crime unless his guilt is proven under the procedure specified in law, and established by the verdict of a court of law that has acquired legal force.
Under Article 137 of the Constitution of the Republic of Belarus the Constitution shall have the supreme legal force. Where there is a discrepancy between the law and the Constitution the Constitution shall apply. In this connection the priority shall be given to the constitutional norm. On the grounds of the fact that under Article 27 of the Constitution of the Republic of Belarus witnesses may not be compelled to give evidence against oneself, near relations or members of one's family of a suspect or accused in making a crime, or defendant, investigator or judge are bound to explain them their right not to testify against oneself, the specified persons and that in these instances the refuse to give evidence shall involve no criminal liability. At the same time witnesses shall be notified about their responsibility to give other evidence on the case which is related to the testimony against oneself, near relatives and members of family of a suspect, accused or defendant.
Under Article 112 of the Constitution of the Republic of Belarus, during the hearing of a specific case, a court concludes that an enforceable enactment is contrary to the Constitution, it shall make a ruling according to the Constitution and raise, under the established procedure, the issue whether the enforceable enactment in question should be deemed unconstitutional. Article 6 of the Law "On the Constitutional Court of the Republic of Belarus" stipulates the right of state bodies and other subjects to put forward relevant initiative before the bodies and persons authorized to make to the Constitutional Court the motions on the verification of the constitutionality of an act. However, the issue on the verification of the constitutionality of point 3 of part two of Article 66 of CCP which makes it considerably difficult the realization of criminal proceedings by law enforcing bodies, except for the Procurator-General of the Republic of Belarus, has not been raised.
The Constitutional Court has come to a conclusion that provision of point 3 of part two of Article 66 of the Code of Criminal Procedure of the Republic of Belarus as restricting the rights and duties of the witnesses and preventing the realization of the right of a suspect, accused and defendant to defence contradicts Articles 22, 23, 26, 27, 58 of the Constitution, points "е" and "g" of part three of Article 14 of International Covenant on Civil and Political Rights ratified by the Republic of Belarus.
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 point 3 of part two of Article 66 of the Code of Criminal Procedure of the Republic of Belarus to be at variance with the Constitution of the Republic of Belarus and International Covenant on Civil and Political Rights.
2. To consider this norm to be invalid from the date of entering into force of the Law of the Republic of Belarus of 26 June 1996 "On making alterations and addenda in the Criminal Code and the Code of Criminal Procedure of the Republic of Belarus".
For the National Assembly of the Republic of Belarus to make necessary amendments in the Code of Criminal Procedure of the Republic of Belarus 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