9 July 1997 № J-57/97
The Constitutional Court of the Republic of Belarus comprising of the presiding officer - Chairman of the Constitutional Court G.A.Vasilevich and 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 of the Supreme Court of the Republic of Belarus, who filed a motion to examine the constitutionality of the Law of 17 May 1997: V.N.Ptashnik - Deputy Chairman of the Supreme Court of the Republic of Belarus; F.I.Chubkovets - Judge of the Supreme Court of the Republic of Belarus;
representatives of the Chambers of the National Assembly of the Republic of Belarus, which adopted the Law: T.N.Hodnevich - Deputy Chairman of the Commission on National Security of the House of Representatives of the National Assembly of the Republic of Belarus; V.V.Moroz - Head of the Chair of Criminal Law and Criminology of the Academy of the Ministry of Internal Affairs of the Republic of Belarus; L.Y.Senuta - Senior Specialist of Expert and Law Board of the Secretariat of the Council of the Republic of the National Assembly of the Republic of Belarus;
experts: A.V.Barkov - Head of the Chair of Criminal Law of the Law Faculty of the Belarusian State University, Candidate of Legal Sciences, Assistant Professor; A.I.Lukashov - Head of the Chair of Crime Detection of the of the Academy of the Ministry of Internal Affairs of the Republic of Belarus, Candidate of Legal Sciences, Assistant Professor;
The Court session was attended by: V.O.Sukalo - Chairman of the Supreme Court of the Republic of Belarus; A.I.Kiselov - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; A.V.Ivanovsky - Deputy Procurator General of the Republic of Belarus; G.N.Vorontsov - Minister of Justice of the Republic of Belarus.
The proceedings was brought on 11 June 1997 as a result of a constitutional motion filed by the Supreme Court 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 44 of the Regulations of the Constitutional Court.
Point 3 of Section III "Final Clauses" of the Law of 17 May 1997 "On introduction of amendments and alterations in the Criminal Code and the Code of Criminal Procedure of the Republic of Belarus" ("Zvyazda". 29 May 1997) was subject to examination.
According to the specified point, the valid sentences in respect to the persons who had been convicted of crimes before the Law of 17 May 1997 came into effect, listed in Article 72 as well as envisaged by parts 1,2 and 3 of Article 87, parts 1,2 and 3 of Article 88, part 1 of Article 89, parts 1 and 2 of Article 90, parts 1 and 2 of Article 91, Article 911, parts 1, 2 of Article 93, Article 94 and part 1 of Article 96 of the Criminal Code of the Republic of Belarus, in view of coming into force of the specified Law, are subject to no revision except the cases, when the imposed punishment is exceeds maximum level, which is envisaged by sanctions of Articles 87, 88, 90 of the Criminal Code of the Republic of Belarus in the redaction of this Law. In such cases the revision of the cases is supervised by the courts on the submission of the organs, which are in charge of execution of a punishment.
The Law of 17 May came into force from the date of its publication.
The Supreme Court in its motion on the examination of the constitutionality of point 3 of Section III "Final Clauses" of the Law of 17 May 1997 "On introduction of amendments and alterations in the Criminal Code and the Code of Criminal Procedure of the Republic of Belarus" pointed out in particular the following facts.
The application of Article 72 of the Criminal Code in the redaction of the aforementioned Law entails the revocation of criminal responsibility for a number of offences or the changing of juridical qualifications for Articles or parts of Articles of the Criminal Code, providing for a more commuted punishment. Such a law, under Article 104 of the Constitution, point 1 of Article 15 of the International Covenant on Civil and Political Rights, Article 6 of the Criminal Code has retrospective action, i.e. extends to the offences, committed before it promulgation.
According to the Supreme Court point 3 of the specified Final Clauses which restricts the application of the law which revokes punishability of an offence or commutes a punishment according to the sentences which have come into force in respect to the persons, who have been convicted of crimes before the Law came into effect, is at variance with Article 104 of the Constitution and point 1 of Article 15 of the International Covenant on Civil and Political Rights.
Having heard the representatives of the litigants, experts, witnesses, having studied the materials of the case, having analysed provisions of the Constitution, the International Covenant on Civil and Political Rights, the Criminal Code of the Republic of Belarus, other acts, the Constitutional Court stated the following.
The Law of the Republic of Belarus of 17 May 1997 "On the conformity of point 3 of Section III "Final Clauses" of the Law of 17 May 1997 "On introduction of amendments and alterations in the Criminal Code and the Code of Criminal Procedure of the Republic of Belarus" has changed criteria of qualification of certain crimes depending on the amount of the stolen property or damage caused.
Thus petty theft of property according to Article 72 of the Criminal Code in the redaction of the Law, is a theft of a sum, which does not exceed the tenfold amount of the fixed minimum wage at the time of the crime. Before this Law was adopted, petty theft of property had been a theft of a sum, which did not exceed the fixed minimum wage at the time of the crime.
Big amount or big damage (big property damage) when crimes are committed which are envisaged by part 2 of Article 731, Article 75, 842, part 2 of the Article 85, part 3 of the Article 87, part 3 of Article 88, part 2 of Article 89, part 3 of Article 90, part 3 of Article 91, part 3 of Article 93, Article 95, part 2 of Article 96, Articles 98, 1504, 1505, part 2 of Article 1506, part 1 of Article 151, part 2 of Article 153, part 2 of Article 1561, part 2 of Article 1562, part 1 of Article 160, part 1 of Article 1601, part 2 of Article 161, part 2 of Article 163, Article 164, part 2 of Article 165, part 1 of Article 166, Article 1661, part 1 of Article 167, part 2 of Article 169, part 2 of the Article 203 of the Criminal Code is an amount or damage, which exceeds the fixed minimum wage by 250 and more times at the time of the crime.
Extra big amount or extra big damage when a crime is committed which is envisaged by part 3 of Article 85, part 4 of Article 87, part 4 of Article 88, part 3 of Article 89, part 4 of Article 90, part 4 of Article 91, part 3 of Article 96, Article 149, part 2 of Article 1503, part 2 of Article 151, part 2 of Article 160, part 2 of Article 160, part 2 of Article 1601, Article 168, part 3 of Article 169 of the Criminal Code is an amount which exceeds, the fixed minimum wage by 1000 and more times at the time of the crime.
Before the adoption of the aforementioned Law big and extra big amounts considered to be amounts which exceeded the fixed minimum wage by 40 and more times and by 100 and more times respectively at the time of the crime.
The Law of 17 May 1997 has also excluded from the Criminal Code Article 911 on the responsibility for a theft of a property in extra big amounts, in connection with which parts 4 of Articles 87, 88, 90, 91 and parts 3 of Article 889 and 96 Articles 89 and 96 of the Criminal Code envisage this extra big amount as qualifying feature.
Under point 6 of Article 104 of the Constitution the Law has no retrospective action unless it extenuates or revokes the responsibility of citizens.
Point 1 of Article 15 of the International Covenant on Civil and Political Rights stipulates that an offender shall benefit from laws that are passed after the commission of the crime and that impose lesser penalties than the law applicable at the time of the crime.
Under Article 6 of the Criminal Code crime and punishability of an offence are determined by the law which was applicable at the time of perpetration. The law which revokes punishability or extenuates a sentence, has retrospective action, i.e. extends also to the offences, perpetrated before it was issued. The law which determines punishability of an offence or which makes a penalty heavier shall be non-retrospective.
The Court has considered the arguments of the representatives of the Chambers of the National Assembly of the Republic of Belarus that the change of criteria of crime qualifications, listed in Article 72 of the Criminal Code of the Republic of Belarus, has been caused by inflationary processes, and the Law of 17 May 1997 shall not extenuate or revoke the responsibility of citizens.
The Court found that the change of the specified criteria is caused not only by inflation but also by the fact that lately there has been overestimation of social danger degree of certain sordid offences disregarding real value of stolen property or damage caused. Furthermore, when fixing multiple rates of minimum wage, determined by the Law of 17 May 1997, there have been used different approaches which fall shot of index advance of consumer prices as compared with minimum wage increase (multiple rates for petty theft, big or extra big amount or damage have been increased by ten, six and more times, ten and more times respectively).
The Court has come to the conclusion that the Law of 17 May 1997, which was directed as a whole at making criminal responsibility severer, has changed the approach to the estimation of social danger degree of certain offences via establishment of new criteria of crime qualification depending on the amount of the stolen property or damage caused which has resulted in revoking punishability for a number of offences which had been qualified as crimes before the adoption of this Law and in extenuating certain crimes.
Thus under the Law of 17 May 1997 first committed theft of a property of an enterprise, an establishment, an organisation amounting up to ten minimum wages shall be an administrative offence rather than a crime. Big property theft may be re-qualified from part 4 of Article 87 of the Criminal Code to other parts of this Article which envisage lesser penalty.
The Court considers that the Law of 17 May 1997 shall be retrospective as it revokes punishability for certain offences which have been considered crimes before the adoption of this Law and extenuates a penalty for certain crimes.
This conclusion is also confirmed by the norm of the Law of 17 May 1997 as well, stated in point 2 of Final Clauses according to which offences of persons who had committed crimes, before this Law came into force, enumerated in Article 72 as well as those envisaged in parts 1, 2 and 3 Article 87, parts 1, 2 and 3 of Article 88, part 1 of Article 89, parts 1 and 2 of Article 90, parts 1 and 2 of Article 91, Article 911, parts 1 and 2 of Article 93, Article 94 and part 1 of Article 96 of the Criminal Code of the Republic of Belarus, as well as on sentences which had not become effective before the Law came into force are subjects to qualification in accordance with the rules of Article 6 of the Criminal Code.
At the same time, along with the acknowledgement of the possibility to apply the provision of Article 6 of the Criminal Code after changing qualification criteria of certain crimes depending on the amount of stolen property or damage caused, the Law of 17 May 1997 in accordance with points 3 of Final Clauses has excluded the application of retrospective rule of the law to the persons who serve a sentence for the same crimes specified in point 2 of the Final Clauses.
Thus the effect of retrospective rule of the criminal law depends on the fact whether the passed sentence has become valid or not.
The Court notes also that as a result of exclusion by the Law of 17 May 1997 Article 911 from the Criminal Code and introduction in parts 4 of Articles 87, 88, 90, 91 and in part 3 of Article 89 of the Criminal Code on extra big amount as a qualifying feature, the punishment for extra big thefts perpetrated via robbery and other means has been commuted in spite of changes of qualification criteria of theft, whereas lower limit for imprisonment has been reduced from 10 to 7 years for extra big theft, robbery and fraud and from 10 to 8 years - for extra big theft via appropriation, embezzlement or misuse of office as well as for armed robbery aimed at appropriation of property in extra big amounts.
Extenuation of responsibility for extra big property theft may take place at re-qualification of an offence from Article 911 to corresponding parts of Articles 87, 88, 89, 90 and 91 of the Criminal Code because the amounts of stolen property, for example, via robbery or theft will not correspond to the amounts estimated earlier while qualifying all perpetrated offences irregardless of the way of theft under Article 911 of the Criminal Code as the same crime.
Thus the Law of 17 May 1997 extenuates responsibility not only in connection with the change of qualification criteria of extra big property theft but also under aforestated facts.
Neither the Constitution nor the International Covenant on Civil and Political Rights as well as the Criminal Code provide for the possibility to remove the law which extenuates or revokes the responsibility of citizens from the retrospective rule.
On the basis of analysis of the provision of part 6 of Article 104 of the Constitution the Court considers that constitutional norm on retrospectivity of the law, which extenuates or revokes the responsibility of citizens, extends also to those persons who are serving sentence.
Such an understanding of retroactive rule of the law is also secured in Article 43 of the Recommendatory act "On normative legal acts of member states of the CIS", approved by the Interparliamentary Assembly of member states of the CIS of 13 May 1995 as well as in Article 12 of the Model Criminal Code for member states of the CIS, adopted by the Interparliamentary Assembly of member states of the CIS of 17 February 1996, which in particular states that the law which revokes criminality of an act, commutes a sentence or improves by any other means the status of a person who perpetrated a crime shall have a retrospective action, i.e. shall extend to the persons who had perpetrated a corresponding offence, before such a law came into force, including the persons who are serving a sentence.
Point 2 of Article 4 of the International Covenant on Civil and Political Rights stipulates that even in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, could not be the ground for any derogation from a number of Articles of the present Covenant including Article 15 which secures retrospective rule of the criminal law which determines a lighter sentence.
Point 1 of Article 2 of the Covenant envisages that each State Party to the present Covenant undertakes to respect and to ensure individuals all within its territory and subject to its jurisdiction the rights recognised in the present Covenant, within distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Under Article 8 of the Constitution the Republic of Belarus shall recognise the supremacy of the universally acknowledged principles of international law and ensure that its laws comply with such principles.
According to Article 21 of the Constitution Safeguarding the rights and liberties of the citizens of the Republic of Belarus shall be the supreme goal of the State. The State shall guarantee the rights and liberties of the citizens of Belarus that are enshrined in the Constitution and of the laws, and specified in the state's international obligations.
In a view of the above the Court has come to the conclusion that point 3 of Section III "Final Clauses" of the Law of 17 May 1997 in part of restriction of retrospective action of the criminal law in respect of the persons who have been convicted of a crime, listed in this point, and whose sentences have become valid is at variance with Articles 8, 21, 104 of the Constitution, Articles 1, 4 and 15 of the International Covenant on Civil and Political Rights, ratified by the Republic of Belarus, and is not in conformity with Article 6 of the Criminal Code of the Republic of Belarus.
The Court also emphasise that issues, concerning the revision order of cases in accordance with Article 6 of the Criminal Code, including the issues on the circle of subjects who have the right to initiate the revision of such cases in the supervision order on the basis of Article 6 of the Criminal Code, should be settled in the Final Clauses of the Law.
Study of norm-making practice in the Republic of Belarus shows that the revision order of criminal cases has been determined by the resolutions of the Supreme Council of the Republic of Belarus on entering into force of the laws which have been adopted (resolution of the Supreme Council of the Republic of Belarus of 23 April 1992 "On putting into effect the Law of the Republic of Belarus "On introduction of amendments and alterations in certain acts of the Republic of Belarus", resolution of the Supreme Council of the Republic of Belarus of 1 March 1994 "On the order of entering into force the Law of the Republic of Belarus "On introduction of amendments and alterations in the Criminal Code of the Republic of Belarus and some other acts of the Republic of Belarus").
Examination of the materials of the case in the Court session also shows ambiguous understanding of the Law in part concerning its retrospective action on the basis of different approaches to the estimation of stolen property, damage caused and their influence on the qualification of a crime.
At the same time the Court states that the issue of application of Article 6 of the Criminal Code should be solved in the established order by general law courts in accordance with their competence while revising the specific cases all the facts taken into account.
On the basis of these facts and Article 116 of the Constitution, Articles 5, 6, 36, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To consider point 3 of Section III "Final Clauses" of the Law of 17 May 1997 "On introduction of amendments and alterations in the Criminal Code and the Code of Criminal Procedure of the Republic of Belarus" in part of impossibility to revise valid sentences in respect to those persons who had been convicted before the Law came into force for the commission of the crimes, listed in Article 72 as well as envisaged by parts 1, 2 and 3 Article 87, parts 1, 2 and 3 of Article 88, part 1 of Article 89, parts 1 and 2 of Article 90, parts 1 and 2 of Article 93, Article 94 and part 1 of Article 96 of the Criminal Code of the Republic of Belarus to be at variance with the Constitution of the Republic of Belarus and the International Covenant on Civil and Political Rights.
To consider it to be invalid in this part from 30 October 1997.
2. To advise the House of Representatives and the Council of the Republic of Belarus of the National Assembly of the Republic of Belarus until 30 October 1997 to bring point 3 of Section III "Final Clauses" of the Law of 17 May 1997 "On introduction of amendments and alterations in the Criminal Code and the Code of Criminal Procedure of the Republic of Belarus" into line with the Constitution and the International Covenant on Civil and Political Rights, having decided the issues concerning the revision of the cases in accordance with Article 6 of the Criminal Code the Republic of Belarus.
3. To publish the present Judgment in ten days time from the date of its passing in "Vedamasty Vyarkhovnaga Saveta Respubliki Belarus", "Narodnaya Gazeta", "Zvyazda" as well as in those publications where the Law of the Republic of Belarus of 17 May 1997 "On introduction of amendments and alterations in the Criminal Code and the Code of Criminal Procedure of the Republic of Belarus" was published.
4. The present Judgment shall come into force from the date of its passing, shall be final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the