10 June 2019 № D-1172/2019
The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman P.P. Miklashevich, Deputy Chairperson N.A. Karpovich, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, L.G. Kozyreva, V.N. Ryabtsev, L.M. Ryabtsev O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov
on the basis of Article 116.1 of the Constitution of the Republic of Belarus, Article 22.3.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Article 98 and Article 101.1 of the Law of the Republic of Belarus “On the Constitutional Proceedings”
in the exercise of obligatory preliminary review considered the constitutionality of the Law of the Republic of Belarus “On Making Amendments to the Law of the Republic of Belarus “On Postal Communication” in open court session.
Having heard the reporting judge S.P. Chigrinov, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Making Amendments to the Law of the Republic of Belarus “On Postal Communication” and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following.
The Law of the Republic of Belarus “On Making Amendments to the Law of the Republic of Belarus “On Postal Communication” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 23 May 2019, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 31 May 2019 and submitted to the President of the Republic of Belarus for signing.
The Law was adopted in order to improve the legal, organisational and economic foundations of activities in the field of postal services, taking into account international treaties of the Republic of Belarus and the practice of applying the Law of the Republic of Belarus “On Postal Communication”, as well as to ensure a stable and effective functioning of postal services in the Republic of Belarus.
- The Constitutional Court, within its powers to exercise obligatory preliminary review of the constitutionality of laws, considers the present Law taking into account the need to ensure the supremacy of the Constitution and the direct application of its rules, based on the following provisions of the Constitution:
the Republic of Belarus is a social state based on the rule of law; the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State (Articles 1.1 and 2.1);
the Republic of Belarus shall be bound by the principle of supremacy of law; the State and all the bodies and officials thereof shall operate within the confines of the Constitution and acts of legislation adopted in accordance therewith (Articles 7.1 and 7.2);
the Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith (Article 8.1);
the State shall regulate economic activities in the interests of the individual and society (Article 13.5); the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State's international obligations (Article 21.3);
everyone shall have the right to protection against unlawful interference with his private life, including encroachments on the privacy of his correspondence and telephone and other communications, and on his honour and dignity (Article 28);
citizens of the Republic of Belarus shall be guaranteed the right to receive, store and disseminate complete, reliable and timely information on the activities of state bodies and public associations, on political, economic, cultural and international life, and on the state of the environment (Article 34.1);
the State shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution (Article 59.1).
Guided by Article 54.1 of the Law “On the Constitutional Proceedings” the Constitutional Court reviews the constitutionality of the Law and determines whether the contents of its provisions, its form, delineation of competencies between state bodies and the procedure for its adoption are conforming to the Constitution, international legal instruments, ratified by the Republic of Belarus.
- Article 8.2 of the Constitution establishes that the Republic of Belarus in conformity with the rules of international law may on a voluntary basis enter interstate formations and withdraw from them.
Based on this constitutional provision, the Republic of Belarus is a member of the Universal Postal Union – an intergovernmental organisation with its member states forming a single postal territory for the reciprocal exchange of postal items (Article 1.1 of the Constitution of the Universal Postal Union).
The Republic of Belarus, as a member state of the Universal Postal Union, in order to optimise the international and intra-national exchange of postal items, by the Law of 10 November 2017 ratified the Ninth Additional Protocol to the Constitution of the Universal Postal Union, the First Additional Protocol to the General Regulations of the Universal Postal Union, the Universal Postal Convention and the Final Protocol to the Universal Postal Convention, the Postal Payment Services Agreement and the Final Protocol to the Postal Payment Services Agreement adopted at the XXVI Universal Postal Congress in Istanbul on 6 October 2016.
In view of the said acts of the Universal Postal Union (hereinafter – the UPU), the following amendments were made to Articles 1, 15 and 17 of the Law of the Republic of Belarus “On Postal Communication”: the term “cecogram” as designating one of the forms of written correspondence is replaced by the term “items for the blind”; the allowable weight of certain types of postal items is increased (in particular, parcels – from 30 to 50 kilograms); the classification criteria for postal items are specified, depending on the speed of their processing and their content (documents or goods), as well as on their format; the list of exclusive rights of the national postal operator is supplemented by the rights to use the forms and documents provided for by the UPU acts when organising the provision of postal services and the exchange of international mail and to create places (institutions) for international postal exchange outside the Republic of Belarus in the manner and under the conditions determined by the UPU acts and the legislation of a foreign state in which such a place (institution) of international postal exchange is created, in compliance with the legislation of the Republic of Belarus.
Relations in the field of international mail are also governed by the provisions of international legal instruments that constitute the law of the Eurasian Economic Union (hereinafter – the EAEU), in particular by Chapter 40 of the EAEU Customs Code (Appendix No. 1 to the Treaty on the EAEU Customs Code).
The law takes into account the relevant provisions of the EAEU Customs Code. Thus, the definition of the term “international mailing” enshrined in Article 1.18 of the Law “On Postal Communication” is consistent with the definition of the term “international mailings” in Article 2.19 of the EAEU Customs Code.
Assessing this legislative regulation, the Constitutional Court considers that it meets the requirements of Article 8 of the Constitution on the recognition by the Republic of Belarus of the priority of generally recognised principles of international law and ensuring compliance of laws therewith, as well as of the generally recognised principle of international law “treaties must be respected” (pacta sunt servanda) (Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969 stipulating that every treaty in force is binding upon the parties to it and must be performed by them in good faith) and Article 27 of the said Convention (a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty).
In addition, such legislative regulation is attentive to the legal position of the Constitutional Court, expressed in the decision of 8 July 2016 “On the Conformity of the Law of the Republic of Belarus “On Making Alterations and Addenda to the Criminal Code of the Republic of Belarus, the Code of Administrative Offences of the Republic of Belarus and the Procedural Executive Code of Administrative Offences of the Republic of Belarus” to the Constitution of the Republic of Belarus”. In this decision, the Constitutional Court, based on the relevance of issues of relationship of national and supranational law, drew the attention of the legislator to the need to take into account the EAEU law when working on further improving the legal regulation of the relevant relations and to ensure uniform principles and approaches to harmonisation and unification of the legislation of the member states of the said interstate formation.
- According to the amendments introduced by the Law (Article 1.2), the provision of Article 3.1 of the Law “On Postal Communication” that the legislation on postal communication shall consist, inter alia, of the international treaties of the Republic of Belarus has been removed.
When assessing this legislative change, the Constitutional Court noted that several laws of the Republic of Belarus contain provisions according to which the international treaties of the Republic of Belarus form an integral part of the current domestic law (Article 6.2 of the Civil Code, Article 3.2 of the Banking Code, Article 3.6 of the Budget Code, Article 4.1 of the Code on Culture). Such law-making practice takes into account the important role and significance of international treaties in the Belarusian legal system and obliges state bodies and officials to directly apply the rules of international law.
The Constitutional Court considers that the exclusion of the international treaties of the Republic of Belarus from the legislation on postal communication creates legal uncertainty, since law-enforcement officials and individuals may have an erroneous opinion about the optional, non-binding nature of the international treaties of the Republic of Belarus when regulating specific public relations.
In this regard, the Constitutional Court confirms the legal position formulated in the decision of 7 May 2018 “On the Conformity of the Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On the Treaties of the Republic of Belarus” to the Constitution of the Republic of Belarus” that, along with the acts of domestic law – laws of the Republic of Belarus, decrees and edicts of the President of the Republic of Belarus, subordinate normative legal acts – the international treaties of the Republic of Belarus shall be an integral part of the system of law that is in effect in the territory of the Republic of Belarus.
At the same time, the Constitutional Court draws the attention of the legislator to that, if necessary, the legal regulation of relevant public relations, along with the Constitution, laws, acts of the President of the Republic of Belarus, other normative legal acts, should also include the international treaties of the Republic of Belarus, since they, together with the acts of domestic legislation, form the legal system of the Republic of Belarus.
- According to the Constitution, the Republic of Belarus shall be bound by the principle of supremacy of law; the State and all the bodies and officials thereof shall operate within the confines of the Constitution and acts of legislation adopted in accordance therewith (Articles 7.1 and 7.2).
As indicated in several decisions of the Constitutional Court, legal certainty, which implies clarity, accuracy, consistency and logical coherence of legal rules, is one of the elements of the rule of law; the observance of the principle of legal certainty in the rule-making creates conditions for the uniformity and predictability of the law enforcement practice, thus increasing individuals’ trust in the state.
The Law sets out Article 1 of the Law “On Postal Communication” in a new wording that reveals the definitions of its basic terms “address data of users of postal services”, “internal postal item”, “courier services”, “international postal communication”, “national postal electronic system”, “postal service operator”, “postal items”, “special items”, “secrecy of postal communication”, etc.
The Constitutional Court notes that the normative enshrinement of this terminology results from the need to ensure clarity and consistency of legal regulation, unambiguous understanding of the rules of the Law “On Postal Communication” and exclusion of their various interpretation in the law enforcement practice, which is consistent with the principle of legal certainty as the most important component of the constitutional principle of the rule of law.
- In the Message to the President of the Republic of Belarus and the Houses of the National Assembly of the Republic of Belarus “On Constitutional Legality in the Republic of Belarus in 2018” the Constitutional Court noted that given the increasing role of informatisation and digitalisation at the present stage, the legal regulation of public relations in the information sphere should be a priority.
The law provides for the creation of the national postal electronic system, which, in accordance with a new wording of Article 1.20 of the Law “On Postal Communication”, is understood as a secure automated information system of the national postal operator that provides for the receipt, processing, storage, delivery (handing) of postal items (simple or registered) in electronic form, notifications on postal items, notifications of the receipt, transmission of other messages related to the receipt, processing, storage, delivery (handing) of postal items, as well as the presentation of the confirmation of their receipt and delivery (handing).
A new wording of Article 15.8 of the Law “On Postal Communication” provides that the receipt, processing, storage, delivery (handing) of postal items (simple or registered) in electronic form, notifications on postal items, notifications of the receipt, transmission of other messages related to the receipt, processing, storage, delivery (handing) of postal items, as well as the presentation of the confirmation of their receipt and delivery (handing) can be carried out by means of the national postal electronic system.
Accordingly, Article 21.3 of the Law “On Postal Communication” is supplemented by the provision establishing the right of users of postal services to send and receive postal items (simple or registered) in electronic form, to receive notifications on postal items, notifications of the receipt and other messages related to the receipt, processing, storage, delivery (handing) of postal items, as well as to receive the confirmation of their receipt and delivery (handing) by means of the national postal electronic system.
In addition, the Law (Article 1.1) introduces the term “hybrid shipment”, which, in accordance with a new wording of Article 1.7 of the Law “On Postal Communication”, is understood as sending of written correspondence in electronic form, the delivery (handing) of which is carried out in physical form, as well as sending written correspondence in physical form, the delivery (handing) of which is carried out in electronic form.
Such legal regulation, in the opinion of the Constitutional Court, is aimed at ensuring digitalisation of the postal services, increasing their efficiency, reducing the cost of postal services, expanding the communicative capabilities of the population to create additional conditions for the exercise of the constitutional rights of citizens of the Republic of Belarus to receive, store and disseminate complete, reliable and timely information of the activities of state bodies and public associations on political, economic, cultural and international life, and on the state of the environment (Article 34.1 of the Constitution).
- In accordance with the Law (Article 1.1), secrecy of postal communication is understood as privacy of correspondence, mailings and other messages falling within the scope of activities of postal operators, which cannot be disclosed without the consent of the user of postal services, unless otherwise provided by this Law and other legislative acts (a new wording of Article 1.47 of the Law “On Postal Communication”).
The Constitutional Court notes that the regulation of the secrecy of postal communication is consistent with the provisions of the Constitution stipulating that everyone shall have the right to protection against unlawful interference with his private life, including encroachments on the privacy of his correspondence and telephone and other communications (Article 28); the use of information may be restricted by the legislation with the purpose to safeguard honour, dignity, personal and family life of the citizens and the full exercise of their rights (Article 34.3).
The provisions of the Law (Articles 1.6 and 1.10) expand the list of cases when information related to such secrecy may be released.
Thus, according to Articles 13.3 and 17.8 of the Law “On Postal Communication” (as amended by the Law), information about the address data of users of postal services, postal items and their contents, and other messages that fall within the scope of activities of postal operators constitute the secrecy of postal communication and may be disclosed only to senders, recipients or their legal representatives (representatives), state bodies in cases specified by legislative acts, as well as in the exercise by the national operator of postal services of its exclusive right to transmit this information by electronic means to other designated postal operators of members states of the UPU, which are destination countries and (or) transit countries for mailings or money and which require such information for the provision of postal services.
According to the Constitutional Court, cases for providing the information constituting the secrecy of postal communication, established by the Law, without the consent of a user of postal services are justified, since they are aimed at timely and accurate delivery of postal correspondence, which meets the provisions of Article 34.1 of the Constitution stipulating that citizens of the Republic of Belarus shall be guaranteed the right to receive and disseminate information.
In accordance with the Law (Article 1.11), Article 19 of the Law “On Postal Communication” is supplemented by the rule according to which, when providing postal services, the collection, processing, storage of personal data of individuals, as well as the use of these data shall be carried out by the postal operator without the written consent of individuals in compliance with the requirements established by legislative acts on the protection of information, the distribution and (or) provision of which is restricted.
The Constitutional Court considers that the fact that the Law gives to the postal service operator, when providing postal services, the right to collect, process, store personal data of individuals, and also to use these data without the written consent of individuals is legitimate, since such operations with personal data of individuals should be carried out by the postal operator in compliance with the requirements established by legislative acts on the protection of information, the distribution and (or) provision of which is restricted. In addition, the communication by an individual – the recipient of postal services – of his personal data is necessary for the reliable identification of a person with the aim of errorfree delivery of mailings. When contacting the post office with the intention of receiving a postal item, the person thereby expressly agrees to provide his personal data to the postal operator.
- The current provision on the exclusive right of the national postal operator to use mailboxes has been removed from a new wording of Article 17 of the Law “On Postal Communication”. The national postal operator on a contractual basis shall ensure the possibility to use its mailboxes by other postal operators when providing postal services (Articles 1.9.5 and 1.10 of the Law).
According to the Constitutional Court, such legal regulation is based on Article 13.2 of the Constitution, which establishes that the State shall grant equal rights to all to conduct economic and other activities, expands the possibilities of providing postal services by other postal operators, thus creating conditions for the development of competition in this field and contributing to the availability of postal services.
Based on the analysis of the provisions of the Law, the Constitutional Court believes that they are aimed at providing individuals, legal entities, state bodies and organisations with accessible means of communication, improving the efficiency of the functioning of postal facilities, improving the quality and efficiency of postal services in order to implement the provisions of the Constitution guaranteeing the right of citizens of the Republic of Belarus to receive and disseminate information (Article 34.1 of the Constitution).
The law was adopted by the House of Representatives of the National Assembly of the Republic of Belarus and approved by the Council of the Republic of the National Assembly of the Republic of Belarus within the powers in accordance with Articles 97.1.2 and 98.1.1 of the Constitution.
In view of the foregoing the Constitutional Court concludes that the Law is in conformity with the Constitution as regards the contents of its rules, form of the act, procedure of its adoption and delineation of competence between state bodies.
Guided by Articles 116.1 and 116.7 of the Constitution of the Republic of Belarus, Article 24.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 103–105 of the Law of the Republic of Belarus “On the Constitutional Proceedings” the Constitutional Court of the Republic of Belarus
RULED:
- To recognise the Law of the Republic of Belarus “On Making Amendments to the Law of the Republic of Belarus “On Postal Communication” to be conforming to the Constitution of the Republic of Belarus.
- The present Decision shall come into force from the date of adoption.
- To publish the present Decision in accordance with legislative acts.
Presiding Officer –
Petr Miklashevich,
Chairman
Constitutional Court
Republic of Belarus