The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman P.P. Miklashevich, Deputy Chairperson N.A. Karpovich, judges A.N. Bodak, 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

considered the case “On Legal Regulation of Written Explanations on the Application of Normative Legal Acts” in open court session.

The court session was attended by:

Ms N.V. Guyvik, Chairperson of the Standing Commission on Law of the House of Representatives of the National Assembly of the Republic of Belarus ‒ the authorised representative of the House of Representatives of the National Assembly of the Republic of Belarus in the Constitutional Court;

the representatives:

of the Supreme Court of the Republic of Belarus ‒  Ms Zh.B. Shkurdyuk, Deputy Chairperson of the Supreme Court of the Republic of Belarus;

of the State Control Committee of the Republic of Belarus – Mr V.N. Gerasimov, First Deputy Chairman of the State Control Committee of the Republic of Belarus;

of the Prosecutor General's Office of the Republic of Belarus – Mr G.Y. Dysko, Deputy Prosecutor General of the Republic of Belarus.

The proceedings were initiated by the Constitutional Court on 17 June 2019 in accordance with Article 116.1 of the Constitution of the Republic of Belarus (hereinafter – the Constitution), Article 22.3.8 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 158.1 and 158.3 of the Law of the Republic of Belarus “On the Constitutional Proceedings” on the basis of an application submitted to the Constitutional Court by the Republican Public Association “Belarusian Scientific and Industrial Association”. The applicant points out that the legal rules delegating the right (imposing the obligation) to the executive authorities to provide explanations on the application of the legislation do not contain provisions on the legal status of such explanations; they do not establish the responsibility of the executive authorities for non-fulfillment or improper fulfillment of this obligation; they do not guarantee judicial protection of the rights and legitimate interests of economic entities. According to the Belarusian Scientific and Industrial Association, the legislative regulation providing executive bodies with the right and, at the same time, imposing an obligation on them to provide explanations on the application of the legislation, is marked by gaps and legal uncertainty.

Having heard the reporting judge O.G. Sergeeva, the authorised representative of the House of Representatives of the National Assembly of the Republic of Belarus in the Constitutional Court,  the representatives of the Supreme Court of the Republic of Belarus, the State Control Committee of the Republic of Belarus, the Prosecutor General's Office of the Republic of Belarus, having analysed the provisions of the Constitution, the Law of the Republic of Belarus “On Normative Legal Acts” and other legislative acts of the Republic of Belarus, having examined the submitted documents and other case materials the Constitutional Court reasoned as follows.

1. The Constitution proclaims the Republic of Belarus a state based on the rule of law and stipulates that 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); safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State  which 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 (Articles 21.1 and 21.3).

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).

The Constitutional Court in its decisions has repeatedly pointed out that the constitutional provisions imply the obligations of the State to form a legal system that meets the essence of a state based on the rule of law and ensures legal certainty in the rule-making and law enforcement, thus creating conditions for ensuring the constitutional values ​​and goals; to establish effective legal regulation of public relations in order to to ensure the exercise of the constitutional rights and freedoms of individuals, the proper implementation of legislative acts.

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 2017” the Constitutional Court noted that the constitutionalisation of law, which requires effective legal regulation of public relations and elimination of gaps, collisions and legal uncertainty in the current legislation in order to ensure and protect the constitutional rights and freedoms of everyone, is a mandatory condition for the establishment of modern constitutionalism. In this regard, the attention of the legislator and other rule-making bodies was drawn to the inadmissibility of weakening of the constitutional guarantees of human rights and freedoms due to gaps and other defects of legal regulation in normative legal acts.

2. In accordance with Article 39 of the Law “On the Constitutional Proceedings” the Constitutional Court sent requests to the Supreme Court, the State Control Committee, the General Prosecutor's Office, the Ministry of Justice, the National Centre of Legislation and Legal Research, the Belarusian National Bar Association, the Civil Law Department and the Department of Financial Law and Legal Regulation of Economic Activity of the Faculty of Law of the Belarusian State University.

The Supreme Court points out that explanations of state bodies (organisations) on the application of normative legal acts that are not normative legal acts themselves and, therefore, are not binding, they cannot influence the decision made by the court and be, for example, grounds for exemption from the responsibility established by legislative acts when carrying out activities in accordance with such explanations; written explanations are not an official interpretation of normative legal acts, and according to Article 69.2.2 of the Law “On Normative Legal Acts”, such explanations shall be issued upon applications of individuals and legal entities in the manner prescribed by the legislation on appeals of individuals and legal entities.

The State Control Committee considers that the explanations of state bodies (organisations) are not part of the legislation and cannot have normative force, since according to Article 69.3 of the Law “On Normative Legal Acts” they should not contain any provisions other than legal requirements; when assessing compliance with legislation in a specific field, courts, law enforcement and controlling (supervisory) bodies shall be guided by the legislative rules, and therefore explanations cannot have any prevailing or binding probative value. In the opinion of the State Control Committee, the current wording of Article 69 of the Law “On Normative Legal Acts” is sufficient to determine the legal regime for explanations.

The Prosecutor General's Office believes that written explanations of authorised state bodies (organisations) on the application of normative legal acts express the position (opinion) of officials on any matter and do not have normative properties; at the same time, since a significant part of explanations is given by government bodies (organisations) in the form of letters sent to an indefinite number of persons by posting on the official website of the relevant body and they often contain instructions, rules of conduct or organisational and administrative instructions for subordinate bodies, such explanations acquire the nature of acts with normative properties. In view of the foregoing, the Prosecutor General’s Office believes that the provisions of the Law “On Normative Legal Acts” may be improved in terms of determining the legal status of explanations, requirements for their content and publication.

The Ministry of Justice indicates that there are no gaps and legal uncertainties in Article 69 of the Law “On Normative Legal Acts”, which establishes the right of law-making bodies (officials) that carry out public policy, legal regulation and management in a specific field of activity or whose competence includes relevant issues to give written explanations on the application of normative legal acts. The Ministry notes that written explanations on the application of normative legal acts given by the authorised state bodies (organisations) do not contain properties of a normative legal act, respectively, they do not have normative features; courts, law enforcement and supervisory bodies may take into account written explanations of state bodies if such explanations do not contradict the Constitution and legislation.

In the opinion of the National Centre of Legislation and Legal Research, the explanations given by a state body (organisation) are not binding and do not constitute its decision in the form of a normative or non-normative legal act, as well as of an act adopted as a result of the audit; however, the application by an individual or legal entity in practice in specific situations of such explanations that are not legal acts (normative and non-normative) and an official interpretation of the legislation does not exclude the possibility of negative consequences. On this basis, it was concluded that the issue of additional regulation of the status of explanations on normative legal acts can be considered as part of a complex revision of the Law “On Normative Legal Acts” after studying the practice of its application and taking into account foreign experience.

The Belarusian National Bar Association notes the presence of a gap and legal uncertainty in the provisions of the Law “On Normative Legal Acts” establishing the right of state bodies (organisations) to provide written explanations on the application of normative legal acts, since the legal essence (nature) and legal force of such explanations are not clearly defined.

According to the Civil Law Department of the Faculty of Law of the Belarusian State University, the analysis of the legislation has shown a lack of a coherent and understandable system for exercising the right of state bodies to provide written explanations on the application of normative legal acts; there is legal uncertainty in the legislation regarding the legal force and normative features of written explanations of state bodies (officials) on the application of normative legal acts.

The Department of Financial Law and Legal Regulation of Economic Activity of the Faculty of Law of the Belarusian State University believes that written explanations, based on Articles 2.8, 4 and 69 of the Law "On Normative Legal Acts", do not have normative properties, nor do they relate to non-normative legal acts, although these explanations (including erroneous ones) are inherently such. Based on the above, it is concluded that the Law “On Normative Legal Acts” contains a gap because of the lack of provisions on the mandatory (non-binding) nature of written explanations, on their attribution (non-attribution) to non-normative legal acts, and to what extent courts, law enforcement and supervisory bodies should take such written explanations into account when assessing compliance with legislation in a particular field of ​​legal relations.

3. In accordance with the Law “On Normative Legal Acts”, law-making bodies (officials) that carry out public policy, legal regulation and management in a specific field of activity or whose competence includes relevant issues to give written explanations on the application of normative legal acts, or other authorised state bodies (organisations), if necessary, shall prepare written explanations on the application of normative legal acts (Article 69.2.1), which, in accordance with Article 73.1 of the said Law, are one of the ways of ensuring the implementation of normative legal acts after their adoption (issuance).

It should be borne in mind that, by virtue of Article 69.3 of the Law “On Normative Legal Acts”, in the case of both official interpretation and written explanation of a normative legal act, it is not allowed to change the content of its normative legal prescriptions, introduce or strengthen the responsibility of individuals and legal entities, limit their rights and freedoms or deprive them of existing rights and freedoms, impose additional (increased) duties compared to existing ones, establish a complicated procedure for the realisation of these rights, freedoms and duties.

It follows from Article 69.2 of the Law “On Normative Legal Acts” that the authorised state bodies (organisations) have the right, on their own initiative, if necessary, to prepare written explanations addressed to an indefinite circle of people.

The powers of state bodies carrying out legal regulation and management in a particular field of activity or whose competence includes relevant issues, or other authorised state bodies (organisations) to provide written explanations on the application of normative legal acts are enshrined in several laws of the Republic Belarus:

the Law “On Investment Funds” establishes that the authorised body, when carrying out state regulation of relations in the field of investment funds, shall provide explanations on the application of this Law (Article 5);

according to the Law “On Public Procurement of Goods (Works, Services)”, the authorised state body shall provide explanations on issues related to the application of the legislation on public procurement (Article 10);

in accordance with the Law “On Public-Private Partnership”, the Ministry of Economy of the Republic of Belarus within its competence in the field of public-private partnership shall provide explanations on issues related to the application of the legislation of the Republic of Belarus on public-private partnership (Article 9);

by virtue of Article 14 of the Law “On Counteracting Monopolistic Activity and Development of Competition”, the authorised republican government body in the field of counteracting monopolistic activity and development of competition (competition authority), in accordance with the legislation, shall provide explanations on the application of competition law;

The Law “On the Securities Market” stipulates that the republican government body, carrying out state regulation of the securities market, shall provide explanations on the application of this Law (Article 8).

The granting by law to state bodies of the power to give written explanations on the application of legislation in a particular field of activity is consistent with the principle of the rule of law, according to which 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 of the Constitution).

The establishment of such powers, based on the provisions of the Law “On Normative Legal Acts”, is aimed at the proper execution of normative legal acts, including the highest level of compliance with the legislative requirements in a particular field and their uniform application.

At the same time, the Constitutional Court notes that the Law “On Normative Legal Acts” and the above-mentioned laws conferring the right (or imposing the obligation) to give written explanations on the application of the legislation in certain areas of public relations to (on) state bodies do not contain provisions on the legal force and character of such explanations.

4. Having examined the legal nature of written explanations on the application of legislative acts prepared by the authorised state bodies, including the Ministry of Antimonopoly Regulation and Trade of the Republic of Belarus, the Ministry of Economy of the Republic of Belarus, the Ministry of Finance of the Republic of Belarus, the Constitutional Court found that:

1) they are prepared by the ministries, which are republican government bodies carrying out public policy, regulation and management in a specific field of activity, whose competence includes the relevant issues and coordination of activities of other republican government bodies in this field. Based on this, written explanations of state bodies essentially represent a way of carrying out legal education work and providing methodological guidance for law enforcement in order to ensure the uniform practical application of normative legal acts in the given field of ​​public relations.

Article 69.2.1 of the Law “On Normative Legal Acts”, according to which the authorised state bodies (organisations) are entitled to prepare written explanations on the application of normative legal acts, provides that such explanations are prepared “if necessary”. The right to clarify the application of legislative acts by the relevant authority does not arise from the fact of their adoption, but as a consequence of a situation in law enforcement that requires an additional, proper and appropriate level of analysis and clarification of the application of such acts in order to avoid errors entailing negative legal consequences;

2) they are given by a competent authorised state body in writing and without following the procedure established for the adoption of normative legal acts;

3) they cannot change the legal regulation of relations in the given field as required by Article 69.3 of the Law “On Normative Legal Acts”;

4) they express the position of state bodies on the application of the legislative rules in a particular sector (field of activity) and since written explanations on the application of normative legal acts, which are binding on all individuals and organisations, are prepared by the authorised competent state bodies (organisations), they are available to an indefinite circle of persons;

5) they are applied in practice by individuals and legal entities in the exercise of their rights, freedoms and legitimate interests, as well as in the performance of duties in a particular sector (field of activity). Individuals and legal entities, when protecting their rights, freedoms and legitimate interests, refer to such explanations as the documents that guided them in their activities in order to clarify the application of legal rules.

In the light of the foregoing, the Constitutional Court considers that written explanations  given by the authorised state bodies (organisations) on the application of normative legal acts are of a special legal nature and do not belong to normative legal acts, do not specify and do not supplement legal regulation, but they contain recommendations intended to form the consistent application of existing legal rules.

5. The Law “On Normative Legal Acts”, aimed at regulating relations in the rule-making, defines legal terms, institutions, the content of the stages of the rule-making, the system and types of normative legal acts, requirements for their entry into force, application and implementation.

At the same time, this Law, providing the authorised state bodies (organisations) with the right, if necessary, to prepare written explanations on the application of normative legal acts, does not contain provisions on the legal force and nature of such written explanations.

Based on the analysis of the current legislation, law enforcement and taking into account the different opinions of state bodies and other organisations regarding the legal regulation of written explanations of authorised state bodies (organisations) on the application of normative legal acts, the Constitutional Court considers that the Law “On Normative Legal Acts” contains legal uncertainty in the legal regulation of written explanations prepared by the authorised state bodies (organisations).

This legal uncertainty in the legal regulation of written explanations on the application of normative legal acts, in the opinion of the Constitutional Court, does not allow to fully ensure the constitutional principle of the rule of law, according to which a legal act should effectively influence public relations, contain clear, concise and unambiguous legal rules that establish the precise requirements for the actions of individuals and legal entities. The said defect of legal regulation gives rise to ambiguous understanding of legal rules and their inconsistent application, which may lead to violation of the constitutional guarantees for the exercise and protection of the rights, freedoms and legitimate interests of individuals and legal entities, as well as may cause damage to a person or property of an individual or legal entity.

By virtue of the inter-related provisions of Articles 1.1, 1.3, 2.1, 7.1, 21.1, 21.3, 59.1 of the Constitution the Constitutional Court considers that, in order to ensure the principle of the rule of law, which requires the timely elimination of legal uncertainty in normative legal acts, the creation of a legal system in which normative legal acts are in a systemic relationship, are consistent with each other, and clarity, accuracy, consistency and logical coherence of legal rules are ensured, the legislator should regulate legal relations concerning written explanations given by the authorised state bodies (organisations) on the application of normative legal acts.

In view of the foregoing, by virtue of Articles 116.1 and 116.7 of the Constitution of the Republic of Belarus, Articles 22.3.8 and 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 74.2, 75, 77, 80, 84, 85.17 and 160 of the Law of the Republic of Belarus “On Constitutional Proceedings” the Constitutional Court of the Republic of Belarus

RULED:

1. In order to ensure the constitutional principle of the rule of law, to eliminate legal uncertainty in the legal regulation of written explanations given by the authorised state bodies (organisations) on the application of normative legal acts, to recognise the need to make amendments to the Law of the Republic of Belarus “On Normative Legal Acts” aimed at establishing the legal force and character of written explanations on the application of normative legal acts.
2. To suggest to the Council of Ministers of the Republic of Belarus to prepare the relevant draft law amending the Law of the Republic of Belarus “On Normative Legal Acts” and to submit it to the House of Representatives of the National Assembly of the Republic of Belarus under the established procedure.
3. The present Decision shall come into force from the date of its adoption.
4. To publish the present Decision in accordance with legislative acts.

Presiding Officer –
Petr Miklashevich,

Chairman of the Constitutional Court

of the Republic of Belarus