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

 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 Certain Codes” in open court session.

Having heard the reporting judge T.V. Voronovich, 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 Certain Codes” 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 Certain Codes” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 25 June 2020, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 30 June 2020 and submitted to the President of the Republic of Belarus for signing.

The adoption of the Law providing for the use of modern information and communication technologies in economic, civil and criminal proceedings, as well as the improvement of the procedure for the payment of the state duty, is conditioned by the need to increase the level of openness and publicity of the activities of the courts, the accessibility of justice, the efficiency of the consideration of cases, strengthening guarantees of a comprehensive and objective investigation of the circumstances of the case with the aim of taking lawful, well-grounded and fair court rulings.

1. The Constitutional Court, within its powers to exercise obligatory preliminary review of the constitutionality of laws, considers the present Law based on the following provisions of the Constitution:

the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State (Article 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 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);

all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination (Article 22);

citizens of the Republic of Belarus shall contribute to funding public expenditure by means of state taxes, duties and other payments (Article 56);

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);

everyone shall be guaranteed protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law (Article 60.1);

justice shall be administered on the basis of the adversarial proceedings and equality of the parties to the trial (Article 115.1).

Guided by Article 54.1 of the Law “On the Constitutional Proceedings” the Constitutional Court considers 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.

2. The Constitution stipulates that the Republic of Belarus, as a state based on the rule of law, shall safeguard lawfulness and law and order (Articles 1.1 and 1.3), everyone shall be guaranteed protection of his rights and freedoms by a competent, independent and impartial court administering justice on the basis of the adversarial proceedings and equality of the parties to the trial (Articles 60.1 and 115.1).

The above constitutional provisions correspond to the provisions of the Universal Declaration of Human Rights (Articles 7, 8 and 10) and the International Covenant on Civil and Political Rights (Article 14), according to which everyone shall be entitled to a fair hearing within a reasonable time by a competent, independent and impartial tribunal established by law while respecting the principle of equality.

The Constitutional Court has repeatedly indicated in its decisions that the implementation of the principles and rules of the Constitution in laws creates the necessary legal mechanisms to ensure and protect the constitutional rights and freedoms of individuals, a fair balance of public and private interests, and to strengthen individuals’ confidence in public authorities.

The Constitutional Court notes that the right to judicial protection, guaranteeing effective restoration of rights through justice that meets the requirements of legality and fairness, presupposes the existence of effective procedural mechanisms that make it possible to exercise this right in full and at the same time take into account the criteria of procedural efficiency and economy in the use of remedies.

Exercising the powers enshrined in the Constitution (Articles 97.1.2, 98.1.1) to consider draft laws, including on the main content and principles of exercising the rights, freedoms and obligations of individuals, on legal proceedings, the legislator establishes mandatory audio or video recording of each hearing in the courts of first instance considering economic, civil and criminal cases; a separate procedural action of the courts considering economic and civil criminal cases performed outside the court room; the hearing in the court of appeal in case examination of witnesses, experts, specialists or participation of an interpreter is required in civil proceedings; determines the content of the summary record, the record of the court session and the record of a separate procedural action, as well as the procedure for bringing and considering comments on audio or video recording, the summary record, the record of the court session (Articles 1.23, 1.24, 1.36, 2.11, 2.12, 2.29, 3.15–3.17 of the Law).

The law introduces amendments to certain procedural codes: Code of Economic Procedure, Code of Civil Procedure, Code of Criminal Procedure (hereinafter – the CEP, the CCP, the CCrP, respectively).

According to Article 189 of the CEP, set out in the new wording, the course of each session of the court of first instance considering economic cases with the participation of persons involved in the case and other participants in the economic proceedings, as well as the course of performance of each separate procedural action of the court of first instance considering economic cases outside the court room, shall be recorded by using sound or video equipment and by drawing up a summary record in writing in compliance with the requirements of Articles 189¹.1 and 189¹.3 of this Code; in the absence of the technical ability to make sound or video recordings, the course of the court session or the performance of a separate procedural action of the court outside the court room shall be recorded by drawing up a record in writing in compliance with the requirements of Articles 189¹.2 and 189¹.3 of the CEP (Article 1.23 of the Law).

In accordance with the Law (Articles 1.34, 2.30, 3.23) the absence of sound or video recordings of the court session or the absence of the record of the court session in the case it was drawn up, or if the record was not signed by persons, obliged to do so, shall be an unconditional basis for canceling rulings taken by the courts.

The Constitutional Court notes that the provisions of the Law, which provide for the use of modern information and communication technologies in legal proceedings, contribute to a reliable and consistent reflection of the course of court proceedings, the issuance of lawful and well-grounded court decisions in accordance with the evidence examined in the court session, guarantee the exercise of effective supervision by the higher courts over the implementation by the courts of legal requirements when resolving cases and thereby ensure the exercise of the constitutional right of everyone to judicial protection of one’s rights and freedoms in full by means of justice that meets the criteria of openness, transparency and fairness.

3. The law (Articles 1.24, 2.12, 3.7 and 3.15) establishes that audio or video recording of the court session or the performance of a separate procedural action by the court outside the courtroom shall be kept continuously; an electronic data storage device containing a copy of the sound or video recording shall be attached to the case and shall be an integral part of the summary record (Article 189².2 of the CEP, Article 175.2 of the CPC); sound or video recordings of court sessions are sources of evidence; an electronic data storage device containing a copy of the audio or video recording of the court session shall be attached to the criminal case and shall be an integral part of the summary record of the court session (Articles 88.2 and 308.3 of the CCrP).

The Constitutional Court considers that the audio or video recording of the course of the court session or the performance of a separate procedural action, along with the summary record, the record of the court session, is an important source of information on the course of the consideration of the case and on the examination of evidence, ensuring the objectivity of the recording of the hearing, and also serves as one from the means of checking and assessing the legality, validity and fairness of decisions taken by the courts of first instance in economic, civil and criminal cases, establishing the grounds for canceling or changing court decisions in an appeal, cassation or supervisory procedure.

In order to ensure the effective exercise of the constitutional right of the parties and persons participating in the proceedings to appeal decisions, sentences and other court rulings (Article 115.3 of the Constitution), along with preserving the right of the persons participating in the proceedings to submit comments on incompleteness and existing irregularities in relation to the record of the court session, the Law (Articles 1.24, 2.12 and 3.17) provides for their right to submit comments also on audio or video recording and the summary record in economic and civil cases within five days after its signing, in criminal cases – within five days from the day of getting acquainted with the summary record, the record of the court session, the audio or video recording of the closed court session, obtaining a copy of the audio or video recording of the open court session with the possibility of extending the deadline for submitting comments on the request of the parties to ten days. For this right, there is the corresponding duty of the court within specific time limits (from three to ten days, depending on the type of process) to consider the comments received with the issuance of a court ruling and attaching the comments and a court ruling to the summary record, case materials (Articles 189³.2 – 189³.5 of the CEP, Articles 176.2 – 176.4 of the CCP, Articles 309.4, 310.1 and 310.2 of the CCrP).

Providing the persons participating in economic and civil proceedings and the parties in criminal proceedings with the opportunity to state their position regarding the completeness and correctness of the presentation of the relevant circumstances in the record of the court session, in the opinion of the Constitutional Court, is an important component of the constitutional right to effective judicial protection.

The Constitutional Court notes that the constitutional guarantee of the protection of the rights and freedoms of everyone by a competent, independent and impartial court within the time limits specified by law (Article 60.1 of the Constitution) presupposes that the participants in civil, criminal and economic proceedings respect the time limits established by procedural laws, which fully applies to the procedural deadlines determined by the Law for filing comments on the audio or video recording, the summary record, the record of the court session, and for the consideration of such comments by courts.

4. According to the Constitution all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination (Article 22), the courts shall administer justice on the basis of the Constitution and other normative acts adopted in accordance therewith (Article 112.1), justice shall be administered on the basis of the adversarial proceedings and equality of the parties to the trial (Article 115.1).

These constitutional provisions form the basis of principles of legal proceedings enshrined in procedural laws, such as equality before the law and court (Article 15 of the CEP, Article 12 of the CCP), equality of individuals before the law and equality of protection of their rights and legitimate interests (Article 20 of the CCrP), equality and adversarial nature of the parties (Articles 18 and 19 of the CEP), adversarial nature and equality of the parties (Article 19 of the CCP, Article 24 of the CCrP).

In accordance with the aforementioned provisions of the Constitution and principles of legal proceedings, the provisions of the Law provide in the procedural codes for the right of persons having a legal interest in the outcome of the case, as well as persons participating in the case, to get acquainted with the sound or video recordings, the summary record, the record of the court session and to receive a copy of the sound or video recordings of the course of an open court session (Articles 175.5 and 176.1 of the CCP, Articles 189².5 and 189³.1 of the CEP).

In criminal proceedings, the parties are given the opportunity of getting acquainted with the summary record, the record of the court session in full or with their parts as they are established. The parties also have the right to apply for obtaining a copy of the audio or video recording of the open court session on the electronic data storage device provided by them. As for the accused in custody, at his request, a copy of the sound or video recording of the open court hearing shall be sent by the court to the place of his detention; when a case is considered in a closed court session, at the request of the parties, the court provides the opportunity of getting acquainted with the sound or video recording of the closed court session (Article 309.1 of the CCrP).

Assessing the constitutionality of the cited norms of the Law, the Constitutional Court proceeds from the interconnected provisions of the Constitution, according to which 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 is guaranteed the protection of his personal non-property rights, such as personal liberty, inviolability and dignity, personal life, honour and dignity (Articles 25.1 and 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 hearing of cases in a closed court session shall be permitted only in the instances specified by law and in compliance with all rules of legal procedure (Article 114.2).

The provisions of international legal instruments, including Article 12 of the Universal Declaration of Human Rights, provide that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation; everyone has the right to the protection of the law against such interference or attacks.

The International Covenant on Civil and Political Rights establishes that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation (Article 17.1); each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognised in the present Covenant (Article 2.2).

The Constitutional Court notes that in accordance with the above provisions of the Constitution and international legal instruments in their connection with Article 59.1 of the Constitution, according to which 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, the legislator, within discretionary powers on the basis of the principle of proportionality, determines legal mechanisms, on the one hand, providing for the procedural rights of participants in legal proceedings necessary for the effective exercise of their constitutional right to judicial protection, and, on the other hand, establishing restrictions on the constitutional right to receive and use information when a case is considered in a closed court session, necessary to ensure and protect the constitutional rights and freedoms of other persons.

5. In accordance with the Constitution, the citizen shall assume responsibility before the State to discharge unwaveringly the duties imposed upon him by the Constitution; citizens of the Republic of Belarus shall contribute to funding public expenditure by means of state taxes, duties and other payments; the courts shall administer justice on the basis of the Constitution and other normative acts adopted in accordance therewith (Articles 2.2, 56, 112.1).

The above constitutional provisions are met by the provisions of the Tax Code of the Republic of Belarus placing the state duty among republican taxes, fees (duties) (Article 8.14); determining that the objects of taxation by the state duty include, among other things, the consideration by the courts of claims and other applications, complaints; appeal and cassation complaints; supervisory claims and appeals for supervisory reviews; complaints against decisions in cases on administrative offences; petitions for cancellation of the decision of an arbitration court, an international arbitration court located in the territory of the Republic of Belarus, another permanent arbitration body, petitions for securing a suit considered by an international arbitration court, an arbitration court (Article 284.1.1); the fact of payment of the state duty through the use of the automated information system of the unified settling and information space (hereinafter – the ERIP system) is confirmed by the presence in the ERIP system of information confirming the transfer of the state duty; the payer is obliged, when contacting the body that collects the state duty, to report the account number of the operation (transaction) in the ERIP system (Article 287.6.4).

The Law (paragraphs 14–17, 28–33, 35 and 37 of Article 1, paragraphs 27, 31–33 of Article 2) introduces amendments to the CEP and CCP, establishing the possibility of confirmation by interested parties of the payment of the state duty through the use of the ERIP system by reporting the account number of the operation (transaction) in the ERIP system to the court.

Thus, in accordance Article 114.5 of the CEP, set out in the new wording, a document confirming the payment of the state duty shall be attached to requests for securing a claim considered by an international arbitration court, an arbitration court, except for the case when the state duty was paid through the use of ERIP system and the account number of the operation (transaction) in the ERIP system is indicated in the request or communicated to the court considering economic cases in another way when submitting the request (Article 1.14 of the Law).

According to Article 405.3 of the CCP, set out in the new wording, if the appeal is payable, then a document confirming the payment of the state duty must be attached to it, except for the case when the state duty was paid through the use of the ERIP system and the account number of the operation (transaction) in the ERIP system is indicated in the appeal or communicated to the court in another way when filing an appeal (Article 2.27 of the Law).

Similar amendments are introduced by the Law to some other provisions of the CEP and the CCP determining the procedure for paying the state duty at different stages of economic and civil proceedings.

In its decisions the Constitutional Court noted that from the interconnected provisions of Articles 21.3, 59.1 of the Constitution and international legal instruments (Article 8 of the Universal Declaration of Human Rights, Article 14.1 of the International Covenant on Civil and Political Rights) it follows that one of the most important components of the right to judicial protection is the accessibility of justice, which includes, among other things, the absence of excessive, unreasonable legal obstacles to going to court, considering and resolving cases.

The Constitutional Court confirms this conclusion and notes that the above provisions of the Law, which improve the accessibility of justice, as well as the consistency of the provisions of economic and civil procedural laws with the provisions of the Tax Code, meet Articles 7.1, 7.2, 56, 60.1 of the Constitution.

The Constitutional Court considers that the provisions of the Law, providing for the introduction of modern information and communication technologies in legal proceedings to ensure openness, accessibility and efficiency of justice, guarantee the most complete and effective exercise of everyone's constitutional right to judicial protection, as well as other principles and rules 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:

1. To recognise the Law of the Republic of Belarus “On Making Amendments to Certain Codes” to be conforming to the Constitution of the Republic of Belarus.
2. The present Decision shall come into force from the date of adoption.
3. To publish the present Decision in accordance with legislative acts.

Presiding Officer –

Petr Miklashevich,

Chairman

Constitutional Court

Republic of Belarus