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On July 11, 2018 the Constitutional Court of the Republic of Belarus took a decision “On the right to appeal against disciplinary action and relevant appeal procedure provided for the convicts placed under restraint, subject to correctional labour and other punishments” (reporting judge – Stanislav Danilyuk).

In order to guarantee everyone’s constitutional right to protection by a court, to ensure the rule of law and legal certainty in current legal regulation the Constitutional Court recognised the need to amend the Criminal Executive Code and the Civil Procedure Code of the Republic of Belarus by stipulating the right to appeal in civil proceedings against disciplinary action provided for the convicts placed under restraint, subject to correctional labour and other punishments.

The proceedings were initiated by the Constitutional Court in accordance with Article 158.1 and Article 158.4 of the Law of the Republic of Belarus “On the Constitutional Proceedings”. The Court was applied to by Sadovskaya O.P. requesting to guarantee the constitutional right to judicial remedy of the convicts placed under restraint by stipulating in law their right to appeal against disciplinary action and relevant appeal procedure in case the convicts break the rules of serving the sentence.

According to the Constitution 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).

Main duties and rights of the convicts are enshrined in articles 9 and 10 of the Criminal Executive Code of the Republic of Belarus (hereinafter – the CEC). In case of failure to perform the duties imposed the convicted persons may be taken disciplinary action against or given an official warning (Article 9.4 of the CEC).

It should be noted that the Criminal Executive Code and the Civil Procedure Code provide the right to appeal against disciplinary action and appeal procedure for persons convicted to detention, imprisonment and life imprisonment (Article 61.14, Article 113.11 of the CEC, paragraph 6.1 of Chapter 29 of the CPC). However, the convicts placed under restraint, subject to correctional labour and other punishments are not entitled to appeal against the disciplinary action of an official.

In its decision the Constitutional Court emphasised that legal regulation set out in the CEC for consideration of appeals against disciplinary action, taken by the administration of bodies and institutions executing punishment and other measures of criminal responsibility, does not provide for full and effective judicial protection of the convicts’ rights.

The level of protection guarantees by a court for the convicts placed under restraint, subject to correctional labour and other punishments in case they allege their rights and legitimate interests have been violated by disciplinary action of officials of bodies and institutions, executing punishment and other measures of criminal responsibility, seems to be lower than the protection of those convicts whose right to appeal against such action is established by law. That fact appears to be neither fair nor consistent with the provisions of Article 22 of the Constitution guaranteeing everyone’s equality before the law and everyone’s right to equal protection of their rights and legitimate interests without any discrimination.

With a view to respect everyone’s constitutional right to protection by a court, to ensure the rule of law and legal certainty in current legal regulation the Constitutional Court recognised the need to amend the Criminal Executive Code and the Civil Procedure Codes of the Republic of Belarus by stipulating the right to appeal in civil proceedings against disciplinary action provided for the convicts placed under restraint, subject to correctional labour and other punishments.

The Council of Ministers of the Republic of Belarus is suggested to draft a law on making alterations and addenda to the Criminal Executive Code of the Republic of Belarus and the Civil Procedure Code of the Republic of Belarus and to submit it to the House of Representatives of the National Assembly of the Republic of Belarus under the established procedure.

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