DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
the 27 of November, 2015 No D-1004/2015
On Legal Regulation of Initiation of Private Criminal Prosecutions
The Constitutional Court of the Republic of Belarus comprising the Presiding OfficerChairman P.P. Miklashevich, Deputy Chairwoman O.G. Sergeeva, judges T.V. Voronovich, S.Y. Danilyuk, N.A. Karpovich, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, A.G. Tikovenko, S.P. Chigrinov
in open court session considered the case “On Legal Regulation of Initiation of Private Criminal Prosecutions”.
The court session was attended by:
L.F. Moroz, Chairwoman of the Standing Committee for Legislation and State Administration of the Council of the Republic ‒ the authorised representative of the Council of the Republic of the National Assembly of the Republic of Belarus in the Constitutional Court;
L.S. Mikhalkova, 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 ‒ R.G. Aniskevich, DeputyChairman of the Supreme Court of the Republic of Belarus;
of the Investigative Committee of the Republic of Belarus – V.A. Gayduchenok, Deputy Chairman of the Investigative Committee of the Republic of Belarus;
of the Ministry of Justice of the Republic of Belarus – I.G. Tushynskiy, Deputy Minister of Justice of the Republic of Belarus;
of the General Prosecutor's Office of the Republic of Belarus – I.G. Sevruk, Head of the Department of Supervision over Application of Legislation by the Investigative Committee of the Republic of Belarus of the General Prosecutor's Office of the Republic of Belarus;
of the Belarusian Republican Attorneys’ Bar Association – T.V. Matusevich, Deputy Chairman of the Belarusian Republican Attorneys’ Bar Association.
The proceedings were initiated by the Constitutional Court on 28 October 2015 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, Article 158.1 and Article 158.3 of the Law of the Republic of Belarus “On the Constitutional Proceedings”.
Having heard the reporting judge T.V. Voronovich, theauthorised representatives of the Council of the Republic of the National Assembly of the Republic of Belarus, the House of Representatives of the National Assembly of the Republic of Belarus, the representatives of the Supreme Court of the Republic of Belarus, the Investigative Committee of the Republic of Belarus, the Ministry of Justice of the Republic of Belarus, the General Prosecutor's Office of the Republic of Belarus, the Belarusian Republican Attorneys’ Bar Association, having analysed the provisions of the Constitution, the Criminal Code of the Republic of Belarus (hereinafter – the CC), the Criminal Procedure Code of the Republic of Belarus (hereinafter – the CPC) and other legislative acts of the Republic of Belarus, having examined the submitted case materials the Constitutional Court of the Republic of Belarus found the following:
1. According to 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 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); State bodies, officials and other persons who have been entrusted to exercise state functions shall, within their competence, take necessary measures to implement and protect personal rights and freedoms Article 59.2).
According to Article 60 of the Constitutioneveryone shall be guaranteed protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law; in order to protect their rights, freedoms, honour and dignity in accordance with law, citizens shall be entitled to claim, through courts, both property damage and financial compensation for moral injury.
Article 33.1 of the CC establishes a list of acts that contain signs of crimes resulting in criminal liability only if there is a demand made by a victim of crime or his legal representative or by a representative of a legal entity according to the procedure established by the criminal procedure law for taking criminal proceedings against the guilty person.
This provision of the CC conforms to Article 26.2 of the CPC stipulating that crimes mentioned in Articles 153, 177, 178.1, 179.1, 188.1, 189, 202.1, 203.1, 216.1, 217, 316.1 and 317.1 shall result in initiation of private prosecutions that shall be initiated by the victim of a crime or his legal representative or by a representative of a legal entity.
In accordance with Article 26.5 of the CPC the prosecutor may initiate a criminal case on the crimes mentioned in Article 26.2 in the absence of the application submitted by the victim of a crime, if these crimes affect the essential interests of the State and society or they were committed against an individual who depends on the accused in the execution of his duties or in another way or who is not able to defend his rights and legitimate interests for other reasons.
Under Article 28.1 of the CPC the victim or (in case of his inability due to age or health condition to express his will in criminal proceedings or in case of his death) any of his adult close relatives or family members, as well as his legal representative shall be entitled to participate in the criminal proceedings against the accused according to the procedure established by this Code and to bring and hold charge against the person who has committed a crime in private prosecution proceedings.
Article 174.1 of the CPC establishes that in the issue of the submitted application, information about the crime or direct detection of signs of the crime the body of inquiry, the head of the investigation body, investigator or prosecutor shall take one of the following decisions: to initiate criminal proceedings; to refuse to initiate criminal proceedings; to transmit this application or information in accordance with investigative jurisdiction; to terminate the examination and to explain to the applicant his right to bring a criminal case on private prosecution before the court in accordance with Article 426 of this Code.
According to Article 425 of the CPC private criminal prosecution proceedings on the crimes mentioned in Articles 26.2 and 26.3 of this Code shall be specified by the general rules of the CPC taking into account the exceptions established by Chapter 44 of the CPC (“Private Criminal Prosecution Proceedings”).
Thus, a criminal case of private prosecution shall be initiated by an individual affected by the crime, his legal representative or a representative of a legal entity by submitting an application on the offence committed against him and mentioned in Articles 26.2 and 26.3 of the CPC to the district (city) court; this application shall contain, among others, information about the person who has committed the offence (Articles 426.1 and 426.2 of the CPC). If the court recognises that the application does not meet the requirements established by Article 426.2 of the CPC, the court shall send the application back to the applicant in order to adjust it in accordance with requirements established by Chapter 44 of the CPC and shall set a term of ten days; resubmission of the application on the same grounds after expiration of the mentioned period shall be not allowed (Article 427.1 of the CPC).
Para 7.2 of the Resolution of the Plenum of the Supreme Court of the Republic of Belarus of 21 December 2006 No. 10 “On Application of Legislation Ensuring the Right of Individuals to Judicial Protection and Measures to Improve its Efficiency in the Courts of General Jurisdiction” gives an explanation that the application on initiation of a criminal case of private prosecution shall be sent back to the applicant only if it does not meet the requirements established by Article 426.2 of the CPC and existing shortcomings impede its submission.
According to the explanations given in paragraphs 3.1 and 3.2 of the Resolution of the Plenum of the Supreme Court of the Republic of Belarus of 31 March 2010 No. 1 “On Application of the Rules of the Criminal Procedure Code Regulating Private Prosecution Proceedings by the Courts” the right to initiate criminal proceedings on the crime specified in Articles 26.2 and 26.3 of the CPC and holding charge before the court as a private prosecutor shall be granted to the victim of the crime; in case of his inability due to age or health condition to express his will in criminal proceedings these rights may be exercised by any of his adult close relatives or family members, as well as his legal representative (Article 28.1 of the CPC); in other cases charges shall be brought and held by persons authorised by the victim in accordance with the procedure established by the legislation.
In accordance with para5 of this Resolution of the Plenum of the Supreme Court the application submitted to the court, by virtue thereof a criminal case of private prosecution shall be initiated, is a procedural document formulating charge and setting the scope of the judicial proceedings; therefore, the courts shall verify whether the application contains information on when, where and by whom a wrongful act was committed, how it manifested itself, whether the description of the criminal act complies with disposition of the criminal law, whether there is any reference to the criminal law (paragraph, part, Article) providing for criminal liability; the absence of such information in the application as well as incomplete or unspecific presentation of information encroaches on the right of the accused to know what he is charged with (Article 43.2.1 of the CPC) and represents the ground for sending the application back to the applicant in accordance with Article 427.1 of the CPC.
It follows from the analysis of the legislation regulating private criminal prosecution proceedings that the criminal cases of this category shall be initiated by the victim of the crime by submitting an application on the offence committed against him to the district (city) court; they can also be initiated by the prosecutor in the absence of such an application of the victim, if the crimes specified in Article 26.2 of the CPC affect the essential interests of the State and society or they were committed against an individual who depends on the accused in the execution of his duties or in another way or who is not able to defend his rights and legitimate interests for other reasons.
The criminal procedure law does not contain provisions obliging the body of inquiry, the head of the investigation body, investigator or prosecutor to initiate private criminal prosecutions in the absence of information about the person who has committed the crime mentioned in Article 26.2 of the CPC, as well as provisions providing for initiation of criminal private prosecutions in the case of death of the victim of the crime that points out a legal gap in the legislation. This fact does not allow to ensure in full protection of the human rights and freedoms guaranteed by the Constitution against criminal encroachment.
2. In accordance with Article 39 of the Law “On the Constitutional Proceedings” the Constitutional Court sent requests to the Supreme Court, the General Prosecutor's Office, the Investigative Committee, the Ministry of Justice, the Belarusian Republican Attorneys’ Bar Association as well as to the Belarusian State University. In their written replies these state bodies and other organisations gave their views on the case.
The Supreme Court considers that in case of the death of the victim of the crime or in the absence of information about the person who committed the crime, private prosecutions shall be initiated by the prosecutor on the basis of Article 26.5 of the CPC, since these circumstances point out reasons that do not allow the victim of the crime to defend his/her rights on his/her own; in this regard, the CPC does not contain a gap of legal regulation concerning these issues.
According to the General Prosecutor's Office there is a gap in legal regulation of private criminal prosecution proceedings when there is no information about the person who committed the crime; in order to eliminate this gap it is necessary to make alterations to the CPC providing for the obligation of the court in this specific case to send the application of the victim of a crime to the body of inquiry in order to identify the person who committed the crime. In case of the death of the victim any of his adult close relatives or family members, as well as his legal representative shall be entitled to bring and hold charge against the person who committed a crime in private prosecution proceedings in accordance with Article 28.1 of the CPC; this fact may also be rated among grounds for initiation of private prosecutions by the prosecutor specified in Article 26.5 of the CPC.
The Investigative Committee considers that it is appropriate to make alterations to Article 26.5 of the CPC in order to clarify the competences of the prosecutor by granting him the right to initiate private criminal prosecutions in case the crime was committed by the person when there is a lack of information on his identity. In case of the death of the victim of the crime the issue of ensuring due protection of the rights of such a person in the criminal proceedings as well as the rights of other people (close relatives, legal representatives) is not regulated by the criminal procedure law.
The Ministry of Justice notes that the absence of information about the person who has committed the crime in the application on initiation of private criminal prosecutions limits to some extent the right of the victim to judicial protection of his violated rights. According to the meaning of Article 28.1 of the CPC in case of the death of the victim of the crime any of his adult close relatives or family members, as well as the legal representative shall be entitled to submit the application on initiation of private criminal prosecutions as well as to hold charge against the person who has committed the crime before the court.
The Belarusian Republican Attorneys’ Bar Association points out a gap in legal regulation of private criminal prosecution proceedings both in case when there is no information about the person who committed the crime mentioned in Article 26.2 of the CPC as well as in case of the death of the victim of the crime. In this regard the criminal procedure law does not provide for protection of the constitutional rights of individuals including the right to judicial protection, that is unacceptable.
The Faculty of Law of the Belarusian State University notes that the absence of information about the person who has committed a crime can be referred to the situation when the victim of the crime is not able to defend his/her rights and legitimate interests and therefore the prosecutor shall be entitled to initiate criminal proceedings under Article 26.5 of the CPC. The issue of admissibility of initiation of private criminal prosecutions without the will of the deceased victim of the crime is debatable because of the close connection between the crime and the victim.
3. The Constitution stipulates that the Republic of Belarus is a social state based on the rule of law, the Republic of Belarus shall safeguard lawfulness and law and order (Articles 1.1 and 1.3); the citizen shall assume responsibility before the State to discharge unwaveringly the duties imposed upon him by the Constitution (Article 2.2); restriction of personal rights and freedoms shall be permitted only in the instances specified by law, in the interests of national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons (Article 23.1); the State shall safeguard personal liberty, inviolability and dignity (Article 25.1); 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).
The Constitutional Court considers that the state, on the basis on these constitutional provisions, in accordance with Article 97.1.2, Article 98.1.1 of the Constitution is entitled to establish criminal nature of socially dangerous acts, their punishability, as well as to differentiate the procedure for institution of criminal proceedings against the guilty person at the legislative level.
Thus, in accordance with Article 26.1 of the CPC, depending on the nature and severity of the crime criminal prosecution and charges before the court shall be carried out by means of public, public and private, private prosecution.
In accordance with the principle of the publicity of criminal proceedings based on a number of the constitutional provisions (Articles 2, 7, 21, 59, 137), the State shall guarantee to everyone protection against criminal offences; the state bodies, officials entitled to prosecute shall, within their competence, take the necessary measures to detect crimes and identify the perpetrators of these acts, to initiate criminal proceedings, to hold the perpetrators criminally liable and to create conditions for a legitimate, reasonable and fair judgment made by the court (Article 15 of the CPC).
In the Decision of 26 December 2014 «On the Сonformity of the Law of the Republic of Belarus «On Making Addenda and Alterations to the Criminal Code, Code of Criminal Procedure, Criminal Executive Code of the Republic of Belarus, Code of the Republic of Belarus on Administrative Offences and Procedural Executive Code of the Republic of Belarus on Administrative Offences» to the Constitution of the Republic of Belarus» the Constitutional Court noted thattheconstitutionalobligationofthestatetoprotectthehumanrightsandfreedoms, andthereforeofthevictimof the crimedoesnotmeanthatthevictiminpublicprosecutionsshallbegrantedtherighttopredeterminethenecessityofcriminalprosecutionofthespecifiedperson. Thisrightinthementionedcategoryofcriminalcasescanbelongonlytothestatethroughitsbodiesandofficialsentitledtoprosecute.
At the same time the criminal procedure law admits inclusion of dispositive elements in the criminal proceedings: initiation of private criminal prosecutions as well as termination of the proceedings due to reconciliation with the accused depends on the will of the people affected by the crime. At the same time the legislator proceeds from the fact that such crimes are closely related to the personality of the victim and do not represent great danger for the society, their detection, as a rule, is not complicated, so the victim can carry out criminal prosecution of the perpetrator of the offence committed against him by himself.
This legislative regulation is due to the need to take into account public and private interests affected by the crimes mentioned in Article 26.2 of the CPC, as well as to ensure fully the human rights and freedoms, including those provided by Articles 25.1, 28, 29, Article 44.3 of the Constitution.
In its Judgment of 12 June 2014 “On the Conformity of Articles 29.1.7 and 303.1.1 of the Code of Criminal Procedure of the Republic of Belarus to the Constitution of the Republic of Belarus” the Constitutional Court stated the legal position that the constitutional right of everyone to protection against encroachments upon his dignity and honour covers not only the life period of an individual; this right obliges the State to set up legal guarantees to ensure judicial protection of the individual’s dignity and honour after his death.
Proceeding from the foregoing the Constitutional Court notes that the power granted to individuals to initiate private criminal prosecutions and to execute criminal proceedings shall be considered as an additional guarantee of protection of the rights and legitimate interests of victims which does not exempt the State from carrying out the constitutional functions and obligations to ensure the rule of law and legal order, human rights and freedoms as the supreme goal of the State, realisation of the right to judicial protection of the human rights and freedoms guaranteed to everyone (Articles 1.3, 21.1, 60.1 of the Constitution). Thus, according to the CPC the prosecuting body, within its competence, shall institute criminal proceedings in every case of detection of a crime, take all legal measures to establish a socially dangerous act under the criminal law, prove guilty of the perpetrators and impose a punishment, as well as take measures for rehabilitation of the innocent and ensure access to justice for the victim, take measures to ensure the compensation of damage (Articles 27.1 and 27.2).
However the criminal procedure law does not contain provisions providing for initiation of private criminal prosecutions in the absence of information about the person who has committed the crime mentioned in Article 26.2 of the CPC as well as in the case of death of the victim of the crime that, according to the Constitutional Court, points out a gap in constitutional and legal regulation of public relations concerning criminal proceedings and consideration of cases of private prosecution by the courts.
4. In accordance with the Constitution the Republic of Belarus shall be bound by the principle of supremacy of law (Article 7.1); 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); safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State (Article 21.1); 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).
According to para 6.b of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (adopted by the UN General Assembly Resolution 40/34 of 29 November 1985) the responsiveness of judicial and administrative processes to the needs of victims should be facilitated by allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system.
The Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 enshrines that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law (Article 6.1); everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity (Article 13).
Article 7.1 of the CPC complies with the given provisions of the Constitution and international legal instruments. According to this Article the tasks of the criminal proceedings are: protection of the individual, his rights and freedoms, interests of the society and the state by means of prompt and complete investigation of crimes, incrimination and prosecution of the guilty person; ensuring the correct application of the law, so that everyone who has committed a crime, shall be imposed to a fair punishment and any innocent person shall not be prosecuted or convicted.
In view of the foregoing the Constitutional Court believes that the State shall ensure access to justice for every victim of the crime and in case of his/her death – to guarantee judicial protection of his/her dignity and honour.
Byvirtueoftheconstitutionalprovisionsstipulatingthatthe State and all the bodies and officials thereof shall operate within the confines of the Constitution and acts of legislation adopted in accordance therewith andthe 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 (Articles 7.2 and 59.1), the Constitutional Court recognised the necessity to eliminate a legal gap in constitutional and legal regulation of initiation of private criminal prosecutions by making addenda and alterations to the CPC obliging the prosecuting body to initiate private criminal prosecutions in the absence of information about the person who committed the crime mentioned in Article 26.2 of the CPC, as well as to initiate private criminal prosecutions in case of the death of the victim of the crime on the basis of applications submitted by his/her adult close relatives or family members.
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 the Constitutional Proceedings” the Constitutional Court of the Republic of Belarus
 
RULED:
 
1. In order to ensure the constitutional principles of the rule of law and legality, to exercise the constitutional right of everyone to judicial protection the Constitutional Court recognised the necessity to eliminate a legal gap in constitutional and legal regulation of initiation of private criminal prosecutions by making addenda and alterations to the Criminal Procedure Code of the Republic of Belarus obliging the prosecuting body to initiate private criminal prosecutions in the absence of information about the person who committed the crime mentioned in Article 26.2 of the Criminal Procedure Code, as well as to initiate private criminal prosecutions in case of the death of the victim of the crime on the basis of applications submitted by his/her adult close relatives or family members.
2. To make a proposal to the Council of Ministers of the Republic of Belarus to prepare a draft law on making alterations and addenda to the Criminal 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 according to 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 the legislative acts.
 
Presiding Officer –
Petr P. Miklashevich,
Chairman of the Constitutional Court
of the Republic of Belarus

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