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On 11 July 2017 the Constitutional Court of the Republic of Belarus took the Decision “On Guarantee to Secure the Right to Protection of Certain Categories of Individuals in Administrative Proceedings” (reporting judge – Leonid Ryabtsev)

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 Constitutional Proceedings” on the basis of the individual application of Mr A.R. Levin on elimination of a legal gap in legislation. The applicant pointed to the absence of legal provisions on obligatory legal assistance in administrative proceedings if the individual proceeded against is unable to defend himself in person by force of physical or mental disabilities i.e. major vision, hearing, speech defects (the blind, the deaf, the dumb, persons with severe speech disorders, etc.).

In consideration of the case the Constitutional Court proceeded from the constitutional provisions stipulating that 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); safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State; 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 21.1, 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); 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 have the right to legal assistance to exercise and protect his rights and freedoms, including the right to make use, at any time, of assistance of lawyers and his other representatives in court, other state bodies, bodies of local government, enterprises, institutions, organisations and public associations, and also in relations with officials and citizens (Article 62.1).

The Procedural and Executive Code of the Republic of Belarus on Administrative Offences provides that the court or the body conducting administrative proceedings shall ensure the protection of the rights, freedoms and legitimate interests of the parties to administrative proceedings (Article 2.3.1). The Code also provides the right of an individual to have a defender from the beginning of administrative proceedings and in the case of administrative detention – from the moment the individual was declared in administrative detention (Article 4.1.1, Article 4.5). But it does not envisage a guarantee to secure the individual right to protection that is to obligatory legal assistance in administrative proceedings if the individual proceeded against is unable to defend himself in person by force of physical or mental disabilities.

Having studied the case materials the Constitutional Court concluded that the legal regulation in effect does not ensure the full enjoyment of everyone’s right to legal assistance to exercise and protect his rights and freedoms, stipulated in Article 62 of the Constitution, as it does not envisage the guarantee of the individual right to protection that is to obligatory legal assistance in administrative proceedings if the individual proceeded against is unable to defend himself in person by force of physical or mental disabilities.

In order to comply with the constitutional principles of the rule of law, everyone’s equality before the law, in view of the right to equal protection of the rights and legitimate interests without any discrimination, aiming to secure everyone’s constitutional right to legal assistance to exercise and protect his rights and freedoms, the Constitutional Court recognised the need to eliminate a gap in legal regulation with regard to the exercise of the individual right to protection and to stipulate obligatory participation of the defender in the administrative proceedings if the individual proceeded against is unable to defend himself in person by force of physical or mental disabilities in the Procedural and Executive Code of the Republic of Belarus on Administrative Offences.

The Council of Ministers of the Republic of Belarus is suggested to prepare a relevant draft law on alterations and (or) additions to be introduced to the Procedural and Executive Code of the Republic of Belarus on Administrative Offences and to submit the draft law to the House of Representatives of the National Assembly of the Republic of Belarus under the established procedure.