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The Constitutional Court stands for the
protection of the rights and liberties of citizens
The following brief review of Decisions of the Constitutional Court of the
Republic of Belarus and the information about the process of their execution
is presented hereto the reader.
At the same time, the essence of Decisions of the Constitutional Court of
the Republic of Belarus is stated with their subject orientation taken into
account.
The Constitutional Court shall increase constantly its activities in control
over the constitutionality of enforceable enactments. One may follow the
dynamics of the cases examined by the Constitutional Court of the Republic
of Belarus from the moment of its creation: 1994 — 5 cases, 1995 — 17, 1996
— 12, 1997 — 6, 1998 11, 1999 — 17, 2000 — 28, 2001 — 48, 2002 — 40. That is
without consideration of the work of the specialists and judges of the
Constitutional Court with the complaints of citizens which give rise to the
issues of law nature. In 2001 the Constitutional Court has received more
than 1.500 complaints. 1.300 of them was individual, more than 200
collective complaints signed by about 3,500 persons. In 2002 there were
about 1.300 complaints signed by about 4.000 persons. If they shall involve
verification of the constitutionality of enforceable enactments, the
Constitutional Court, by force of the requirements of Article 40, part one
of Article 116 of the Constitution of the Republic of Belarus, shall solve
the issues raised by way of delivery of the relevant decisions. The Court
here shall be based on social significance of the opened issues and exclude
the intervention in political disputes.
Every year in recent years 1.500-2.000 individual complaints of citizens are
incoming the Constitutional Court.
We rely thereupon that the presented review will promote better study of the
development of legal system of the Republic of Belarus, given the necessity
of strengthening of the supremacy of fundamental human rights and freedoms.
In this direction the Constitutional Court co-operates actively with the
bodies of the executive and representative power of the Belarusian State,
and the high level of realization of the Decisions delivered shall indicate
this, and this is still the problem of many new democracies, first of all,
CIS Member States.
Professor, Doctor of Law, Grigory A. Vasilevich
Chairman of the Constitutional Court
of the Republic of Belarus
Brief review of Decisions for 1997 - 2003
The definition in Article 2 of the Constitution of the individual, his
rights, freedoms and guarantees for their attainment as a supreme goal and
value of society and the State has entailed the necessity of ensuring of
realization of the given constitutional standard by all state bodies.
The Constitutional Court, while exercising its basic function established in
Article 116 of the Constitution, has carrying out verification of
constitutionality of the normative acts in the light of protection of human
rights and freedoms, ensuring of optimum mutual relation between the State
and the individual.
The significant attention (57 Decisions) has been given by the
Constitutional Court to consideration of the issues of observance of the
individual rights and freedoms of the citizens, in particular, the issues of
the right to freedom and to personal immunity (15); the right to freedom
from enforcement to testify against himself, members of his family, close
relatives (2); the right to move freely and to choose the place of
habitation (2); the right to specify the attitude towards religion (2); the
right to the nationality, usage by the native language (2); the right to
judicial protection (27); the right to legal assistance (7).
In part of ensuring of the right to personal freedom and immunity (Article
25 of the Constitution) were considered both material laws, and the laws of
procedure of its ensuring. Many of proposals of the Constitutional Court
were taken into account by adopting new of the Criminal and Criminal
Procedure Codes: on legislative securing of the rule on keeping of the
accused in custody on the basis of the written ruling of the court of law or
of another body specified by the law, during acquaintance of the accused and
his defense counsel with materials of the criminal case on expiration of the
deadline of custody (Judgment of 1.12.1998, № J-73/98); on exclusion of
imposition a duty on the court of law to formulate accusation on a criminal
case lodged on the grounds of materials, received by way of the protocol
form of pre-trial preparation (Judgment of 11.12.1998, № J-74/98).
A number of decisions (6) were connected with ensuring of the constitutional
principle of equality of all before the law while applying the acts of
amnesty as regards the convicted persons.
Thus, due to Decision “On application of the rule of retroactive effect of a
more softer law to the persons found till 1 January 2001 to be especially
dangerous recidivists” (Decision of 5.10.2001, № D-128/2001) that the
verdicts endured and which have entered into legal force up to 1.01.2001,
according to which the convicted persons were found to be especially
dangerous recidivists, should be reviewed by the courts of law not only in
cases, when the actions of a guilty person were qualified as committed by
especially dangerous recidivist, but also in all the other cases, if the
crimes, committed by them previously, under the effective Criminal Code do
not form especially dangerous repeated commission of an offence, with
respect to 434 convicted persons there were adopted the rulings on exception
from a verdict of Article 24 of the Criminal Code of 1960 (especially
dangerous repeated commission of an offence), and subsequently to them the
acts of amnesty were applied.
In the fulfillment of Decision “On conditional release from punishment of
the minors with respect to whom the amnesty was applied” Article 15 of the
Law of 15.07.2002 "On amnesty of some categories of persons who committed
offences” shall specify, that at its application to the persons with respect
to whom the term of punishment has been reduced by way of pardon or amnesty,
it is necessary to proceed from the term of punishment established according
to the acts of pardon or amnesty". Thus, Decision of the Constitutional
Court has promoted elimination of ambiguity of law applying practice on
calculation of an actual part of punishment endured by applying criminal
conditional release from punishment or commutation of the punishment by a
more softer one after mitigation of punishment to the minor convicted by the
act of amnesty or pardon or ruling of the court of law.
Decision of the Constitutional Court "On the right to amnesty of the
convicted persons with respect to whom the verdicts have not entered into
legal force due to appealing theiragainst in the procedure of cassation
(Decision of 17.11.2000, № D-104/2000) has been realized by the National
Assembly while issuing the Law of 15.07.2002 “On amnesty of some categories
of persons who committed offences”: this Law, unlike the previous acts of
amnesty, shall cover the convicted persons with respect to whom the verdicts
have not entered into legal force by the reason that the appeals of
cassation for review (protests) on their cases were subject to no
consideration during a long time under the circumstances beyond the control
of the convicted persons: the persons committed offences until the day of
entry into force of the given Law shall fall under action of that Law, both
convicted and not convicted by courts of law of the Republic of Belarus, the
persons the verdicts with respect to whom are considered in the procedure of
cassation or supervision, as well as the persons convicted by courts of law
of other states, but who enduring the punishment in territory of the
Republic of Belarus according to the international treaties of The Republic
of Belarus.
The Constitutional Court has considered twice the issues of application of
the criminal liability for the crimes connected with illegal receiving of
rewards by the officials (bribery).
In its Judgment of 12.11.2001”On the conformity to the Constitution of the
provision of point 3 of part four Article 4 of the Criminal Code of the
Republic of Belarus and the practice based thereon of application of the
notion of the official under the feature of committing legally significant
actions” there have been specified the discrepancy of judicial practice on
calling to criminal liability of the teachers of higher and specialized
secondary educational institutions due to receiving by them of the fee for
positive estimations of knowledge of the students or pupils at course exams
and tests, when in one instances they are called to the criminal liability
for receiving of a bribe, and in other similar situations those persons are
not considered to be the subjects of the crime in question. The attention of
the Supreme Court was paid to the necessity of ensuring within the limits of
the whole State of the uniform approach to application of the given
standard, meaning, that she allows to call to the criminal liability of the
teachers of higher and specialized secondary educational institutions for
receiving by them of illegal fees from the students or pupils.
Having analyzed the provisions of points 20 and 21 of Ruling of Plenum of
the Supreme Court from 10.04.1992 № 1 “On judicial practice under the
bribery cases” and having recognized them to be in line with the norms of
the Criminal Code (Judgment of 28.11.2001, № J-132/2001), the Constitutional
Court at the same time has noted, that the conversion into the state revenue
of money and other values handed as a bribe by the person, with respect to
whom a bribe-racketing took place, should not cover the persons who are
found themselves in conditions of absolute necessity and who feel forced to
give a bribe. It is also emphasized the illegality of practice, according to
which money and other values belonging to the persons are converted into the
state revenue, who before their transfer to the bribe-taker give voluntarily
notice for the law-enforcement agencies on racket from them of a bribe and
then participate in conducting operative actions discharged under control of
those bodies with the purposes of making incrimination of the bribe-takers.
The specified persons do not commit offences, and owing to that the
belonging to them and used for the specified purposes money and other values
are subject to return to their holders.
The National Assembly in the Law “On making alterations and addenda into
some legislative acts of the Republic of Belarus” of 4.01.2003 there have
been taken into account the proposal of the Constitutional Court to remove
inconsistency of the provisions of Article 98 of the criminal Code of
Procedure and Article 61 of the Criminal Code concerning money and other
values received by a felonious way, meaning also no exclusion of the
possibility of introduction in the legislation of the norm allowing the
court of law in certain instances to solve the problem on return of a
subject of a bribe to the briber-giver, who is subject to release from the
criminal liability. The lawmaker has envisaged such a right of the court of
law.
By the same Law of 4.01.2003 the lawmaker has also taken into account the
proposal of the Constitutional Court worded in its Decision of 12.11.2002 №
D-151/2002 “On definition of the notion “ income” for the purposes of
qualification of illegal entrepreneur activity while calling to the criminal
liability”. In the fulfillment of the Decision the notion “income” for the
purposes of qualification of crimes against the procedure of economic
activity is defined directly in the Criminal Code, but not in the ruling of
Plenum of the Supreme Court, as it was earlier, and that should promote
formation of the judicial practice which is uniform and founded on the law.
In its Decision of 24.03.2003 “On lawfulness of the recommendation of
Interdepartmental working group on application of the norms of the Criminal
Code, the Criminal Code of Procedure and the criminal Code of Executions,
enforced since 1 January 2001, on substitution of non-served part of
punishment as deprivation of liberty by correctional labor”, submitted the
Security Council, there is a position of the Constitutional Court that the
issues of commutation of imprisonment by correctional labor, when the penal
term, which has stayed for enduring the punishment, exceeds the deadline of
correctional labor, should be arranged in the Criminal Code, which is the
unique criminal law acting in territory of the Republic of Belarus.
Due to use of the computer account of the population on the basis of
identification numbers the Constitutional Court has studied an issue on
observance of the right to protection from illegal intervention in personal
privacy. In its Decision on the issue of an identification number in the
passport of the citizen of the Republic of Belarus, submitted to the Council
of Ministers, it has been proposed to develop the supplementary measures
directed on perfecting of the current legislation in the field of the
computer account of the population on the basis of identification guarantees
from illegal intervention in personal privacy, illegal collecting and
storage of the information about a citizen and usage of the information in
question.
The questions of ensuring of the right to freedom from enforcement to
testify against oneself, members of one’s family, close relatives (Article
27 of the Constitution) were considered by the Constitutional Court by
delivering its Judgments of 23.07.1998 “On the conformity to the
Constitution of the Republic of Belarus of point 3 of a part of second of
Article 66 of the Criminal Code of Procedure of the Republic of Belarus” and
of 25.03.1999 “On interpretation of Judgment of the Constitutional Court of
the Republic of Belarus of 19 December 1994 “On the conformity to the
Constitution of the note to Article 177 of the Criminal Code of the Republic
of Belarus”.
Having come to the conclusion that the close relatives and the members of
family of the person, suspected or charged in committing a crime, or the
accused shall have the right not to give the testimonies and arguments
against themselves and this person, and the appropriate bodies shall have no
right to require them to be witnesses against themselves, members of the
family, close relatives, and having recognized the norm under consideration
to be at variance with the Constitution and the International Covenant on
Civil and Political rights and to be null and void, the Court has proposed
the National Assembly to make the necessary alterations and addenda into the
Criminal Code of Procedure. At the same time, Constitutional Court has
explained, that it is possible such a legislative solution, according to
which there will be no exclusion of the responsibility for misprision of
felony of a close relative or a member of family of the person preparing to
commit an especially grave crime, dangerous to life of the people, when
he/she had a possibility to inform about the fact of a preparing crime with
the purpose of its prevention and thus would not be direct testimony against
this person and in certain instances there will be exclusion of the
responsibility of a close relative or a member of family of the person who
has already committed a crime, for the beforehand not promised concealment
of this person or places of his/her location.
The provisions of the Judgments of the Constitutional Court have been
realized in the Law of 25.10.1999 “On making alterations and addenda into
the Criminal Code of Procedure of the Republic of Belarus”.
The right to move freely and to choose their place of habitation
(Article 30 of the Constitution).
Judgment of 27.09.2002 “On the conformity to the Constitution of the
Republic of Belarus of part two of Article 6 of the Law “On the procedure of
departure from the Republic of Belarus and entrance to the Republic of
Belarus of the citizens of the Republic of Belarus”, point 13 of the Rules
of registration of the documents for departure abroad for the citizens of
the Republic of Belarus, sub-item 25.1 of point 25 of the Instruction on the
procedure of registration of the passport of the citizen of the Republic of
Belarus for departure abroad in a part of an establishment of the five
years' duration obligatory mark in the passport of the citizen of the
Republic of Belarus, who is temporarily leaving abroad” contains the
position of the Constitutional Court about the necessity to recognize that
Article 30 of the Constitution providing the right of the citizens of
republic to move freely, to leave the Republic of Belarus and to come back
freely, testifies about the inalienability of the given basic right. The
establishment of limitations for temporary departure of certain citizens
abroad is possible in strict conformity with Article 23 of the Constitution
and should meet the purposes and principles of a democratic state ruled by
law, should be proportional to the protected by the Constitution values.
The Constitutional Court has proposed the appropriate state bodies, within
the terms established by the Constitutional Court, to take concrete
measures, listed in the Judgment, on ensuring of the given right.
At the present moment there is a preparation for execution: on boundary
transitions of the Republic of Belarus there is under preparation is the
creation of the modern centralized computer system for making the account of
the persons, with respect to whom according to the Constitution the
limitation of their right to temporary departure abroad is supposed.
Its position as regards the right to determine one’s attitude towards
religion (freedom of conscience and beliefs, Article 31 of the Constitution)
the Constitutional Court has expressed in the proposal to the Government
concerning execution of the legislation on freedom of religion and religious
organizations, in particular, the issues of organization of children's
establishments and youth camps, in which are preached religious dogmas. The
proposal has been taken into account while adopting Resolution of 19.06.1997
№ 746 “On making alterations and addenda into Resolution of the Council of
Ministers of the Republic of Belarus of 9 April 9 1997 № 309”.
The issues of guarantees of the right to nationality, usage by the native
language (Article 50 of the Constitution) were considered by the
Constitutional Court three times and all the proposals brought in by Court
have been taken into account in the normative legal acts of state bodies.
So, the proposal on making addenda to the Provision on the passport of the
citizen of the Republic of Belarus, concerning indication of the nationality
of the citizen of the Republic of Belarus, submitted to the Government, has
found its realization in Resolution of 24.04.1997 № 394 “On making addenda
to the Provision on the passport of the citizen of the Republic of Belarus”,
the Ministry of Justice has approved the Instruction on the procedure of
specification of the nationality of the citizens of the Republic of Belarus
of 09.06.1997.
The Prime-Minister in his instruction of 5.01.2000 № 12/400-51 has proposed
the heads of the ministries and other republican state bodies, associations
subordinated to the Government, oblast executive committees and Minsk city
executive committee due to the reference of the Constitutional Court (ref. №
05-05/1181 of 30.12.1999 to respect strictly the requirements of the
legislation about the use in official correspondence of the forms on two
state languages.
The proposal on introduction in the Administrative Code of the Republic of
Belarus of the norm providing the responsibility for the infringement of the
legislation on languages, submitted to the House of Representatives of the
National Assembly, has been taken into account in the Law of 24.11.1999 “On
making addenda to the Administrative Code of the Republic of Belarus”, which
such responsibility is established (Article 1722).
For ensuring realization by the citizens of the right to judicial protection
of the rights and lawful interests (Article 60 of the Constitution) the
Constitutional Court within its powers has repeatedly made the proposals on
improvement of the current legislations worded in its relevant Decisions:
on making alterations and addenda into the Criminal Code of Procedure on the
rights of citizens injured from crimes, on material compensation of moral
harm (submitted to the House of Representatives of the National Assembly).
The Criminal Code of Procedure has been introduced the relevant norms of
16.07.1999;
on the necessity of granting citizens the right to appeal against the ruling
on the cease of a criminal case at the stage of pre-trial investigation not
only to the public procurator, but also to the court of law. The same
question was studied by the Court while examining the case “On the
conformity to the Constitution of the Republic of Belarus and to
international legal acts of part sixth of Article 209 of the Criminal Code
of Procedure of the Republic of Belarus” (Judgment of 13.05.1999). The
specified norm was found to be at variance with the Constitution and with
the International Covenant on Civil and Political rights. The National
Assembly in the Law of 25.10.1999 “On making alterations and addenda into
the Criminal Code of Procedure of the Republic of Belarus” has changed the
wording of point 209. Thus citizens have been secured the possibility of
judicial protection of their rights;
on setting in the criminal legislation of procedure of the right to appeal
against actions and decisions of the body of investigation, investigator or
inspector not only to the public procurator, but also to the court of law,
having established in such cases the procedure of making references by
citizens for judicial protection (Decision of 3.04.2001”On the right of
citizens to make references to the court of law on the issues arising in
connection with accomplishment of the criminal procedure relations”);
on ensuring of the constitutional right of imprisoned convicts to judicial
appeal against the applied to them penalties (due to non-execution by the
courts of common law of the recommendations of the Constitutional Court the
question was considered three times: Decisions of 2.04.2001; of 15.07.2002;
of 24.12.2002). The Law “On making alterations and addenda into some
legislative acts of the Republic of Belarus” of 4.01.2003 in Article 113 of
the Criminal Code of Executions has established the right of the convicted
person to appeal against decision of the official about laying penalty to
the higher official, the public procurator or to the court of law. Position
of the Constitutional Court was taken into account by the lawmaker;
on legislative regulation of admission of the participants of the criminal
proceedings to the materials of the criminal case with the state secrets
(Decision of 24.11.2000). The specified Decision has been realized in
Article 28 of the Law of 4.01.2003 “On making alterations and addenda into
the Law of the Republic of Belarus “On state secrets”: the participants of
the criminal, civil and (or) administrative processes, including the
lawyers, will receive access to materials of the case with the state secrets
in the procedure and to the extent stipulated by the legislation of
procedure;
on making alterations and addenda into the Administrative Code, other laws
providing realization of the right of citizens to appeal to the court of
administrative detainment, personal examination, examination of things,
exemption of things and documents (Judgment “On the conformity to the
Constitution of the Republic of Belarus of Article 246 of the Administrative
Code of the Republic of Belarus” of 19.06.1998). It has been also specified
on direct application of the norms of article 60 of the Constitution. The
given Decision has been executed by adoption of the Law of 28.05.1999 “On
making alterations in the Administrative Code of the Republic of Belarus”;
on making alterations in the Administrative Code, in the Ruling of Plenum of
the Supreme Court, which would secure the right to appeal to the court of
law against the ruling on the administrative case in instance of its appeal
to a higher body (higher official), as well as the right to appeal to the
court of law against laying administrative penalty as the warning fixed on
the place of committing of an offence without making a statement (protocol)
(Judgment of 24.06.1998 “On the conformity to the Constitution of the
Republic of Belarus of Article 267 of the Administrative Code of the
Republic of Belarus, point 2 of Ruling of Plenum of the Supreme Court of the
Republic of Belarus of 20 September 1990 № 7 “On practice of consideration
by the courts of law of the Republic of Belarus of the petitions against
actions of bodies and officials in connection with laying administrative
penalties”). It was executed by adoption of the above named Law of
28.05.1999 and by making alterations in the Ruling of Plenum of the Supreme
Court);
on establishment of the deadlines, during which to the person who has
committed an administrative customs offence there may be applied
confiscation of the things which are direct objects of administrative
customs offences, and subjects with the specially made hiding places used
for concealment of things from customs registration (Decision of 25.04.2001
“On the conformity to the Constitution of Article 37 of the Administrative
Code of the Republic of Belarus and practice of its application”). At
present this Decision is directly executing by the courts of common law.
Moreover, such a term is stipulated in the draft of the Administrative Code
of Procedural Executions (adopted in the first reading): not later than one
year from the date of committing an offence;
on establishment of the terms of consideration of an administrative case
(submitted to the House of Representatives of the National Assembly, taken
into account in the above specified draft);
on ensuring of procedural guarantees of realization of the right of the
parties and persons participating in proceedings, to appeal against judicial
rulings of the Supreme Court delivered on the cases it examined under the
first instance (Judgment of 23.06.1999 “On the conformity to the
Constitution of the Republic of Belarus and to international legal acts of
part two of Article 207, part one of Article 268, part one of Article 269
and part one of Article 291of the Civil Code of Procedure of the Republic of
Belarus”);
on stipulation in the Law “On status of servicemen” of their right to appeal
to the court of law on the issue of appealing against disciplinary
punishment in three-months term from the day, when they have known or had to
know about infringement of their right and consideration of such
applications under the rules of lawsuit procedure (Decision of 23.03.2001
“On the terms of appealing to the court of law by serviceman of disciplinary
punishment”). The Proposal has been taken into account in the new draft of
wording of this Law; Decision of the Constitutional Court is directly
applying in judicial practice and, moreover, its conclusions are reflected
in point 11 of Ruling of Plenum of the Supreme Court of 17.12.2002 № 10 “On
application by the courts of law of the legislation of procedure regulating
the peculiarities of consideration of the petitions against the actions
(inactivity) of state bodies, legal persons, other organizations and
officials infringing upon the rights of citizens”;
on improving of the legislation on State tax with the purpose of realization
of guarantees of the right of the citizens to judicial protection, as well
as equal approach to fixation of the sizes of the rates of State tax from
the applications of property and non-property nature (Decision of 24.06.1999
has been executed by Resolutions of the Council of Ministers of 25.08.1999 №
1330 and of 1.11.1999 № 1706 ”On making alterations in the rates of State
tax”); on reducing the size of the rate of State tax or on granting a
privilege on payment of State tax to the persons appealing judicially
against refusal in registration of the application for recognizing them as
refugees and against refusal in recognizing them as refugees (Decision of
15.01.2002 “On payment of State tax by the persons appealing judicially
against refusal in registration of the application for recognizing them as
refugees and against refusal in recognizing them as refugees“, has been
executed in Resolution of the Council of Ministers of 8.04.2002 № 443 “On
making alterations in Resolution of the Council of Ministers of the Republic
of Belarus of 26.02.1993 № 105” - the size of the rate of State tax for the
given category of persons has been reduced.
A number of Decisions was directed on perfecting of the judiciary system
with the purpose of the maximal ensuring of realization of the right to
judicial protection.
Thus, Decision of 17.04.2001 “On the procedure of formation of a composition
of the people's lay judges” has emphasized, that with the purposes of
observance of the constitutional principles of justice and realization of
Article 60, points 9 and 10 of Article 84, Articles 109 — 115 of the
Constitution issues of formation of a composition of the people's lay
judges, the stipulation of their legal status while administering justice
should be specified in the law. The National Assembly has been proposed to
make the relevant alterations and addenda into the Law “On judicial
organization and status of judges in the Republic of Belarus”. The proposal
has been realized while adopting of the Law of 11.11.2002 “On making
alterations and addenda into the Law of the Republic of Belarus “On judicial
organization and status of judges in the Republic of Belarus”.
A number of proposals had been submitted to the National Assembly (Decision
of 12.07.2001, of 29.11.2001 and of 20.12.2001), which are directed on
regulation of procedural relations concerning differentiation of
jurisdiction of cases in the legislative acts of the Republic of Belarus.
The arising issues of law on the right to legal assistance (Article 62 of
the Constitution), as one of the basic elements of legal status of any
person, were also subject to examination of the Constitutional Court.
Legal position of the Court and the proposals submitted to the competent
bodies and worded in Decisions of 2.07.1999 “On some issues of
representation in the court of law on civil cases”, of 13.12.1999 ”On some
issues of securing for citizens of the constitutional right to receiving
legal assistance in the criminal procedure”, of 4.07.2000 “On some issues
connected with rendering legal assistance for convicted persons”, in
Decision of 5.10.2000 on practice of application of the above indicated
decisions in part of realization of the provisions of Article 62 of the
Constitution, as well as in Decision of 17.03.2000 on the issue of
explanation of the Ministry of Justice “On the right to legal assistance”
have made it possible: 1) to secure not only to the accused, but also to the
suspected, defendant, with respect to whom the preventive measure as taking
into custody was chosen, the right to receiving at any moment legal
assistance of the legal counsel within sigh, but not within the hearing, of
a law enforcement official (there has been issued Resolution of the Ministry
of Internal Affairs of 5.03.2002 № 59 “On measures on ensuring of regime of
keeping of detained persons and those persons who are in custody in
isolators of the temporary keeping);
2) to recognize that the persons who are enduring the punishment in the
places of confinement, shall have the right to receiving legal assistance
not only from the lawyers, but also from other persons, if they were
admitted by the court of law as their defense attorneys. At the same time,
rendering of legal assistance by those persons should be realized under the
same procedure as it is stipulated by the Regulations of correctional labor
institutions regulating organization of meetings (interviews) between
convicted persons and the lawyers. It has been also noted, that the right to
legal assistance shall be guaranteed, first of all, by means of rendering
the qualified legal assistance on a professional basis (by lawyers or by
other persons who have the right to rendering legal assistance), at the same
time, there is no exclusion of the right to be representatives in the court
of law for the lawyers and persons having the licenses for rendering legal
services, and also for any other citizens who made registration of their
representation properly. Citizens shall have the right at any moment to
receive legal assistance, including while realizing by them of their rights
in labor, housing, administrative, tax and other legal relations.
The Constitutional Court, by considering in February 2002 the issue on
participation in the criminal case of the lawyer who is the citizen of the
Russian Federation, has underlined, that the provisions of part two of
Article 44 of the Criminal Code of Procedure of the Republic of Belarus as
regards the requirement on citizenship of the Republic of Belarus for the
lawyers, do not concern the close relatives or legal representatives in the
criminal proceedings.
17 Decisions of the Constitutional Court have been adopted on the issues of
observance of the rights referring to the social and political rights and
freedoms, in particular, of the right to participate in the administration
of the affairs of the State (1), right to vote and to be elected (3);
freedom of associations (4); freedom of the press and information (5);
issues of citizenship (2).
There were Decisions referring to the matters of the right to vote and to be
elected (Article 38 of the Constitution):
on the conformity to the Constitution of Articles 61, 68 of the Elective
Code (Central Committee of the Party of Communists of Belarus(ref.
№
05-08/71-581 of 10.05.2001);
concerning
used in Article 80 of the Constitution of the notion “citizen of the
Republic of Belarus constantly living in the Republic of Belarus” (Decision
of 15.06.2001, in which it has been noted, that Mr Z.S. Poznyak shall
preserve the citizenship of the Republic of Belarus, his departure considers
to be temporary by virtue of political, in his opinion, situation. He did
not make out departure on the constant habitation in other state, he is the
Chairman of Conservative and Christian party — BNF, which has been
registered by the Ministry of Justice, (certificate № 18), and that shall
confirm his participation in political life of the Republic of Belarus. With
the account also of the fact that he has been granted a refuge status in the
foreign state, The Constitutional Court has noted that the Central
Commission on elections and holding republican referendums should registered
the specified initiative group);
concerning
the used in Article 80 of the Constitution notion “citizen of the Republic
of Belarus by birth” (Decision of 19.06.2001, with legal grounds for
definition of the given notion and according to which Mr A.A. Lyashko, born
in 1949 in Komi ASSR of the Russian Federation, whose parents, under the
available information, were not citizens of BSSR at the moment of his birth,
has got citizenship of BSSR (citizenship of the Republic of Belarus) not by
birth, but only due to his moving in 1958 in the territory of BSSR).
A number
of Decisions of the Constitutional Court were connected with the right to
association (Article 36 of the Constitution).
According
to Judgment of 8.10.1998 “On the conformity to the Constitution of the
Republic of Belarus of the Law “On basic principles of people government in
the Republic of Belarus” unconstitutional and invalid were found its certain
provisions to the extent they give the possibility for the persons the
listed in part 2 of Article 36 of the Constitution to be the members of
political parties and of other public associations pursuing political goals.
The specified Law on the basis of the relevant Resolution of the Parliament
has lost its legal force since 28.05.1999.
Decisions
of the Constitutional Court of 21.02.2001; of 10.07.2001; of 1.02.2002 and
of 20.03.2002 concerned the issues of creation and activities of labor trade
unions.
Decision
“On the procedure of payment of member trade-union payments” (of 21.02.2001)
has found that the deduction of member trade-union payments from wages of
the worker by cashless transfer to the accounts of trade-union bodies shall
be in line with the Constitution, with international legal acts, with the
laws of the Republic of Belarus. The attention of trade unions and employers
has been paid to illegitimacy of deductions from wages of trade-union
payments of the workers — of the members of a trade union with the absence
of their written application. At the same time, it has been emphasized, that
the workers who filed no such application and who put no question on
illegality of the practice of making those deductions from their wages,
thereby have actually given their consent to those deductions under the
condition that they had the information thereabout (specification in the pay
sheets of the worker etc.). It has been underlined the impermissibility of
such a practice later on.
Having
studied the issue on constitutionality of point 2 of Resolution of the
Council of Ministers of 14.12.2001 № 1804 “On measures on protection of the
rights of members of labor trade unions” (Decision of 20.03.2002), the Court
has noted, that the normative requirement, stipulated at the given stage, on
payment of trade-union fees personally by workers without deduction of
payments from their wages has been adopted by the Government within the
limits of its competence and is not at variance with the enshrined in the
Constitution and in the laws basic principles of organization and activities
of trade unions, as well as does not exclude the right of the workers, for
whom the wages are transferred on the accounts in financial institutions, to
give instructions for the banks on transfer of trade-union payments in
cashless procedure on the accounts of trade-union organizations, as it is
stipulated by the Banking Code. By virtue of the fact that the established
procedure of personal payment of trade-union fees, passing accounting
departments of organizations, shall not be optimum, the Council of
Ministers, with the purposes of development of social partnership,
harmonious labor relations, has been proposed to consider the problem on
perfecting the legislation concerning mechanism of deduction and transfer of
trade-union fees, including while concluding new General agreement between
the Government, republican associations of the employers and trade unions.
At the same time, the Constitutional Court has paid attention to the fact
that the alteration made therein by the Council of Ministers, does not
promote development of harmonious labor relations and, as ILO Committee on
freedom of associations of Administrative Council recommends, such a
situation basically should be avoided.
In its
Decision of 27.02.2001 “On some issues concerning legal status of gardening
partnerships” existence of gardening partnerships as independent
organizational legal form of noncommercial organizations has been found to
be in line with the norms of the Civil Code. Alongside with that, the
Constitutional Court has noted that there is no exclusion of the right of
gardening partnerships to be transformed to gardening co-operatives. These
conclusions of the Court have made it possible in law applying practice
while making registration of alterations and addenda into the rules and
regulations of gardening partnerships for the purposes of bringing them into
line with new civil and land legislation (without transformation into
gardening co-operatives) not to make for those organizations the payment for
the state registration.
In view of
Decision of the Constitutional Court the Council of Ministers of 18.09.2002
has adopted Resolution № 1282 “On deductions from wages of workers of the
pecuniary sums for making cashless payments”, according to which deduction
from the salary of the workers of pecuniary sums for cashless payments shall
be carried out under their written application for the purposes of solution
of household, social issues, including sums paid under the credit agreement,
municipal payments, trade-union fees.
On the
issues of ensuring the right to receiving, storage, dissemination of the
complete, reliable and timely information (Article 34 of the Constitution)
the Constitutional Court has made a number of proposals for the Government:
on paying attention of heads of the ministries and departments on the
necessity of executing Resolution of the Government of 13 May 1993 № 316 ”On
state registration of the normative acts of the ministries, state committees
and departments”; on improving the Provision on the procedure of state
registration of the normative acts of republican state bodies and the
National Bank (Decision of 24.04.1998). The proposals made were taken into
account in Resolution of the Council of Ministers of 10.07.1998 № 1088 “On
making alteration in Resolution of the Council of Ministers of the Republic
of Belarus from February 22, 1994. № 92” and of 31.12.1998 № 2034 “On legal
expertise of legal acts of the National Bank, ministries and other
republican state bodies, regional, Minsk city councils of the deputies,
oblast executive committees and Minsk city executive committee”.
Decision
of 12.02.1999 “On practice of publication in 1998 of Resolutions of
Government of the Republic of Belarus concerning the rights, freedoms and
duties of citizens” has noted, that only in 1998 the Council of Ministers
adopted a number of normative acts (are listed), concerning the rights and
duties of citizens, which have not been published. Collection of decrees,
edicts of the President and resolutions of the Government contains the
reference, that the appendices, specified in the resolutions (Provision,
Rules etc.) are not been given and that they are available in oblast
executive committees and Minsk city executive committee, as well as in the
ministries and other republican state bodies. That reference is not the form
of official publication, as it is required by the law. The proposal to take
urgent measures on publication of the normative acts concerning the rights,
freedoms and duties of citizens has been executed by the Government.
By
considering the issue “On violation of legislation while adopting normative
acts concerning putting off the terms of hunting”, the Court has noted, that
in case of necessity of putting off the terms of hunting as a result of an
extreme situation called threat of mass fires, the republican state bodies
should take operatively the measures, stipulated by the legislation, and
inform duly the holders of hunting areas and citizens with the use of radio,
TV and other means of mass media, i.e. by publishing and covering in them
the adopted normative acts about changes of terms of hunting.
Special
attention the Constitutional Court has given economic and social rights and
freedoms (92 Decisions): the right to economic activity (20); labor rights
and freedoms (13); property right (17); right to housing (14); motherhood
and childhood protection (3); right to health protection (2); right to
education (3); right to social security (22).
The right to economic activity
The
Constitutional Court has considered twice the issues connected with private
notarial activity (Judgment of 23.01.1998; Decision of 15.06.2000). There
were found to be at variance with the Constitution and invalid from the date
of their adoption a number of provisions on the Procedure of issuing, use of
the license and dealing with private notarial activity for the period of
carrying out experiment in the city of Minsk approved by the Ministry of
Justice and the Ministry of Finance in part of the established procedure of
taxation of the notaries dealing with private notarial activity. It has been
noted, that the notarial activity of the private notaries is no considered
to bet entrepreneur activity. The proposals of the Court as regards taxation
of the private notaries, redistribution of State tax from the beginning of
the experiment, including also the responsibility of state bodies involved
in carrying out the experiment for the failure to secure proper legal
regulation of the procedure of organization of the experiment and activity
of the private notaries were taken into account in Decrees of the President
of 27.05.1998 № 289 “On some issues of return into the State revenue of
ill-founded acquired State tax”, of 2.02.2000 № 38 “On approval of the
Provision about notariate and notarial activity in the Republic of Belarus”;
Edicts of the President of 3.05.1997 № 12 and of 27.05.1998 № 7, as well as
in the Resolutions of the Government, republican state bodies , decisions of
regional and Minsk city executive committees.
By considering the issue “On the conformity to the Constitution of the
Republic of Belarus of point 2 of Decree of the President of he Republic of
Belarus of 18 January 1999 № 30 “On interpretation of Decree of the
President of the Republic of Belarus of 8 February 1995 № 52” (Judgment of
18.02.2000) there have been reconfirmed the right of the President on
official normative interpretation of the normative legal acts, adopted by
him with the purposes of giving an explanation not only of the contents of
the norms under interpretation, but also the procedure and conditions of
their application to the grown up relations. There have not been excluded
the right, based on the interests of additional protection of the economic
entities, to solve the problem on distribution of effect of the norms
extenuating the economic responsibility, also in instances, when judicial
ruling has already entered into legal force, or to adopt the decision,
according to which judicial decisions grounded on such an understanding
execution of an export part of the barter contract, as execution of the
contract as a whole. The Decision has promoted settlement of disputes
between the subjects of enterprise activity and controlling bodies.
In a number of its Decisions the Constitutional Court has examined of
licensing of entrepreneur activity. Thus, according to the proposal of the
Constitutional Court (Decision of 28.02.2000) the Government has made the
necessary specifications excluding ambiguity of understanding and
application in practice of the Provision on licensing of guarding activity
in the Republic of Belarus concerning direct effect of the norms of the laws
specifying the competence to access of the authorized officials of state
bodies to the objects (territory), organizations irrespective of the forms
of ownership and jurisdiction for exercising by them in the prescribed order
of official service functions.
The competent bodies have been submitted the proposals concerning licensing
of activity of educational institutions (for the Council of Ministers,
Decision of 13.07.2001), concerning settlement of contradictions of certain
norms of the Law “On motor transport and automobile carriages” to the Civil
Code (Administration of the President, Decision of 18.07.2001), concerning
legal regulation of opening drugstores, chemist's points, chemist's kiosks
and chemist's warehouses (Decision of 23.05.2002), by consideration of which
the establishment of quantitative restrictions on opening of chemist's
institutions was found to be at variance with the Laws “On public health
protection” and “On entrepreneur activities in the Republic of Belarus” and
at the present moment is cancelled.
The issues of regulation of economic activity by local bodies of government
and self-government have been also subject to study:
on illegal Decision of Mogilyov city council on collection of duty from
legal persons for the use by them in their names of the word "Mogilyov"
(Decisions of 5.05.2000 and of 2.06.2000). Such a duty has been abolished,
and the relevant local payment, entered within the limits of powers of
Council of deputies is subject to be raised;
on legal regulation of placing of the outdoor advertising in one the city of
Minsk, as a result of study of which the Council of Ministers has been
proposed to make alterations and addenda directed on ensuring of proper
participation of local executive and administrative bodies, in particular,
Minsk city executive committee, while coordinating advertising information;
to solve the issues of coordination of placing of the outdoor advertising on
the objects which are of historical and cultural value, and in zones of
their protection according to the Law “On protection of historical and
cultural heritage”; to consider the proposal of Minsk city executive
committee on collection of payment for placing of the outdoor advertising,
taking into account the fact that dwelling place, which is forming by a
complex constituting, and being object of common use of the population,
shall be of commercial value while choosing the place and way of placing of
the outdoor advertising with the purpose of possible introduction of the
draft law on alterations and addenda into the Law “On advertising”, focused
on the interests accounting of both the owners of places of placing of
advertising and interests of. The city of Minsk as a whole in development of
an infrastructure answering its status as the capital (at present the
relevant documents are working out in the Government);
on financing from the local budget of expenses on maintenance of department
children's preschool establishments (city of Mogilyov) (Decision of
18.07.2002).
A number (of Decisions (of 21.12.2001, of 6.11.2002) concerns protection of
the rights of the citizens in the sphere of bank activity: in Decision “On
constitutionality of reduction by banks in the one-side procedure of the
interest rates under the agreements of the bank deposit” the Parliament has
been proposed to secure the constitutional principles of freedom of
agreement, equality while carrying out entrepreneur and other not banned by
the law economic activity, regulation of economic activity in the social
purposes, protection of the rights, freedoms of an individual and guarantee
of their realization to stipulate in the Banking Code the instances, under
which it is admissible the lowering by banks in the one-side procedure of
the interest rates under the deposits of citizens with the purpose of
exception of any aggravation of conditions of the agreement for the citizen
- depositor in the absence of any objective preconditions. The relevant
draft is working out by the National Center of draft law activity.
Judgment of 7.02.2002 “On the conformity to the Constitution of the Republic
of Belarus of the Instruction on the procedure of formation of the rent
rates by legal persons of non-governmental form of ownership while renting
uninhabited buildings (premises)” the given Instruction was found to be at
variance with the Constitution, with the Civil Code, with other legislative
acts of the Republic of Belarus and invalid from the date of adoption of the
Judgment.
The Constitutional Court has examined the issue (Decision of 29.05.2002,
explanations of 7.06.2002, of 11.06.2002) of legal regulation of reception
of cash money resources by the individual entrepreneurs with the use of cash
summing devices. In view of that Decision the Government, the National Bank,
the Ministry on taxes and dues had adopted additional measures on creation
of favorable conditions for development of individual business: the term of
introduction of decisions on the use of cash summing devices has been
transferred (changed), a number of banking privileges on accounting cash
service has been established, necessary alterations in the Provision on the
procedure of the use by legal persons and by individual entrepreneurs of
cash summing devices and of special computer systems for receiving cash
money resources while realizing goods (works, services).
Decision of 19.07.2002 “On legal regulation of the conclusion by the natural
persons of foreign currency loan contracts” has noted, that legislation of
the Republic of Belarus is authorized the natural persons – residents,
without registration in the National Bank of the separate permission on
carrying out currency operation, to receive a loan in foreign currency for
the term of more than 180 days from the non-residents (i.e. natural persons
who have permanent habitation outside the Republic of Belarus, including
those who are temporarily in the Republic of Belarus). The Prosecutor's
Office of the Republic of Belarus has been proposed to study the practice of
application by the courts of law of the legislation on currency regulation,
including while concluding by the citizens of the Republic of Belarus of the
foreign currency loan contracts with the purpose of possible improving of
the legislation and law applying practice in this area for more full
protection of the property rights and lawful interests of citizens. Now such
a work of the Prosecutor's Office is near completion.
The position of the Constitutional Court as regards the necessity of
improving the mechanism of control over activity of a manager, examination
of the cases connected with economic inconsistency (bankruptcy) of economic
entities is worded in Decision of 1.04.2003 “On improvement of the Law “On
economic inconsistency (bankruptcy)” and other legislative acts”. At present
moment the proposals of the Constitutional Court under the instruction of
the Council of Ministers are subject to study in the Ministry of Economy.
The important place in the activity of the Constitutional Court takes the
Decisions directed on ensuring of labor rights and freedoms (Articles 41,
42, 43 of the Constitution).
Judgment of 9.06.1998 has found to be at variance with the Constitution and
with the Labor Code the provision of point 38 of Ruling of Plenum of the
Supreme Court of 17.06.1994 № 5 “On some issues of application by the courts
of law of the legislation settling labor disputes” in part of explanation on
the right of the employer to cancellation of the employment contract with
the worker under point 1 of Article 33 of the Labor Code in case of refuse
of the worker from conclusion of the contract on full material liability for
damages under the reasonable excuses, including, if the previously performed
work required no conclusion of such a contract and there was no possibility
to transfer the worker with his/her consent to another work. Ruling of the
Supreme Court of 8 June 1998 № 5 has excluded point 38 from Ruling of the
Supreme Court of the Republic of Belarus of 17 June 1994 № 5.
As a result of adoption of Judgment of 1.06.1999 “On the conformity to the
Constitution of the Republic of Belarus and to international legal acts of
part one of Article 182 of the Administrative Code of the Republic of
Belarus” and as a result of finding of the specified norms to be invalid,
the officials of organizations are subject to no application of the
administrative responsibility for employment of citizens who are living
without a registration (propiska).
The Council of Ministers has been realized the proposals concerning the
procedure of granting and summation of labor holidays (Decision of
22.09.2000):
on bringing the Procedure of granting and summation of labor holidays
approved by the Council of Ministers into line with the Law “On bases of a
service in the state device ", with Decree of 9.09.1997 № 16 and Decree of
26.07.1999 № 29. At the same time, it has been noted, that the norms of this
Procedure may not limit the total duration of the basic holiday and
additional holidays, which are stipulated by the specified Law and Decrees
of the President;
on the necessity to proceed from the fact that additional holiday for the
work in harmful working conditions of the duration fixed by the legislation
shall be given in full. While summing up such a holiday with the basic
holiday their common duration in cases stipulated by legislative and by
other normative acts, may be also more than 35 days;
on making addenda to the specified Procedure of granting and summation of
labor holidays, so that the part-time week workers but with full-time
working day and who are forced in specific instances to perform the job over
normal duration of working hours have the right to additional holiday for a
non-fixed working hours in proportion to the hours worked for.
In the fulfillment of Decision of 1.02.2001 “On dismissal pay repaid
according to the legislation on the basis of the collective agreement while
dismissing due to termination of the contract term” the relevant normative
acts of State tax committee shall specify, that the dismissal pays repaid in
other instances, stipulated by the legislation of the Republic of Belarus or
by local normative acts (collective agreements, contracts), are not subject
to no income tax .
The opinion of the Constitutional Court was informed to the interested State
bodies and organizations:
on the right of approval of the list of non-fixed working hours workers
(Decision of 21.03.2001);
on the collective labor dispute on the issue of increasing the sizes of the
wage for the workers in the field of education (Decision of 3.05.2001);
on the conformity to the Constitution of the letter of the Ministry of
Justice, Ministry of Labor and social protection of 6.11.2001 “On some
issues of the procedure of release and appointment to the post of the heads,
their deputies, other officials of State bodies which are included in system
of republican state bodies Republic, subordinated to the Government of the
Republic of Belarus” (Decision of 30.11.2001);
on deduction of income tax from dismissal pays (Decision of 24.05.2002)
In connection with Decision of the Constitutional Court of 2.05.2001 “On the
an official explanation of questions connected with duration of working days
while adjourning working days”, submitted to the Ministry of Labor, this
State body has approved the Rules of scheduling and account of working hours
due to adjourning certain working days which contain the necessary
explanations.
According to Decision of 13.11.2001 ”On minimal compensations for
aggravation of legal status of the workers” the employer at the expense of
the own remedies may fix higher size of minimal compensations in comparison
with the size stipulated by Resolution of the Council of Ministers providing
minimal compensation for aggravation of legal status for the workers, who
reached pension age (men - 60 years, women - 55 years) and who have the
right to full pension, as well as for the workers who have not reached the
specified age, but who receive pensions (except for the labor disability
pensions in a case of loss of a bread-winner and social pensions), at a rate
of two weeks average earnings. Resolution of the Government was found to be
in line with the Constitution, with Article 14 of the Labor Code and with
Decree of the President of 26.07.1999 № 29 “On additional measures on
perfecting labor relations, strengthening labor and execution discipline”.
In connection with consideration of the issue on untimely payment of wages
through the fault of the employer (Decision of 2.07.2002) the Constitutional
Court has made proposal to the National Center on draft law activities on
including in the Labor code of the norm on responsibility of the employer
for infringement of the terms of payment of wages, on indexation of wages in
case of its untimely payment, as well as on the right of the worker to claim
to material and moral harm caused by delay of payment of wages. The
proposals of the Constitutional Court have been taken into account in the
prepared draft of the Law “On making alterations and addenda into the Labor
Code of the Republic of Belarus”.
The Constitutional Court in its Decision of 24.04.2003 “On legal regulation
of payment of State tax while considering labor disputes” based on the fact
that the issue on payment of State tax under labor disputes while appealing
to various instances (the court of law or the Prosecutor's Office) should be
clearly regulated in the current legislation in view of the provisions of
the Labor Code on release of the workers from payment of the law costs while
examining labor disputes, has proposed the National Assembly to make
necessary alterations and addenda into the Law “On State tax” and into other
normative legal acts with the purpose of elimination in them of the
contradictions and gaps. The Constitutional Court shall not exclude the
possibility of various variants of solution of the given issue: those
proposed by the Court in its Decision or others.
The property right (Article 44 of the Constitution).
Decision of 25.03.1997 “On interpretation of Judgment of the Constitutional
Court of the Republic of Belarus of 27 June 1996 “On the conformity to the
Constitution and to the laws of the Republic of Belarus of Resolution of the
Supreme Council of 11 June 1993 “On the procedure of sale and purchase of
flats (houses) in the Republic of Belarus and Temporary provision on the
procedure of sale and purchase of flats (houses) approved by the Council of
Ministers of 31 August 1993 № 589 has recognized the right of citizens of
the Republic of Belarus, including those who live constantly beyond its
bounds, to acquire flats (house) under the contract of purchase and sale in
any locality of the Republic of Belarus irrespective of the place of their
residence. It is specified that the law may define the peculiarities of sale
and purchase of flats (houses) in the city of Minsk, since Minsk as the
capital of the Republic according to the Constitution has the special
status. It is noted that the foreign citizens and stateless persons who live
constantly in the territory of the Republic of Belarus and have a lawful
source of existence, use equally with citizens of the Republic of Belarus
the right to acquire by way of sale and purchase flats (houses) in Belarus.
At the same time, there is no exclusion of the possibility of establishment
by the international treaties and by the laws of the Republic of Belarus of
the peculiarities of acquiring by them of flats (houses) under the contracts
of purchase and sale. Foreign citizens and stateless persons, who have no
constant habitation in the Republic of Belarus, shall have the right to
acquire flats (house) in the Republic of Belarus under the international
treaties and in accordance with the established procedure of realization of
standards of the international treaties. The given conclusions of the
Constitutional Court are fixed subsequently on the legislative level.
The Constitutional Court has considered twice the issues connected with the
property right to vehicles and with actions of the officers of militia who
remove state license plates from automobiles for a wrong parking of a
vehicle (Decision of 4.03.1998), and with the grounds for compulsory towing
(Judgment of 23.07.1999). As a result of Decisions of the Constitutional
Court, first of all, wrongful actions of the officers of State automobile
inspection were excluded; secondly, there were found to be invalid the
provisions of a number of decisions of Minsk city executive committee, which
have regulated the procedure and conditions of towing, storage and
realization of vehicles which are blocking up inside yard territory,
preventing from clearing streets and roads. Detainment and compulsory towing
of a vehicle have been regulated, as it has been proposed by the
Constitutional Court in the Law of 16.07.2001 “On making addenda to the
Administrative Code of the Republic of Belarus".
Under the proposal of the Constitutional Court submitted to the Government
(Decision of 7.05.1998), on updating the Provision on the procedure of
transfer by natural persons of personal property through customs border of
the Republic of Belarus, in part of ensuring the possibility of granting the
right to transfer for usage of a vehicle to the close relatives of the
person, who brought in (introduced) the given vehicle, those limitations
were cancelled by Resolution of the Council of Ministers of 17.09.1998 №
1457 “On making alterations in Resolution of the Council of Ministers of the
Republic of Belarus of 10 April 1997 № 315".
Due to numerous motions of citizens on the issues connected with
compensation to citizens of depreciation of deposits and bonds of the state
purpose interest-free loan of the USSR of 1990 the Constitutional Court
within the limits of its powers has repeatedly (Decision of 8.02.1999; of
17.12.1999; of 31.12.2002) forwarded to the Government of the proposal on
improving mechanisms and the procedure of compensation. In particular, the
following position of the Constitutional Court has been worded:
on possible, alongside with study of the issue on making alterations and
addenda into Decree of 21.04.1998 № 229, preparation of the draft of a
special law about execution of obligations under the state purpose
interest-free loan of the USSR of 1990, as it was done in the Russian
Federation;
on the right of the State to secure more reasonable (in comparison with the
previous one) mechanism of compensation, since solution of those issues is
within the competence of the supreme bodies of State power;
on study of the possibility, as one of the variants of compensation of
losses of the bonds’ holders, of establishment not only pecuniary
disbursements, but also distribution of the defined goods (in particular, by
allocation for those purposes of confiscated production, use of other
sources).
The references of the Constitutional Court contain the opinion that
development and introduction of more perfect mechanism of payments with the
citizens – bonds’ holders which envisage real compensation of losses, are
able to restore confidence of citizens to the State as to the loaner under
the State loans, will allow to use the State loans as an efficient source of
internal investment, and the practice of the former Union of SSR, foreign
states shall signify that. Answers contain the information on intents of the
Government in process of improving economic situation to search for the
solution of this problem, as well as on allocation step by step on the basis
of the laws on budget for each year of the remedies for compensation to the
population of damage from depreciation of the pecuniary savings and bonds of
purpose interest-free loan of 1990.
The Government has taken into account the proposals of the Constitutional
Court (Decision of 26.04.2000) on the necessity of perfecting land
legislation concerning the rights of the members of gardening partnerships
who are owners of land lots. The Law of 25.05.2002 “On making alterations
and addenda into the Civil Code of the Republic of Belarus” has specified
the status of gardening partnerships; at present moment, there have been
prepared the draft of Resolution on approval of the Model Rules of gardening
partnerships providing, as it was proposed by the Constitutional Court, for
more full legislative protection of the rights of the members of gardening
partnerships who are the owners of the land lots.
Decision of 22.12.2000 “On the some issues concerning legal protection of
the inventions”, forwarded to State patent committee, has paid attention to
the presence of a relatively long interval of time when the complete
information on the invention actually is dropping out of the possession of
the author (applicant), but they remain to be without proper legal
protection up to publication of the application, and that does not exclude
potential possibility of disclosure of information about the invention
before receiving temporary legal protection. In the opinion of the Court, in
cases referred to the inventions of real interest for the Republic of
Belarus, it is necessary to reduce at most the terms from registration of
the application till the official publication of the information about the
application (within the limits under the Law), including primary after
making a preliminary expert examination with positive result to reveal
opinion of the applicant on possible publication of the of information about
the application before the term specified in the Law. State patent committee
in its answer has informed about adoption of necessary measures on ensuring
observance of state interests in this area.
The Constitutional Court has considered twice the issues connected with
return of shares to the citizens, who removed from Housing and building
co-operatives (HBC): Decision of 24.06.1999 the Council of Ministers has
been proposed to solve the problem on normative regulation of the procedure
and conditions of disbursement of the shares to the HBC members, who removed
therefrom after completion of construction, and to the heirs of the
shareholder died after the completion of construction. The proposal has been
taken into account in Resolution of the Council of Ministers of 22.09.1999 №
1469 “On the some issues of organization and activity of housing and
building co-operatives”;
Decision of 12.06.2001 has indicated imperfection of the Temporary provision
on the procedure of indexation of shares returning to citizens in case of
their removal from HBC, approved by the Cabinet of Ministers in its
Resolution of 6.06.1996 № 375, in the part where the terms of return of
shares do not take into account the peculiarities of formation and
expenditure of financial assets of HBC that shall restrict the rights and
lawful interests of the members of co-operatives, shall worsen functioning
of HBC as legal persons, detain the completion of construction of apartment
houses and their input in operation. The Government has been proposed to
define the procedure of return of the shares, which would secure legal
protection both those removing from and remaining HBC members, other
organizations of the citizens - tenant builders; to provide possible
mechanisms of rendering of assistance for HBC, other organizations of
citizens - tenant builders in solution of the issues concerning return of
the shares to citizens, who removed from the members of a co-operative, in
view of goodness of the reasons of removal, other circumstances deserving
attention. The proposals have been taken into account in Resolution of the
Ministry of architecture and construction of 28.01.2002 № 3: in case of a
voluntary withdrawal or expulsion of the investor from organization of
citizens - tenant builders (participants of share building) the decision on
that and on return of money funds made shall be adopted by the general
meeting. The returning sum shall be subject to indexation in view of an
index of change of cost of civil and installing works at the date of
disbursement. The final pay shall be approved by the organization of
citizens - tenant builders within seven days after adoption of the decision
about expulsion (cancellation of the agreement). The disputes on the sizes
of the returning sum designed payment and on terms of its return are subject
to judicially settlement.
A number of Decisions have been adopted on compulsory insurance:
Decisions of 13.08.2001 and of 20.02.2002, forwarded to the Administration
of the President, contained the proposals on improving the procedure and
conditions of carrying out compulsory insurance of civil liability of the
holders of vehicles: it is offered to envisage more efficient mechanisms of
legal protection of interests of the insurants, in particular, indexation of
the size of harm at the date of actual disbursement of insurance indemnity.
The proposals to a certain degree have been taken into account in Decree of
the President of 26.03.2002 № 159 “On making alterations and addenda into
Decree of the President of the Republic of Belarus of 19 February 1999 № 100
and into the Provision on the procedure and conditions of carrying out
compulsory insurance of civil liability of the holders of vehicles”. In
particular, there have been made the addendum that, if the insurer (bureau)
within two months period from the moment of road (traffic) accident made no
effected disbursement of insurance indemnity, he/she is obliged to effect
recalculation of the size of harm caused to the injured party, based on EURO
rate, fixed by the National Bank at the date of taking formal note on the
insured accident. The legal protection of interests of the insurants would
be more full in case of recalculation of the size of harm based on EURO
rate, fixed at the date of actual disbursement of insurance indemnity, but
not at date of taking formal note on the insured accident.
As regards the issue on compulsory insurance of structures belonging to
citizens the Council of Ministers has been proposed (Decision of 19.09.2001)
to analyze: 1) technique of estimation of buildings and structures belonging
to natural persons with the purpose of funding possibility of its
reconsideration; 2) conditions and procedure of granting privileges on
insurance payments; 3) to take measures on finding optimum balance of
interests of the insurants - citizens and the State. As a result, the
Council of Ministers in its Resolution has reduced twice the insurance
tariff - up to 0,2 percents from the sum insured.
Decision of 24.05.2002 has paid attention of the Government to the necessity
to define the notion “cost of land” and to set the procedure of estimation
of cost of land lots at their succession and on disputes arising thereon.
The proposal has been taken into account in Resolution of the Council of
Ministers of 17.12.2002 № 1764 “On approval of the Provision on the
procedure of carrying out estimation, reassessment of grounds, land lots”.
The right to housing (Article 48 of the Constitution).
The significant attention of the Constitutional Court has been paid to the
issues connected with the procedure and the sizes of payments for usage by
dwellings of the State and public housing fund, as well as with the payment
for municipal services and technical maintenance of dwellings.
Thus, due to Decision of 7.04.1999 delivered for the Council of Ministers by
the proposal on approval of the uniform single normative act on the given
issues, there have been adopted Ruling of 25.08.1999 № 1332 “On regulating
final payments of the population for usage by dwellings and for technical
maintenance of dwellings”.
Decision of 27.10.1999 has proposed the Council of Ministers to take
additional measures on legal regulation of the procedure and conditions of
payment of municipal services by citizens who have several dwellings, in
particular, in urban and in countryside locality, in case of their absence
in one of them due to their habitation at this time in another dwelling;
to solve the problem on possibility of use of privileges on payment of
municipal services in proportion to the term of habitation in each of
premises; at the same time, to consider the issue on possible strengthening
of civil responsibility for presentation for recalculation of payment for
municipal services of untrue information about temporary absence in the
place of residence. The proposals stated in Decision of the Constitutional
Court have been partially realized in Resolution of the Council of Ministers
of 31.01.2001 № 128.
In the fulfillment of Decision of the Constitutional Court of 5.09.2000 “On
payment for usage by dwellings and maintenance service of housing fund” and
with the purposes of regulation of payment of citizens for housing municipal
services the Government has adopted Resolution of 31.01 2001 № 128 “On
making alterations and addenda into Resolution of the Council of Ministers
of the Republic of Belarus of 25 August 1999 № 1332”, according to which the
payment for maintenance service of dwellings both for the hirers, and for
the owners should be realized under the rates (tariffs) established by the
Ministry of Economy in the final pay at 1 sq. meter of the general(common)
space (area) of dwellings. The Constitutional Court in its Decision has not
excluded that the owners of dwellings should make payment for maintenance
service for all the dwelling and under the normative cost price in
proportion to their share in the right of the joint property. The similar
demands should be applied also to the tenants of dwellings. Grounded on
social nature of the State, increase of payment for usage of dwellings and
for technical servicing of housing fund should be accompanied by the growth
of the incomes of the population.
As regards the questions on payment for “superfluous meters” the Court has
given its position for Federation of trade unions of Belarus (Decision of
26.03.2001), for Vitebsk oblast council of trade union “Sadruzhnast”
(Decision of 5.04.2001).
In connection with Judgment of 2.06.1999 “On the conformity to the
Constitution of the Republic of Belarus of part two of Article 5 of the Law
of the Republic of Belarus “On privatization of housing fund in the Republic
of Belarus”, which has found the given norm to be unconstitutional and
proposed the National Assembly to secure legal regulation of the issues
concerning possibility of privatization by certain tenants dwellings they
occupy in flats populated with several tenants, the specified category of
citizens has been given this right (Law of 22.06.2001 “On making alterations
and addenda into the Law “On privatization of housing fund in the Republic
of Belarus”).
The Constitutional Court has also studied the issues connected with State
support of citizens while constructing (reconstructing) or acquiring
dwelling premises: “On referring citizens to the category of those of
moderate means and able-bodied for receiving State support while
constructing (reconstructing) or acquiring dwellings” (Decision of
6.07.2001); “On Decisions of Minsk urban executive committee concerning
suspension of reception of documents for indexation of cheques “Housing”
(Decision of 23.05.2002).
In fulfillment of Decision of 13.07.2001 “On the procedure of registration
of the property right on a flat in the house of housing and building
co-operative” the Ministry of a housing and municipal services in its
Resolution of 19.03.2002 № 2 has approved Instruction on the procedure of
registration of the property right on a flat in the houses of housing and
building co-operative, housing co-operative.
Decision of the Constitutional Court of 24.05.2002 has proposed the
Government to bring in due order the proposals on legislative settlement of
the issues connected with realization of the right of citizens to dispose of
the dwellings they owned in detached military camps (cantonments). Under the
information of the Council of Ministers, the Ministry of Defense in
co-ordination with the Ministry of housing and municipal services and with
the Ministry of Justice are working on preparation of drafts Law “On making
alterations and addenda into the Law of the Republic of Belarus “On
privatization of housing fund in the Republic of Belarus” and “On making
alterations and addenda into the Civil Code of the Republic of Belarus”.
Under consideration was also the issue on Decision of the Minsk city
executive committee of 16.06.1997 № 537 “On procedure of crediting and
populated of the flats built by citizens with engaging preferential bank
credits and with use of bounties (grant-in-aid) for housing construction”
(Decision of 29.11.2002). Minsk city executive committee has been proposed
to bring its Decision into line with the Housing Code, or to initiate
stipulation in the acts of legislation of the norms concerning the
possibility of distribution of authorization to dwellings or others forms of
control over the rules of dwellings’ lodging.
For protection of motherhood, childhood and family (Article 32 of the
Constitution) were directed:
Judgment of 26.06.1998 “On the conformity to the Constitution of the
Republic of Belarus of part two of Article 116 of the Family Code of the
Republic of Belarus” by which the given norm, to the extent it supposes
adoption of children without the consent of the parents or persons in loco
parentis under the extrajudicial procedure, has been found to be at variance
with the Constitution and with Convention on the rights of child and invalid
from the moment of adoption of the Judgment. Before making alterations and
addenda there shall be direct application of part four of Article 32 of the
Constitution enshrining legal judicial procedure of separation of children
from their family against will of the parents or persons in loco parentis
(Article 121 of the Family Code, enforced of 1.09.1999, shall specify legal
judicial procedure of separation of children from their family);
Decision of 22.07.2002 “On establishment of quarterly administrative control
of execution of judicial rulings on the aliments and application of more
strict measures to the debtors, who refer unscrupulously to execution of
aliments obligations”, was forwarded to the Ministry of Justice which
informed that this issue is under control in the given body;
Proposal to the House of Representatives of the National Assembly (Decision
of 22.07.2002) on fixation of minimum size of aliments, recoverable from the
parents for the children under age. The House of Representatives has
informed about possible making of the proposed alterations after additional
study by them of reputed consequences of introduction of such a norm.
In the sphere of the right to protection of he | 
