In detail...

The Role of the Constitutional Court of the Republic of Belarus in the Protection of Rights and Freedoms of the Citizens

The constitution of Byelorussia fixes, that our state is social (article 1). In essence this norm obliges the power structures to spend active social policy, and to carry out measures on stabilization of economy. Especially as it is stipulated in article 2 of the Constitution, that the person, his rights, freedom and a guarantee of their realization are the supreme value and the purpose of society and the state.

For the last decades the maintenance and observance of the rights and freedom of the person is being considered as the major task of activity of the state bodies. The Constitutional court is not here an exception. Moreover, the essence of its basic function consists in the check up of the constitutionality of statutory acts as they should always be under a prism of protection of the rights and freedom of each person, and maintenance of the optimum mutual relations between the state and the person.

The presence of the Constitutional Court and its activity on maintenance of leadership of law testifies to democratic character of our state, aspiration to develop such constitutional build, which in its contents answers the international standards, the most important among which is the recognition of the rights and freedom as the supreme value.

The constitutional Court of Byelorussia, as well as similar bodies of other countries, takes out a little bit less decisions, than other courts (the general (common) or economic). So, for example, all in 1994-2000 by the Constitutional Court of Byelorussia there were considered only about 100 cases.

However the decisions accepted by the court affect simultaneously thousand and thousand people, frequently having important value for the country. Therefore it is so important to take out objective, legally argued, politically impartial decisions.

In the Constitution of Byelorussia in force almost half of articles is devoted to the rights, freedom and duties of citizens. In the transition period especially the great value get the socio-economic and socio-cultural rights of citizens. This is the right on work, on its fair payment, on association in trade unions, on rest, on dwelling, on health protection, on a worthy standard of life of the citizen and his family, on social security in an old age, in case of illness, physical inability and in other cases stipulated by the law, the right on education and on participation in cultural life. The property right is also attributed to this category of rights, though in the legal literature it is frequently considered as the integral, inalienable right of each person.

The list of these rights shows their importance in the daily life of the citizens.

If for realization of many inalienable laws of the person on the part of the state are required insignificant financial injections, than concerning the maintenance of the social and economic rights and freedom completely other principles operate, what imposes the huge responsibility on the Constitutional Court at acceptance of decisions on the questions of social and economic character. In this respect are significant the conclusions of the Constitutional Court about payment during the compelled truancy, about the right on judicial protection of the main experts, about the working enterprises with the collective pattern of ownership, accepted in 1994, 1995, about the performance of obligations on payment of taxes (the decisions accepted in 1997, 1998).

The Constitution possesses norms which the Constitutional Court (at solving the concrete cases), and other state bodies should understand with a view of their uniform and correct interpretation. For example, according to the second part of article 21 of the Constitution everyone has the right to a worthy standard of living, including worthy nourishment, clothes, habitation and their constant improvement. The state has undertaken a duty to guarantee the rights and freedom of citizens of Byelorussia, fixed in the Constitution.

The problem of maintenance of the economic, social and cultural rights and freedom is not less difficult, than the maintenance of political, and also the integral, inaliennable rights and freedom which are in the narrow sense of the word classified as human rights. The specificity of work of the bodies of the constitutional control on protection of the social and economic rights and freedom was discussed at the conference which took place on June, 3-5, 1998 with participation of the constitutional courts of 11 states. As a whole the practice of interpretation of the Constitution with the purpose of maintenance of its uniform application of its norms, and exceptions of any infringements should be wider. The right of interpretation of the norms of the Constitution, not being formally stipulated in the text of the Constitution and the law about the Constitutional Court, is actually realized in the activity of the Court what demands more precise legal settlement.

In the socio-economic sphere the decisions of the Constitutional Court should be not less weighed, than on consideration of other cases. Byelorussia, as well as the overwhelming majority of newly formed states, cannot yet carry out the social duties at that level at which these are carried out by such social states as Germany or Sweden. The level of economic development of the state influences the contents of the decision of the Constitutional Court.

Basically it is not excluded in the international documents. So, in article 2 of the International pacts ratified by Byelorussia concerning the economic, social and cultural rights, it was stipulated, that each state participating in the named Pact pledges in the individual order, by way of the international help and cooperation to take measures in the maximal limits of available resources to provide gradually full realization of the rights, recognized in the Pact in all appropriate ways, including, in particular the acceptance of legislative measures.

From all mentioned above it is possible to draw the following conclusions: 1) the maintenance of the social and economic rights depends on the available resources of the state; thus they should be used in the maximal limits; 2) the state should aspire to the most full realization of these rights by all ways, including legal ways. It is important, that the rights proclaimed in the named Pact should be carried out without any discrimination, as that concerning race, color of skin, sex, language, religion, political or other belief, national or social origin, a property status, birth or other circumstance (article 2 of the International pact).

It is necessary to notice, that there were already generated universal international standards in sphere of maintenance of the integral and political rights and freedom, though it is difficult to assert so concerning, the social and economic rights, and that is why the complex and multilane work is necessary both on international, and at the state, national levels.

The socio-economic, socio-cultural rights and freedom of citizens are closely connected to inalienable laws and freedom. For example, the acknowledgement of the decisions of the Constitutional Court on illegality of statutory acts of the Parliament and the Government, accepted in 1993 regulating sale and purchase of apartments and houses). The court recognized unconstitutional the norms limiting purchase - sale of apartments (houses) by the citizens of Byelorussia, and also by other persons constantly living in its territory. By interpretation of the conclusion in 1997 there were given answers to some questions arising in practice. Thus, it would be desirable to pay attention to the fact, that almost two years after acceptance of the Constitution on March, 15, 1994, these obviously unconstitutional acts operated and the Parliament didnt bring them into accord with the Organic law, so the constitutional rights of hundreds and hundreds people, since then were broken, because in practice the constitutional norm having legal leadership actually did not operate.

So, proceeding from the constitutional guarantees of freedom of movement and choice of residence within the limits of Byelorussia, the property right and the right of citizens on dwelling, and also the norms of international law, the Constitutional Court under its decision from March, 25, 1997 abolished a number of restrictions existing beforehand. It specified, that the citizens of Byelorussia including those constantly living, outside the country have the right to get apartments or houses under the contract of sale and purchase in any settlements of Byelorussia irrespective of a constant residence. The similar right should be used towards the foreign citizens, persons without the citizenship, constantly living in Byelorussia and having a lawful source of existence. The features of purchase of apartments (houses) can be established in Minsk, the capital of our republic, which status is defined by the law. As if to the foreign citizens who are not constantly living in the territory of our republic the right on purchase of apartments or houses can be realized according to the international contracts and the established procedure of realization of the contracts.

Till nowadays does not weaken the interest to the case considered by the Constitutional Court about constitutionality of some positions of the law from May, 17, 1997 about the modification and additions in the Criminal and Judicial-criminal codes.

The constitutional Court came to a conclusion, that some separate norms of the specified Law soften the criminal liability. Therefore it recognized unconstitutional the corresponding norms of the law which did not suppose the revision of the verdicts which had entered validity. At the drawing of the decision the Constitutional Court started with the following. After such conclusion of the Constitutional Court, it was necessary to reconsider some thousand criminal cases. It was an additional work to judges, to workers of the Procurators Office, and internal affairs. But in this case the question concerned destinies of people, even they had made mistakes.

According to part six, article 104 of the Constitution the law has no return force, except for cases when it softens or cancels the responsibility of citizens. For the first time this fundamental legal principle was fixed in the new wording of the Constitutions of 1994, and now should be applied concerning introduction and acting of the other norms.

The international pact about the civil and political rights provides, that if after fulfillment of a crime the easier punishment is established by the law, then the action of this law is also distributed to the given criminal.

There was expressed the opinion concerning the unreasonable loyalty of the decision accepted by the Constitutional Court as the places of imprisonment there will leave more than ten thousand people, it will worsen the criminal level and also that reduction in term of imprisonment to separate people on a year or two will be not correct.

As a result of such decision of the Constitutional Court three hundred people (from the moment of removal of the decision) - our citizens - have been released ahead of schedule from places of imprisonment, including those who committed crimes which now are not regarded as penal. Still as a result of revision of criminal cases to some parts of the condemned persons, have been a little bit reduced terms of presence in places of imprisonment. The justified humanism, the proportion between the punishment and the offence are the major factors in the policy of the state in criminal - legal sphere.

In the other case the Constitutional Court in the conclusion from November, 27, 2003, confirming the right of the persons who reached a pension age but being in places of imprisonment, on receiving pension appointed to them, and so corrected the blemish of the decision accepted on 21 May, 1996. Having recognized the right on receiving pensions by these people, we in the conclusion from November, 27, 1997 have specified, that the legislator can provide due to these pensions the order of compensation of charges on maintenance of the specified people in corrective-labour establishments, compensation of the damage caused by a crime, and also payments under other obligations.

Thus in essence there were protected interests of all tax bearers on whose means the condemned are maintained. In the result the Parliament passed the law in which as it is represented, the optimum decision on the given question was found.

The decisions of the Constitutional Court of Byelorussia accepted in June, 1998 also testify, that not in words, but in practice the court aspires to maintenance of leadership of the law, those standards in the field of the rights and freedom of the person which were ratified by the world community. For example, in the conclusion from June, 9, 1998 the Constitutional Court specified, that normative acts (if they worsen the position of citizens) should be commissioned only after their publication or bringing up to general data or by other ways stipulated in law. It is inadmissible to give return force to such acts.

The real contribution to expansion of judicial protection was the conclusion of the Constitutional Court from June, 19, 1998 on the case about the check up of conformity of article 246 of the Code about administrative offences to the Constitution.

The question concerns the possibility to appeal into the court in case of administrative detention, carrying out the personal inspection, examination of personal things, withdrawals of things and documents, i.e. those measures which are carried out not in the way of judicial-criminal procedure, but administrative execution.

The consideration of the given affair was initiated by the Head of the state and it had fundamental value for the legal system of Byelorussia, maintaining of the direct action of norms of the Constitution, concerning the rights and freedom of citizens.

The subject to be checked was only one article of the Code, but in practice its realization infringe the interests of the huge number of people. Being based on the Constitution, the positions of the General declaration on human rights, norms of the International pact about the civil and political rights, the Constitutional Court specified, the priority of rules, which guarantee to everyone the judicial protection of his rights and freedom, also including the judicial check of legality of detention, personal inspection, examination of things, withdrawal of things and documents. In its conclusion the court specified the necessity of direct action of the norms of the Constitution of Byelorussia. The given decision should promote the statement of civilized relations in the sphere of application of special measures of the administrative - legal influence. Later, on June, 23, 1998, there were considered cases about the conformity to the Constitution of some norms of the administrative legislation, concerning the order of the appeal on decisions in administrative offences. There was confirmed the right of everyone on judicial check up of legality of imposing of the official penalty. In this decision there was also specified the necessity of maintenance of direct action of norms of the Constitution.

As a whole I believe, there should be carried out closer cooperation between the Constitutional Court and other state bodies, courts, in cases of maintenance of direct action of norms of the Constitution which have incorporated norms about the rights, freedom and duties of citizens from the General declaration of human rights, the International pacts on the rights, many other international documents.

Thus under the initiative of the Constitutional Court, the Supreme Court and the Supreme Economic Court have directed to subordinate courts the explanation about the order of application of article 112 of the Constitutions. According to article 112 of the Constitutions, if the court by consideration of a concrete case will come to a conclusion about discrepancy of the statutory act of the Constitution or other law, it should address the Supreme Court and the Supreme Economic Court to the question on recognition of the given statutory act unconstitutional.

The non fulfillment of this constitutional requirement and the law results in lack of coordination in judiciary practice since the acts not corresponding to the Constitution keep the force and can be applied by other courts which have not seen such discrepancy. However still essential changes have not taken place. On the other hand, there is a problem when lawyers, as a rule, do not declare petition to the Constitutional Court for necessity of check up in the Constitutional Court of statutory acts for their conformity to the Constitution.

Thus, one of the major factors of modern (democratic) Constitutions, the existence of the constitutional order is the direct action of the constitutional norms, their leadership over the attitude to other acts of the legislation. So the constitutional Court is called by means of check up of the normative acts on conformity to the Constitution, to assert leadership of the constitutional norms and their real, direct action.

Quite often the fundamental rights and freedom of the person and citizen are broken by departmental acts. So, in 1996 by the economic courts there were considered 334 cases not corresponding to the legislation, in 1997 - 337. It is necessary to mention, that after bringing of the law concerning economic court in conformity with the Constitution where it was stipulated, that the control over constitutionality of statutory acts should be carried out by the Constitutional Court, the offers on check of constitutionality of departmental acts are not brought into the court. It does not mean, that the legislation and practice became perfect. In this connection it is necessary to continue the cooperation with economic courts in the sphere of protection of the rights, freedom, and when it is necessary also statements of duties of citizens. The subjects of management quite frequently pay attention to contradictions between the Constitution and other acts, including departmental. In the agreement with the current legislation the Constitutional Court has no right on its own initiative (as well as the majority of similar bodies of other countries) to take proceedings on cases and to take the decision obligatory for execution. Probably in cases when the participation of the Constitutional Court of Byelorussia is necessary, it is useful to practice decision-making of recommendatory character.

It is necessary to note the close cooperation of the Constitutional Court with bodies of Procurators Office in the sphere of protection of the rights and freedom of citizens. It concerns not only the question of check up of constitutionality of statutory acts, but also the protection of the rights and freedom of separate citizens. A legal basis of such interaction is item 35 concerning the Procurators Office which describes the order of consideration and satisfaction of the protests brought by public prosecutors concerning normative acts and bringing them in conformity with the Constitution which has assigned the control over constitutionality of normative acts only on the Constitutional Court.

The constitutional Court also uses the other forms of participation in protection of the rights and freedom of the person, for example, by entering the offers directed on perfection of the legislation with the purpose of more full protection of the rights and freedom.

The constitutional Court of Byelorussia prepares the annual message to the president and chambers of Parliament about the condition of the constitutional legality in the country, that also renders corresponding influence on formation of the legal institute of the rights and freedom, on sense of justice in society, and with separate citizens and officials.

The constitutional Court of Byelorussia uses various forms of its influence on formation of legal system. In some cases it is realized by entering the corresponding offers to the Head of the state, to the bodies of legislative and executive authorities. For the last years some of such decisions were accepted. Sometimes there are also used such forms as the instruction containing the conclusion of the Constitutional Court on necessity of specification of this or that norm or completion of a blank in legal regulation. This is a kind of recommendatory offer which should be necessarily considered by the bodies addressed.

In connection with the fact that the Constitutional Court carries out the control over constitutionality of all statutory acts, it should also possess the right of check of projects of normative-legal acts. Such order, known in the practice of foreign countries, would allow to avoid mistakes in the practice of law application, possible unreasonable financial charges and to carry out more effectively the constitutional control, including preliminary one in the attitude concerning the most important politico-legal documents.

It is also necessary to notice, that the efficiency of protection of the rights and freedom of the person (citizen), would increase, if he had the right to address the Constitutional Court not only for explanations, but also for protection of the legitimate interests. Unfortunately the constitutional Court of Byelorussia, cannot take proceedings on cases about check of constitutionality of statutory acts with the purpose of making the conclusion if the offer proceeds from the citizen.

The various points of view are expressed on this occasion in the national science. On the one hand, it is offered by analogy to practice of many European states, and experience of the Russian Federation, to establish the institute of the Representative on human rights. On the other hand, it would be more expedient, alongside with consolidating of substantive state of the status of the Constitutional Court, to provide its corresponding additional rights and duties. And of course, it directly follows from the contents of part 4 article 22 of the Constitution, allowing citizens to address all the state bodies, hence, including the Constitutional Court.

The constitutional Court at taking not only named, but also the overwhelming majority of the decisions, is guided by the norms of the international law. In the opinion of the leading experts in the field of the law and national scientists, including the chairman of the Constitutional Court, the doctor of jurisprudence, professor Vasilevicha G.A., at revealing divergences between the norms of the international law and constitutional acts, the courts (the general (common), economic) should by analogy use the mechanism stipulated by article of 112 of the Constitution, what will correspond the Viennese convention on the right of the international contracts which participant Byelorussia is since 1986. Moreover, professor Vasilevich G.A. Repeatedly stated the idea on necessity to applicate the practice of the norms of the international contracts ratified by Byelorussia on Plenums of the Supreme Court and the Supreme Economic Court, and he also thinks that the basic international documents ratified by republic should become reference books of judges, members of the parliament, and everyone who possesses imperious powers.

The constitutional Court of Byelorussia is based on its own experience, the working practice of the European Court on human rights, and bodies of the constitutional control of other countries.

One of the immediate tasks for our state is the establishment of closer cooperation and entering this organization on the right of the full member. The basic document for the countries of EU in the field of the rights and freedom of the person is the European convention on protection of human rights and basic freedom which norms are the base for development of the legislation of the European states and practice of its application. In turn it is difficult to overestimate the activity of the European court under human rights which decisions promote the implantation of the norms of the convention into the national legislation of the states, to extending concrete definition of the maintenance of the fundamental laws and freedom and at last, acting as a source of law.

The constitutional Court of Byelorussia is the associated member of the Conference of the constitutional courts of Europe and during the last years its representatives regularly participate in the work of the given instance. In the resolution of the Chairmen of the constitutional courts of Europe accepted in October, 2000 in Belgium there were maintained the efforts of the Constitutional Court of Byelorussia on formation of a lawful state, protection of the rights and freedom of citizens.

On May, 1, 2004 the number of participants of the European Union was essentially extended and replenished with new states - participants and today the number of stars on his flag makes 25. For Byelorussia the given process is also actual. In spite of the fact that Formally European convention for us is not obligatory, the Constitutional Court of Byelorussia, carries out one of the directions of the state policy in the field of rapprochement of the national legislation and the international standards, being guided on both: the European convention on protection of human rights, basic freedom and the practice of work of the European Court on human rights. However in our constitution, consolidating of a priority of the conventional principles of the international law should be also attributed to the norms of the European legal system and, first of all, in the field of the rights and basic freedom of the person.

Such decisions of the Constitutional Court are legal bases for perfection of the legislation, practice of its application; promote the formation of conceptual bases of the national state policy.

Thus, both the politico-legal expediency and objective regularity of creation and activity of the Constitutional Court consists in necessity of constant perfection of the rights and freedom of citizens in connection with the change of their volume and the contents, and also interaction with the state and society.

Shavtsova A.V.,

Candidate of Jurisprudence,

Assistant Professor of the Chair of the Constitutional Law of the Belarus State University, Department Head (Branch) of the Chair of UNESCO on Information Technologies and Law




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