The Bulletin of the Constitutional Court of the Republic of Belarus "Vestnik Konstitutsionnogo Suda Respubliki Belarus" is the regular official quarterly publication of the Constitutional Court of the Republic of Belarus since 1996.
CONTENTS
Introductory article of chief editor of the Bulletin - Chairman of the Constitutional Court of the Republic of Belarus Mr G.A. Vasilevich, Doctor, Professor, Honoured Lawyer of the Republic of Belarus
Official Materials and Decisions
of the Constitutional Court
of the Republic of Belarus
Summary:
12 January 2004 the Constitutional Court has adopted its Decision concerning
constitutionality of setting by Vitebsk, Polotsk and Novopolotsk city Councils
of deputies of local due for the right to deal with gambling business (right
to locate a gambling institution). The specified type of the due shall be related
to the local due from the users.
On the basis of analysis of the relevant provisions of the Constitution, decrees
of the President and laws of the Republic of Belarus, the Constitutional Court
has come to the conclusion that decisions of the specified Councils of deputies
had realized their exclusive powers to set the local due for the right to deal
with gambling business (right to locate a gambling institution) within the rights
granted by Article 10 of the Law of the Republic of Belarus "On budget
of the Republic of Belarus for 2003".
At the same time, the Constitutional Court has paid attention to the fact that
the rates of the local due in question set by local Councils of deputies are
different: 30 base units (Vitebsk), 300 EURO (Novopotsk) and 600 EURO (Polotsk).
While studying the given issue, the Constitutional Court has confirmed its legal
position worded in its Decision of 3 November 2003 concerning the procedure
of setting the local due for the right to trade. For example, if the legislative
acts of the Republic of Belarus set duties and dues for enjoying the special
right, for the purposes of inadmissibility of making the rates of local dues
from the user to be excessive, the right to set the specified due by the local
Councils of deputies should be specified in details by the law-maker.
In this connection the Constitutional Court has proposed the National Assembly
of the Republic of Belarus for the purposes of observance of the constitutional
provision on unified fiscal, tax, credit and currency policy which shall be
pursued in the territory of the Republic of Belarus (part two of Article 132
of the Constitution of the Republic of Belarus) and for securing the protection
of the rights and lawful interests of taxpayers to specify in the law the exhaustive
list of local taxes and dues, which local Councils of deputies may set in the
relevant territory, as well as to determine the parameters of the most important
elements of local dues from the user (payers, objects of taxation, limits of
rates).
Summary:
The case on verification of the constitutionality of point 3 of Article 760
of the Civil Code (CC) of the Republic of Belarus has been brought by the Constitutional
Court of 16 December 2003 as a result of the petition of the House of Representatives
of the National Assembly. The provision of the specified norm of CC shall envisage
that foreign currency and currency valuables may be the subject-matter of the
loan contract in the territory of the Republic of Belarus with the observance
of the rules of Articles 141, 142 and 298 of the Code in question.
In accordance with Article 141 of CC Belarusian rouble is the legal tender,
which is obligatory to be taken according to the nominal cost in the territory
of the country, the instances, procedure and conditions of the use of the foreign
currency in the Republic of Belarus shall be specified by the legislation. According
to Article 142 of CC the types of the property as the currency valuables, as
well as the procedure of carrying out transactions with them shall be specified
by the legislation. The right of ownership to the currency valuables shall be
subject to protection in the Republic of Belarus on common grounds. Article
298 of CC shall envisage the possibility of payment of pecuniary obligation
in Belarusian roubles in the sum equivalent to the definite sum in foreign currency
or in standard (conventional) monetary units; the use of the foreign currency
and payment documents in foreign currency while making payments in the territory
of the Republic of Belarus under the obligations shall be admissible in instances,
procedure and under the conditions specified by the legislation.
Having analysed the norms of the Civil Code and the Banking Code, Law "On
the National Bank of the Republic of Belarus", acts of the National Bank
and other enforceable enactments in the field of currency regulation, the Constitutional
Court concluded that before enforcing the Law of 22 July 2003 "On currency
regulation and currency control" the specified provisions were imperfect,
contradictory, uncertain, and that gave the grounds for their multi-valued understanding
and application in practice. That found its reflection not only in numerous
instances of conclusion of the foreign currency loan contracts between natural
persons - residents and their further complaints to the court of law for the
protection, as they deemed, of the violated rights, but also in finding the
lawfulness of those contracts at the moment of examination of the case in the
Constitutional Court by a number of state bodies, as well by certain scientific
organizations and higher educational institutions.
The Constitutional Court has also emphasized the contradictoriness and inconsistency
of judicial practice on the disputes between natural persons - residents, which
are following from the foreign currency loan contracts, when there were the
instances where the courts of law enforced the recovery of money in Belarusian
roubles for the benefit of an appellant, but in the proceedings the parties
made no refusals as regards the fact of conclusion of the foreign currency loan
contract, and there were transactions found to be invalid and the foreign currency
as the subject-matter of the transaction was returned to the state revenues.
In this connection, there have been paid attention of the Supreme Court of the
Republic of Belarus, as the body directing judicial practice and which has changed
this practice in 2001 with preservation of the same norms of the legislation,
to the fact that its turn was made against the interests of the participants
of foreign currency loan contracts who counted on the protection of their interests
on behalf of the state and, owing to uncertainty of the content of legal norms,
had the grounds to take on behalf the state bodies the measures on fair solution
of the disputes.
In such a situation, in the opinion of the Constitutional Court, for the delivery
of lawful decisions it should be used all the possibilities including improvement
of the acts of the legislation for the purposes of securing their strict and
unique understanding or to meet the requirements of part two of Article 112
of the Constitution for the timely verification by the Constitutional Court
of the constitutionality of the norms of legal acts, which are subject to application
while solving the specified disputes.
Taking into consideration the peculiarities of the situation, the Constitutional
Court found that the law relations as regards the foreign currency loan contracts
concluded by natural persons - residents in accordance with point 3 of Article
760 of the Civil Code before the enforcement of the Law of 22 July 2003 "On
currency regulation and currency control" the disputes on which are at
the stage of examination in the courts of law or have been already examined
by the courts of law, but decisions thereon are not exercised in full or partly,
there should be applied the provisions of Article 11 of the Law "On currency
regulation and currency control". This conclusion shall be based on part
six of Article 104 of the Constitution and part one of Article 67 of the Law
"On enforceable enactments of the Republic of Belarus" under which
an enforceable enactment shall have no retrospective action, i.e. shall not
cover the relations arising before its enforcement, except for the cases when
it not only mitigates or repeals the responsibility of citizens, but also improves
in some other way the position of the persons in question.
The Constitutional Court has proposed the National Bank to bring its acts into
line with the Law "On currency regulation and currency relation" as
well as to ensure unique legal regulation of relations and application of the
given acts, as well as together with other state bodies to take the measures
on more wide explanation for the citizens of their rights and obligations in
the specified field of law relations.
As for point 3 of Article 760 of the Civil Code where the law maker has stipulated
that the foreign currency and currency valuables may be the subject-matter of
the loan contract in the territory of the Republic of Belarus with the observance
of the rules of Articles 141, 142 and 298 of the specified Code, the Constitutional
Court has found it to be in line with the Constitution of the Republic of Belarus.
Summary:
In the Message to the President of the Republic of Belarus, the House of Representatives
of the National Assembly of the Republic of Belarus, the Council of the Republic
of the National Assembly of the Republic of Belarus on constitutional legality
in the Republic of Belarus in 2003 the Constitutional Court has generalised
the results of forming in the Republic of Belarus, on the grounds of adopted
in 1994 Constitution, of a democratic social state ruled by law, making, development
and strengthening of constitutional justice.
Adoption in 1994 of the Constitution was the important milestone in the development
of the constitutional processes in Belarus. The Constitution is a political
and legal basis for forming and development of social and legal State organization,
the main factor of law making and law applying processes. During ten years period
of time there have been created the wide legislative base for economic, political
and social transformations, securing the rights and freedoms of citizens, guarantees
of their realization, formed new legal system reflecting present-day achievements
of European legal culture.
The constitutional justice has become the reality, one of the component parts
of the constitutional principles of State organization. Decisions of the Constitutional
Court have been the contribution to strengthening the constitutional system,
realization of human rights and freedoms, as well as the real factor of improvement
of legal system, forming of new feeling for law and order, law applying practice.
The Constitutional Court is striving to both understanding genuine content of
the constitutional norms, principles and their direct effect in order the State
bodies and officials to bare responsibility for their activities, as well as
the citizens are responsible towards the State for the exercising their obligations
(Articles 2, 59 and other Articles of the Constitution).
In 2003 the scope of attention of the Constitutional Court has been securing
the rights and freedoms of citizens, as well as realization of the fundamental
constitutional principles. The Constitutional Court has adopted 36 Decisions
which contain the positions directed to securing the social rights as the right
to education, the right to social security and protection of the rights of invalids,
the right to health protection and accessibility of medical care.
The Constitutional Court in 2003, just like the previous years, on the grounds
of part one of Article 116, part four of Article 122, Article 137 of the Constitution
has also verified the constitutionality of the enforceable enactments of local
Councils of deputies, executive and administrative bodies.
By making analysis of the norms of the effective legislation in the sphere of
local taxation, the Constitutional Court has expressed for several times its
legal position concerning the fact that for the securing of the protection of
the constitutional rights and lawful interests of tax payers, as well as for
the purposes of pursuing in the territory of the Republic of Belarus of a unified
fiscal, tax, credit and currency policy (Article 132 of the Constitution) it
is necessary for the law maker to specify the exhaustive list of local taxes
and dues, which may be set by the local Councils of deputies in the relevant
territory. The Constitutional Court has also paid attention to the fact that
the parameters of the most important elements of local taxes and dues (payers,
objects of taxation, rates, procedure and terms for payment), within which the
local Councils of deputies should realize their exclusive powers to set the
local taxes and dues, should be also specified in the law. Legal positions of
the Constitutional Court have found its legal securing in the Law "On budget
of the Republic of Belarus for 2004".
On the basis of Decision of the Constitutional Court the Novopolotsk city Council
of deputies has repealed the local due for the right to delivery of hydrocarbon
raw materials for industry processing under supply giving conditions. The payers
of the due in questions have been returned from the local budget (in other due
budget payments) the money resources in sum of 652 m. of roubles. Pinsk city
Council of deputies has executed Decision of the Constitutional Court which
found to be at variance with the Constitution and the laws of the Republic of
Belarus, as well as to be null and void from the date of its adoption point
1 of the Provision on the local due from the users of infrastructure of the
city, and other norms of the Provision based on the given point. Taxpayers have
been returned the money resources in sum of 30023,6 thous. of roubles from the
relevant local budget.
The Constitutional Court has upheld successively the principles of fairness
and equality in the field of criminal law regulation, secured optimal realization
of democratic institutions of the criminal law in law applying practice by stimulating
its transition from the formed stereotypes to the new approaches which are fully
in line with the requirements of the Constitution and international legal acts.
In its Decisions the Constitutional Court, by adhering strictly to the principle
of direct effect of Article 60 of the Constitution, which guarantees everyone
the protection of his rights and freedoms by the competent, independent and
impartial court of law, shall carry out the policy on ensuring the constitutional
right of everyone to access to justice. The Constitutional Court underlines
that the norm in question as the norm of direct effect shall have supremacy
owing to Article 137 of Constitution and, therefore, the right to judicial protection
may not depend on its stipulation in by-constitutional acts.
Constitutional control shall cover all the branches of law and the spheres of
law applying activities. However, the Constitutional Court is not the single
State body, responsible for the constitutional legality in the State, for the
creation of the law and order, which is necessary for the full exercise of the
rights and liberties of an individual. Article 59 of the Constitution shall
oblige all the State bodies and officials to protect the rights and freedoms
of an individual and impose on them responsibility for their violations.
Summary:
The case "On the conformity to the Constitution of the Republic of Belarus,
Article 15 of the Law of the Republic of Belarus "On public health protection"
and Provision on licensing of medical activities, as well as Provision on licensing
of pharmaceutical activities approved by Resolution of the Council of Ministers
of the Republic of Belarus of 20 October 2003 No. 1378" has been brought
by the Constitutional Court of 8 December 2003 as a result of the petition of
the House of Representatives of the National Assembly of the Republic of Belarus
concerning the issue on verification of the constitutionality of the specified
Provisions envisaging the procedure and the conditions of issue of special permissions
(licenses) for carrying out medical and pharmaceutical activities, in particular,
those which shall set more higher requirements towards the professional level
of the heads of organizations of public health protection (heads of organizational
departments) who carry out directly medical or pharmaceutical activities, individual
entrepreneurs, as well as the workers they engaged.
Based on the essence of the proposals made by the House of Representatives,
the Constitutional Court in accordance with Article 11 of the Law "On the
Constitutional Court of the Republic of Belarus" has made verification
of the constitutionality of the norms of point 9 of the Provision on licensing
of medical activities, points 9 and 10 of the Provision on licensing of pharmaceutical
activities.
Having examined the materials of the case, the Constitutional Court held that
the norms of Article 15 of the Law "On public health protection" shall
have no reference to the issues of licensing of medical and pharmaceutical activities
as those having regard to special regulation and specify the conditions and
requirements for securing the right of persons to deal with medical and pharmaceutical
activities as a physician or as a pharmaceutical chemist, but not as the heads
of legal entities (heads of organizational departments) and individual entrepreneurs
who organize the realization of the types of the activities which are subject
to licensing and bear the absolute responsibility for the due medical or pharmaceutical
service.
The Court has emphasized that the physicians and pharmaceutical chemists under
Article 41 of the Constitution shall realize their right to work, i.e. the right
to choose the line of business following one's vocation, abilities, education,
professional training, as well as taking into consideration social needs, by
way of concluding of labour and civil legal contracts with the relevant economic
entities of both state and private forms of ownership which should organize
carrying out medical and pharmaceutical activities in accordance with the requirements
and the standards of the state.
In addition, the Constitutional Court paid attention to the fact that before
the enforcement of new requirements towards the applicants for licenses and
license-holders for carrying out medical and pharmaceutical activities it was
effective the Provision on the procedure of issue for the economic entities
(legal persons and entrepreneurs without making a legal entity) of special permissions
(licenses) for carrying out the types of activities which are under the authority
of the Ministry of Public Health approved by Order of the Ministry of Public
Health of the Republic of Belarus of 15 January 1998 No. 15, according to which
the issue of licenses for medical practice, wholesale and retail of the medicines
and herbs (sub-items 2.3.2 and 2.5 of point 2) has been exercised within the
lower extent of the requirements and conditions made on the applicants of licenses
(license-holders).
In accordance with previously effective legislation obtaining by the economic
entity of the license for carrying out medical or pharmaceutical activities
has not been laid with the presence or absence of the head of organization (head
of organizational department), individual entrepreneur, as well as of the engaged
by them workers of the first and higher qualified category.
Based on the aforementioned the Constitutional Court found that by restricting
of already acquired rights, it is necessary to make special consideration for
the principles of fairness, proportionality, maximum respect to private and
public interests. Such an approach shall promote the formation of trust of the
citizens to the state. The most important principle of legal regulation of relations
in the state ruled by law, and the Republic of Belarus has been proclaimed as
such, should be predicting, reasonable stability of the normative regulation
which shall be based on combination of the interests of the state and the citizens,
as well as the economic entities.
Therefore, the Constitutional Court held it lawful to make additional requirements
towards new persons who wish to obtain licenses for carrying out medical or
pharmaceutical activities by way of creation of a legal entity or by way of
work as an individual entrepreneur.
As for the economic entities of state and private forms of ownership who obtained
the licenses for carrying out medical or pharmaceutical activities on the basis
of previously effective legislation, the Constitutional Court deems that for
elimination from liquidation (suspension of activities) of economic entities
for the reasons they have not anticipated at the moment of their creation, for
the heads of those organizations of public health, for other persons specified
in point 9 of the Provision on licensing medical activities and in points 9,
10 of the Provision on licensing of pharmaceutical activities there shall be
given the possibility to take part in attestation for obtaining the relevant
category taking into account the length of their service, as well as other consideration-worthy
circumstances within the time period after the adoption of the present Judgment
which is sufficient for the solution of the given issues.
As regards the specified persons the authorized state bodies shall be entitled
to mitigate the requirements stipulated by the Provision on the procedure of
awarding qualifying categories for the medical and pharmaceutical workers approved
by Resolution of the Ministry of Public Health of the Republic of Belarus of
1 July 2002 No. 45 in part of awarding qualifying categories out of the established
sequence, taking into account the length of the service, level of professional
training and other circumstances, including also the fact of creation by them
of economic entities which had carry out medical or pharmaceutical activities
on the basis of the licences issued previously by the state bodies.
Summary:
The given case had been brought on the initiative of the House of Representatives
of the National Assembly of the Republic of Belarus which proposed the Constitutional
Court to produce the Judgment on the conformity between the Constitution of
the Republic of Belarus, the international treaties of the Republic of Belarus
and the provisions of the Criminal Code of the Republic of Belarus stipulating
as a punishment the death penalty, and considering, that the specified provisions
of the Criminal Code are at variance with Articles 2, 21 and 25 of the Constitution
of the Republic of Belarus and contrary to the international principles and
standards establishing unconditional, without any exceptions, right of everyone
to life and directing all the states towards the necessity of refusal of the
punishment as the death penalty, towards their aspiration to secure the most
important human right in question.
The Constitutional Court, having studied the dynamics of development of the
criminal legislation of the Republic of Belarus regulating the application of
the death penalty, the practice of application of this punishment, experience
of other states and, first of all, the countries of the European region, held
that the Republic of Belarus has come nearer to the solution of the issue on
the abolition of the death penalty or on declaration of moratorium on its application
in accordance with the international approaches and standards. The joining by
the Republic of Belarus of the Council of Europe and signing, first of all,
the European Convention for the Protection of Human Rights and Fundamental Freedoms
of 1950, Protocol No. 6 concerning abolition of the death penalty (1983) and
Protocol No.13 concerning abolition of the death penalty in all circumstances
(2002) will contribute unconditional adoption of the decision on the abolition
of the penalty in question.
The Constitutional Court has also paid attention to the fact that at present
there is no factual fulfillment of the Recommendations of the House of Representatives
of the National Assembly adopted of 13 June 2002 on the results of the Parliamentary
hearings on the subject of "Political and legal problems of the abolition
of the death penalty in the Republic of Belarus", which were addressed
to the Council of Minister, the Ministry of Internal Affairs, the Ministry of
Education, the Ministry of Justice, the Supreme Court, the Ministry of Information
for the purposes of creation of the conditions for the solution of the issue
on declaration of moratorium on application of the death penalty. The Constitutional
Court has also emphasized that the tendency to the reduction of extra grave
crimes connected with intentional infringement on the human life, which had
been outlined only in 2003, should be secured by the efforts of the law enforcement
bodies.
The Constitutional Court, having found part three of Article 24 of the Constitution
of the Republic of Belarus, which has enshrined the possibility of application
of the death penalty as the exceptional measure of punishment only until its
abolition, as the legal ground to take the decision on declaration of moratorium
on the application of the death penalty or complete abolition of the punishment
in question, as well as taking into account the mentioned above circumstances
and the fact that the Second Optional Protocol to the International Covenant
on Civil and Political Rights has not been ratified by the Republic of Belarus,
there have not been solved the issue of its Full Membership in the Council of
Europe, and due to that there have not been signed and ratified the European
Convention for the Protection of Human Rights and Fundamental Freedoms, as well
as the relevant Protocols thereto, and that would stipulate by force of Article
8 and 116 of the Constitution of the Republic of Belarus the supremacy of the
specified international acts in the system of the national law, underlined that
the specified issue shall be referred to the competence of the Head of the State
and of the Parliament.
Problems, opinions, comments
On the basis of a comparative analysis of the provisions of the effective Constitution
of the Republic of Belarus, as well as of the previous Constitutions, the article
specifies the traces of the constitutional building in the Belarusian State.
Author considers the Constitution of the Republic of Belarus as the act of direct
effect for those who apply the law (state bodies, officials and citizens). Special
attention is given the system nature of the Basic Law, which shall determine
the organization and interaction of the powerful structures, the state in general
and the system of law. The Constitution is characterized as the Basic Law of
the State, which is democratic in its content, and only with strengthening of
the guiding by its text, it is possible to achieve the effectiveness of the
legal system. Author reveals the content of a number of constitutional principles,
as well as the role of the state bodies, including the Constitutional Court,
on securing the supremacy of the Constitution.
On the grounds of analysis of the Constitution and the legislation, messages,
judgments and decisions of the Constitutional Court of the Republic of Belarus
article studies the issues of realization and restriction of the constitutional
human rights and freedoms. Author proposes recommendations concerning further
strengthening the guarantees of the constitutional human rights and freedoms.
Article successively follows the idea of the fact that the justice should be
accessible, and judicial rulings lawful, well-grounded and fair. Author considers
in details Judgment of the Constitutional Court of the Republic of Belarus of
30 January 2004, which found to be constitutional the provisions of the Civil
Code stipulating that foreign currency and currency valuables may be subject
of the loan contract in the territory of Belarus. Due to that there is a thorough
analysis of previously existed practice with the use of different approaches
while examining the category of cases in question. Author has come to the conclusion
that the specified Judgment of the Constitutional Court shall improve realization
of the constitutional rights to judicial protection.
From history of development of constitutionalism in Belarus
M.Ph. Chudakov. Constitutional process in the Republic of Belarus (1990 - 1994).
Creation of the fifth Belarusian Constitution.
Author of the material is one of the members of the Constitutional commission
on elaboration of the fifth Belarusian Constitution shall study on the background
of the description of political events at the beginning of the nineties in the
former USSR the constitutional process in the Republic of Belarus in 1990-1994,
from the moment of organization of the Constitutional commission by Resolution
of the Supreme Council of BSSR of 22 June 1990 till adoption of the Basic Law
of 15 March 1994.
There is a rather detailed description of a number of aspects of near four-year
work at the draft text of the Constitution, which had become the foremost for
the Belarusian people and further progressive development of the Republic of
Belarus as an independent member of the international community.
International relations of the Constitutional Court
K.I. Kenik. International UniDem Campus Seminar "The civil servant's guide
to the Council of Europe and the in European Commission" (Strasbourg, France,
February 16 - 18, 2004)
Dates, events, facts
Jubilee congratulations
Materials about celebration of  eputy Chairman of the Constitutional Court
of the Republic of Belarus, Candidate of Legal Sciences, Honoured Lawyer of
the Republic of Belarus Mr Alexandr V. Maryskin on the occasion of his 50th
jubilee.
Scientific Conference dedicated to 10th anniversary of the Constitution (3
March 2004, Minsk)
Information about the arrangement organized and held on the initiative of the
constitutional law chair of the Law Faculty of Belarusian State University.
Presentation of novelties of legal literature
At the traditional presentation of the novelties of the legal literature there
have been introduced the books issued with the participation of the judges and
the specialists of the constitutional Court in the key publishing houses of
the Republic "Vyshejshaya shkola", "Amalfeja", "Dikta",
"Knizhny Dom".
|
|
© Constitutional Court of the Republic of Belarus, http://ncpi.gov.by/constsud/eng/ |