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 1994.
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:
Decision of the Constitutional Court of the Republic of Belarus of 15 April
2004 No. D-172/2004 "On constitutionality of Provision on procedure of
reception of citizens in Minsk city executive committee approved by Decision
of Minsk city executive committee of 1 October 2002 No. 1430" has been
considered on the grounds of part one of Article 116 and part four of Article
122 of the Constitution of the Republic of Belarus as a result of the motion
of citizen A.M. Shirko challenged certain norms of the Provision on procedure
of reception of citizens in Minsk city executive committee approved by Decision
of Minsk city executive committee of 1 October 2002 No. 1430.
Point 7 of the given Provision shall specify, in particular, that citizens shall
be put on the list for the reception by the Chairperson of city executive committee
on the grounds of written application with the issues referred to his competence,
if their requirements are lawful and had not been solved by the relevant officials.
As it follows from the reply of Minsk city executive committee to the request
of the Constitutional Court "for the solution of the issue of making a
list of appointments to the Chairperson of city executive committee a citizen
is proposing to put his/her question in writing with specification of new arguments
and facts, i.e. to motivate the lawfulness of his/her appeal".
The Constitutional Court, taking into account the provisions of the Constitution,
Laws "On appeals of citizens", "On local government and self-government",
other enforceable enactments, has emphasized that stipulation as the condition
of personal reception of citizens by the Chairperson of Minsk city executive
committee of the lawfulness of the requirements containing in the appeals of
the citizens shall not be in conformity with the provisions of parts one and
three of Article 5 of the Law. Motivation of lawfulness shall not be the obligation
of a citizen. This should be determined by the bodies and officials which and
who are entrusted by the Law to examine the appeal and to give the motivated
answer. For the determination of the lawfulness (legality) of appeals of the
citizens the Law shall fix the relevant terms (15 days, 1 month, 2 months).
That shall signify that the legality of an appeal should be determined not on
the stage of preliminary making a list of appointments for the personal reception,
but in the process of its examination.
The obligation of the civil servants within their officials powers to examine
timely and objectively the appeals of citizens and to solve them in accordance
with the procedure specified by the legislation, by Article 21 of the Law "On
civil service in the Republic of Belarus" is referred to their basic duties.
The Constitutional Court has held that the Provision on the procedure of reception
of citizens in Minsk city executive committee approved by Decision of Minsk
city executive committee of 1 October 2002 No. 1430 in part that practically
shall exclude the possibility of oral appeal of the citizens at personal reception,
as well as shall stipulate the necessity of motivation by the citizens of the
lawfulness of one's requirements to be at variance with parts one, three and
four of Article 5 of the Law of the Republic of Belarus "On appeals of
citizens".
Commentary:
In the fulfillment of the above specified Decision of the Constitutional Court of the Republic of Belarus Minsk city executive committee by its Decision of 7 may 2004 No. 933 has made the relevant alterations and addenda into the Provision on procedure of reception of citizens in Minsk city executive committee: point 7 has been excluded; point 8 has been stated in another wording: "In case of repeated appeal with the same question, in the presence of exhaustive replies and materials of checks as regards the previous appeals and in the presence of new arguments or newly appeared circumstances, a citizen may be refused in consideration of an appeal".
Problems, opinions, comments
On the basis of analysis of decisions adopted recently by the Constitutional Court under consideration is its role in having control over the fulfillment of the stipulated in the Basic Law provision on variety of the forms of ownership, when the state is vested with the obligation to grant everyone equal rights for carrying out economic and other activities except for those prohibited by the law, to guarantee equal protection and equal conditions for the activities of economic entities.
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 concrete examples confirm that the activities of the Constitutional Court are directed to realization of the principle that the state should exercise regulation of economic activities in the interests of an individual and society, to secure the direction and coordination of the state and private economic activities for the social purposes.
Article studies historical and legal aspects of beginning and development of
the right to judicial protection in the process of evolution of the judicial
power in Belarus.
Author gives analysis for the origin of the notions “judicial power”, “court
of law”, “justice”, elucidates their role in the development of the right to
judicial protection. Author emphasizes that the idea on separation of the judicial
power as an unique branch of power had been emerged for the first time in 16
century.
According to the statement of the author, the judiciary shall be taken both
in the context with the ideas of the state ruled by law and, first of all, in
the context of administering justice which makes it possible for the citizens
to have peaceful settlement, i.e. to find truth through the court of law.
Article deals with the issues of protection of constitutional rights and freedoms
of citizens by the bodies of the Procurator’s office equally with other state
bodies, in particular — by the courts of law.
With the help of statistical data for the previous five years the author reveals
the most important types of activities of the Procurator’s office on supervision
over strict and unified exercise of the legislation such as inspections and
examination of the complaints, as well as the relevant forms of reaction — making
of rulings and protests.
Author makes an attempt to try to understand the state power as a legal category.
Article contains the analysis of various approaches to determination the power
on the whole and the state power in particular, as well as reveals multi aspect
nature and heterogeneity of legal nature of the notion of state power itself.
On the basis of comparative analysis of general characteristics of the state
body and the court of law, norms of legislation the author comes to the conclusion
on belonging of the courts of law to the bodies of the state power, on their
special place and significance in the state system of the Republic of Belarus.
Article discloses the legal nature of administrative and legal regimes as a
variety of legal regimes. Author makes an analysis of different approaches to
the definition of the notion “legal regime” and “administrative and legal regimes”,
as well as their classification, reveals the content of legal, including administrative
and legal regimes as a social and legal phenomenon.
Administrative and legal regimes are presented as a many-sided legal phenomenon
consisting of specific complex methods and means for regulation and expressing
in the specified combination of legal means, which shall create desirable social
condition and concrete degree of favourable or unfavourable conditions for the
satisfaction of the interests of the subject of law.
Article gives profound analysis of decisions of the Constitutional Court of the Republic of Belarus that involve the issues of economic insolvency (bankruptcy).
Author emphasizes that the specified decisions, as decisions referring to other spheres of legal regulation, as a whole find their positive interpretation, but the state bodies and officials fail to execute them properly and regularly, and that makes it actual the problem of efficient and strict realization of decisions of the Constitutional Court.
The present paper is devoted to the problems of constitutional and legislative
provision of the right to freedom of demonstrations in the Republic of Belarus
and foreign countries. An attempt is made to reveal the essence and to show
the social significance of this important political freedom. In the article
a great attention is drawn to the research and analysis of the mechanism of
the realization of the right to freedom of demonstrations in our republic. The
legal practice of different countries in this sphere is described in short.
Article concerns the actual problem of applied and theoretical meaning — the
problem of retroactivity of the criminal law, which shall mitigate the penalty.
It is dedicated to the analysis of the issue about the circle of sentences liable
to revision due to legal enforcement of the criminal law, which was subject
to special examination by the Constitutional Court of the Republic of Belarus.
Guiding by theoretical provisions of the science of the criminal law, by the
provisions of the legislation of the Republic of Belarus, as well as analysis
of solution of the given issue in a number of foreign states (Bulgaria, France,
China, Holland, Japan, Switzerland, Spain, Poland, Ukraine, Russia), the author
proposes interpretation of part two of Article 9 of the Criminal Code which
shall spread the rule of retroactivity of the criminal law through all the instances
of mitigation by a new law of liability of a person who committed a crime.
On the grounds of analysis of the legislation and judicial practice on labour
disputes under consideration are the issues of a new for Belarusian jurisprudence
institute — compensation of a moral damage.
Author formulates the proposal on expediency of stipulation in the labour law
of the principle of presumption of moral damage.
Fundamental human rights and freedoms in international law and their protection
Case-law of the European Court
O.B. Kouznetzov. Constitutional complaint as the condition of acceptability
of appeal to the European Court on Human Rights
International relations of the Constitutional Court of the Republic of Belarus
E.A. Sarkisova. European standards of electoral law in the contemporary constitutionalism
A.V. Karavai, V.I. Moroz. International Seminars organized by the Venice Commission of the Council of Europe
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