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
Official Materials and Decisions
of the Constitutional Court
of the Republic of Belarus
Summary:
Under Article 60 of the Constitution to defend
their rights, liberties, honour and dignity citizens shall be entitled in accordance
with the law to recover, through the courts, both property damage and financial
compensation for moral injury.
Civil legislation of the Republic of Belarus
contains legal norms regulating relations as regards recovery the moral injury
and specification by the court of the amount of its compensation. Injury caused
to a person or to the property of a citizen shall be subject to compensation
in full by a person who caused injury. Grounds and the amount of compensation
for moral injury caused to a citizen shall be specified by the norms of the
Civil Code (Chapter 58, Articles 152, 968). Compensation for moral injury shall
be carrying out in money form, the rate of the compensation shall be fixed by
the court depending on the character of the caused to the victim physical and
moral suffering, as well as on the guiltiness degree of the inflicter of the
injury in instances when the guilt is the ground for injury compensation. By
fixing the rate of compensation for the injury, there must be taken into account
the requirements of reasonableness and fairness.
The Law "On income tax from natural persons"
for specification of exemption of sums of compensation for moral injury from
taxation has the multi-valued wording "within the limits of rates specified
by the legislation of the Republic of Belarus".
Study of law enforcement practice signifies
that the sums of financial compensation for moral injury with the exception
of the listed directly in the given Law instances of compensation for the injury
in question are considered by the tax bodies as the subject to taxation as "other
income". The Constitutional Court pointed out that the existing practice,
where there are sums of compensation for moral injury which are subject to taxation,
and there are other sums which are not subject thereto, is not fully grounded
on the provisions of the Law "On income tax from natural persons",
because the distinction in taxation of the sums of compensation for moral injury
depending on circumstances which were the reasons of its compensation shall
not follow directly from the norms of the Law in question.
The Constitutional Court pays attention to the
fact that the purpose of the compensation for moral injury is not a profit making
one, but shall be the compensation for the moral and physical suffering caused.
Taking into account the Message of the Constitutional
Court of the Republic of Belarus "On constitutional legality, 2004"
which noted that the high level of quality of the legislation shall presuppose
the absence in it of any ambiguity and that is the necessary condition of unique
understanding of legal norms and their practical application, the Constitutional
Court has proposed the House of Representatives of the National Assembly to
take the measures on improvement of the norms of the Law "On income tax
from natural persons" which regulate taxation of compensation for moral
injury and practice of their application by way of interpretation of the given
Law or making in it alterations for exclusion of multi-valued understanding
and application of the specified norms for the purposes of more full protection
of the rights of citizens.
Summary:
In its Decision the Constitutional Court has
once again paid attention to the fact that the persons who committed crimes
before the date of enforcement of the law on amnesty and the convicts before
or during the execution of this law have already acquired the right to amnesty,
which may not be restricted by the fact that afterwards the verdicts delivered
with respect to them have become the subject to reconsideration according to
the procedure of cassation or supervision. Therefore, if repeated verdicts are
delivering after expiration of the time period prescribed for the execution
of the law on amnesty, then this circumstance must not exert influence on application
to the persons in question of amnesty as reduction of the fixed by the court
term of punishment for one year.
The Constitutional Court has proposed the Supreme
Court of the Republic of Belarus and the Procurator's Office of the Republic
of Belarus to secure unique practice in the specified instances.
Citizen lodged an appeal with the Constitutional Court
Replies to the appeals of citizens to the Constitutional
Court
Scientific information
Article points out and makes characteristics
of constitutional principles and guarantees of realization of the right to judicial
protection in the Republic of Belarus.
Author emphasizes that enhancing of authority
of the judiciary, role of courts in protection of rights, freedoms and lawful
interests of a human being and the citizen is connected indissolubly with proclamation
and realization of democratic principles of justice, which serve fulfillment
the tasks set before the court. For more full realization of constitutional
principles and guarantees of securing judicial protection, author motivates
the necessity of giving the court (judges) the right to appeal directly to the
Constitutional Court with the proposal (request) on verification of constitutionality
of an enforceable enactment, which was or is subject to application by examining
the concrete case under Article 112 of the Constitution.
Author made an attempt to specify generally
the legal forms of securing solution of tasks in the field of harmonization
and unification of legislation of Belarus and Russia in the light of realization
of provisions of Treaty on Creation of Union State (1999).
Author considers briefly the influence of international
legal norms and international standards in the field of parliamentarism on the
development of Russian legislation. Article emphasizes that the Constitutional
Court of Russian Federation while forming its legal positions is guiding by
universally acknowledged principles and norms of international law and they
shall be subject to application by the courts of common jurisdiction.
This article considers a number of changes typical
for the information society that, from the author's point of view, shall significantly
influence on the theory of law and legal regulation of social relations.
The author refers the following to such changes:
appearance of virtual legal relations and virtual entities and subjects of law;
appearance of new features of legal relations (supranational character); interstate
unification of legal information resources; adoption of intergovernmental organizations'
documents aimed at solving the matters of information society; possibility to
reconsider in the future such terms as "legal provision", "legislation
system", "code of law"; the need in theoretical review of interrelations
of informational essence of law, cybernetic principles of management, legal
sociology, legal psychology, legal informatics and legal informatizations, etc.
The mentioned changes are not indisputable or
final. The article is a kind of invitation for all interested to comprehensively
consider the changes that shall take place in the legal sphere under the conditions
of building the information society and introduction of information technologies
into the legal sphere.
Article considers the meaning of accounting
of the system of social values in legal system, its influence on the processes
of law creation and law application.
Author emphasizes the actual for the Republic
of Belarus problem of choice of the type of the system of social values on which
the legal system must be built up. The problem in question has special significance
in the process of globalization which shall intensify the contradictions of
legal systems based on different systems of social values.
Specification of the system of social values
which are of a determinative significance for forming of legal system requires
new integrated approaches, where within the framework of social regulation there
must be strengthened the role of other than law social regulators and, first
of all, the morality.
Article specifies that the rights and freedoms
of citizens shall have both universal nature and are in interdependence to each
other.
On the basis of analysis of legislation of the
Republic of Belarus the author considers the link between the freedom of movement
with the right
of non-interference in private life, electoral right, right to labour, right
to medical care, right to housing.
Article contains proposals concerning improvement
of legislation regulating relations in the given sphere.
Article specifies that in spite of the fact
of essential level of research of the given issue, as well as practice of holding
of elections in our state, it is still actual examination of certain aspects
of realization of principles of electoral law. Moreover, the principles of general
common nature, equality, freely participation, secret ballot are also universal
while realizing other forms of direct democracy. Therefore, the author considers
certain problems related to realization by the electorate of the right to participate
in elections. For making reasons the author used the provisions of Electoral
Code of the Republic of Belarus, acts of Central Commission on Elections and
Holding Republican Referenda, as well as electoral legislation of foreign states.
Article studies the legal status of local Councils
of deputies as subjects of civil and legal relations. Author emphasizes that
they are also bearers of public activities, they shall carry out activities
in the interests of the population of the relevant locality.
Article contains specific restrictions of the
activities of the Councils in the given sphere. On the grounds of international
experience author forms the proposals on improvement of the civil legislation.
Article is devoted to research of the basic rights
in the field of collective contract regulation (the right to conducting collective
bargaining and the right to conclusion of collective contracts and agreements)
and principles of collective bargaining. The conformity of the national legislation
to international labour standards in this area is analyzed.
Article pays attention to social and economic
right of women to work. Author makes analysis of constitutional norm, practice
of its application guiding by sociological study and statistical data. Article
emphasizes that the right to labour fixed in the Constitution of the Republic
of Belarus is symmetrical on gender level, and only on the level of realization
of this right it takes place breakage of the universal standard — equality.
Belarusian land legislation has to be based on
the constitutional provisions. The purpose of this article is to show some legal
problems of land law regulation and to offer the ways for their solving according
to the Constitution of the Republic of Belarus and needs of the modern Belarusian
society.
Medical service is a new definition for the Belarusian
legislature. The legal and scientific definitions of medical service are given
in the article, its characteristics are represented. The author separates the
definitions of medical care, medical service and medical operation, explaining
the difference between them.
Dates, events, facts
Mrs. Anna P. Chichina - 55 Anniversary
Congratulations with Jubilee (70 Anniversary
— Mr. G.B. Shishko)
News of higher education science
Development and Perspectives of National Legal
System in the Context of European Integration Processes (materials of Conference
at Belarusian State University on 16—17 June 2005)
International relations of the Constitutional Court of the Republic of Belarus
G.A. Vasilevich. Science and practice in field of constitutional law is directed to protection of citizens
V.I. Zhishkevich. On visit of Mr. V.D. Zorkin, Chairman of the Constitutional
Court of the Russian Federation
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