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SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of December 24, 2002 No. P-152/2002

About the constitutional guarantees of the right of persons condemned to imprisonment, for judicial appeal of the disciplinary measures applied to them

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., vice-chairman Maryskin A. V., Boyko T. S. judges., Podgrusha V. V., Sarkisovoy E.A., Tikovenko A. G., G.B. Cone, Shuklina V. Z., having considered based on part one of article 116 of the Constitution of the Republic of Belarus numerous addresses of persons condemned to imprisonment in connection with refusals of courts to consider their claims to application to them of disciplinary measures, established the following.

In the addresses convicts to imprisonment specify that courts refuse consideration of their claims to application to them administration of correctional facilities of disciplinary measures, motivating it with absence in the legislation of the regulations regulating procedure for acceptance and consideration of such claims.

The constitutional court passed twice decisions in which the constitutional right of convicts on judicial appeal of the disciplinary measures applied to them is confirmed. In spite of the fact that in the criminal procedure and criminal and executive legislation there are no regulations regulating procedure for acceptance and consideration by courts of the specified claims of convicts in the Code of civil procedure of the Republic of Belarus there is whole chapter providing procedure for appeal of actions of the officials violating the rights of citizens.

Courts shall consider such claims owing to requirements of the Constitution of the Republic of Belarus and for the purpose of its steady observance. According to article 60 of the Constitution protection of its rights and freedoms by competent, independent and just trial in the terms determined by the law is guaranteed to everyone. Article 137 of the Constitution sets its highest legal force. In case of discrepancy of the law, the decree or the decree with the Constitution the Constitution is effective. Article 59 of the Constitution obliges the state to take all measures available to it for creation of the internal and international procedure necessary for complete implementation of the rights and freedoms of the citizens of the Republic of Belarus provided by the Constitution. State bodies, official and other persons to whom execution of the state functions is entrusted shall take within the competence necessary measures for implementation and protection of the rights and personal freedoms. These bodies and persons bear responsibility for the actions violating the rights and personal freedoms.

According to Article 3 of the Penitentiary code of the Republic of Belarus the criminal and executive legislation of the Republic of Belarus is based on the Constitution of the Republic of Belarus, the conventional principles and rules of international law, international treaties of the Republic of Belarus relating to execution of the punishment and the treatment of convicts, and in case of discrepancy of the criminal and executive legislation with international treaties rules of the international treaty shall be applied directly.

The right to judicial protection is provided not only by the Constitution of the Republic of Belarus, but also the international acts, including the International Covenant on Civil and Political Rights ratified by the Republic of Belarus (Article 3). Besides, in Article 10 of the Penitentiary code of the Republic of Belarus the right of convicts to the address with claims as in administration of body or the organization performing punishment and other measures of criminal liability, prosecutor's office, other bodies and in court is directly affirmed.

Article 6 of the Code of civil procedure of the Republic of Belarus, affirming the right to the request for judicial protection, determines that the interested person has the right to take a legal action in accordance with the established procedure behind protection of the violated or challenged right or the interest protected by the law. The refusal in judicial protection based on absence, incompleteness, discrepancy, regulation ambiguity is not allowed.

In many cases convicts to imprisonment exercise the right to appeal to the court on housing, heritable, matrimonial and other questions already now. At the same time the failure to provide of the disciplinary measures applied to them condemned the rights to judicial check can deprive of them the right to application of amnesty, other types of mitigation of punishment or release from it.

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