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SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of October 21, 2003 No. P-160/2003

ABOUT THE BASES OF REVIEW OF SENTENCES ACCORDING TO THE RULE ABOUT RETROACTIVE EFFECT OF THE PENAL STATUTE

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., Filipchik R. I., G.B. Cone, Shuklina V. Z., having considered based on part one of article 116 of the Constitution of the Republic of Belarus addresses of persons condemned to imprisonment on the issue of non-use to them of the rule about retroactive effect of the penal statute, established the following.

By part six of article 104 of the Constitution of the Republic of Belarus it is fixed that the law has no retroactive force, except as specified, when it mitigates or cancels responsibility of citizens.

It is provided in Item 1 of article 15 of the International Covenant on Civil and Political Rights that if after crime execution the law establishes lighter punishment, operation of this law extends to this criminal.

The criminal code of the Republic of Belarus (further - UK) is based on the Constitution of the Republic of Belarus and the conventional principles and rules of international law (part three of article 1 UK).

According to part two of article 9 UK the law eliminating crime of act, commuting penalty or otherwise improving provision of person who committed crime has retroactive force, that is extends to persons who made the corresponding act to the introduction of such law in force including on the persons serving sentence or who served sentence, but having criminal record. If the new penal statute mitigates punishability of act for which person serves sentence, the court imposes penalty according to the sanction of the new penal statute, being guided by article 62 UK.

Thus, according to article 9 UK softer the penal statute is recognized cases if it eliminates crime of act, mitigates punishability of act or otherwise improves provision of person who committed crime.

According to article 5 of the Law of July 18, 2000. "About enforcement of the Criminal code of the Republic of Belarus" sentences on which persons condemned under the Criminal code of the Republic of Belarus of 1960 did not serve sentence are subject to revision when the penalty imposed by court is more strict, than is established by upper limit of the sanction of the relevant article of the Criminal Code.

According to article 16 of the specified Law "sentences, determinations or resolutions of courts are subject to revision in cases when the Criminal code of the Republic of Belarus otherwise, than it is provided by this Law, improves provision of persons who committed crimes including the persons serving sentence or who served sentence, but having criminal record".

Item 2 of article 4 of the Law of July 22, 2003. "About entering of amendments and changes into Criminal and Criminal procedure codes of the Republic of Belarus" it is provided that "sentences on which the condemned persons did not serve sentence are subject to revision when the penalty imposed by court is more strict, than it is established by upper limit of the sanction of the relevant article of the Criminal code of the Republic of Belarus in edition of this Law, and also in cases when regulations of this Law otherwise improve provision of persons who committed crimes including the persons who served sentence, but having criminal record".

The constitutional court pays attention that in practice owing to some discrepancy of articles 5 and 16 of the Law of July 18, 2000 and provisions of Item 2 of article 4 of the Law of July 22, 2003, and also in view of absence in UK of determination of the law mitigating punishability of act restriction of application of the rule about retroactive effect of the penal statute takes place. Mitigation of punishability of act is recognized only if the penalty imposed earlier is more strict, than is established by upper limit of the sanction of the relevant article of the Criminal Code changed by the new law. In such direction the court practice which is based including on the explanations containing in recommendations of judicial board about criminal cases of the Supreme Court about review of sentences according to article 9 UK based on provisions of the Law of the Republic of Belarus "About entering of amendments and changes into Criminal and Criminal procedure codes of the Republic of Belarus" develops. At the same time the Constitutional Court notes that such explanations contain not in the resolution of the Plenum of the Supreme Court.

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