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SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of December 1, 2003 No. P-165/2003

About providing the right to submission of the claim according to the procedure of supervision by persons condemned to imprisonment

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., Boyko T. S. judges., Kenik K. I, Podgrushi V. V., Sarkisova 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 impossibility of implementation of the right to appeal of sentences by them in supervising procedure due to the lack of funds for payment of the state fee, established the following.

Article 2 of the Law of the Republic of Belarus of January 10, 1992. "About the state fee" (with subsequent changes and amendments) subjects to taxation are established by duty among which cassation and supervising claims to court decrees are called.

Rates of the state fee are established by Council of Ministers of the Republic of Belarus. According to subitem 1.12 of Item of 1 appendix to the resolution of Council of Ministers of the Republic of Belarus of March 26, 2003 No. 402 "About rates of the state fee and provision of additional benefits on its payment" (with changes and amendments) the rate of the state fee from supervising claims (primary and repeated) on sentences of courts, on resolutions of Trial Courts, cassation determinations and supervising resolutions of superior courts on criminal cases constitutes one basic size.

According to the paragraph the fifth Item 2 of the specified resolution of Council of Ministers of March 26, 2003 No. 402 from payment of the state fee exempts lawyers for giving in courts and bodies of prosecutor's office of supervising claims (primary and repeated) on sentences of courts regarding condemnation or justification. To imprisonment such rule does not extend to convicts.

In the addresses to the Constitutional Court the convicts serving custodial sanction complain that owing to lack of money they cannot exercise right of defense including on submission of the claim according to the procedure of supervision to the sentences pronounced concerning them. At the same time one of the reasons of material insolvency they call impossibility of providing them paid work in the conditions of correctional facilities.

The constitutional court considers that specified persons have the right to release them from payment of the state fee in case of submission of claims by them according to the procedure of supervision, proceeding from the following.

Item 5 of article 14 of the International Covenant on Civil and Political Rights provides that everyone who is condemned for any crime has the right to that his condemnation and sentence were reviewed by higher degree of jurisdiction according to the law.

Article 60 of the Constitution of the Republic of Belarus to everyone guarantees protection of its rights and freedoms by competent, independent and just trial in the terms determined by the law.

According to Article 404 of the Code of penal procedure of the Republic of Belarus (further - the Code of Criminal Procedure) the sentence which took legal effect, determination, the court order can be reviewed according to the procedure of supervision. By article 408 Code of Criminal Procedure the convict is granted the address right according to the procedure of supervision with the claim on the bases, the stipulated in Article 388 Codes of Criminal Procedure (unilaterality or incompleteness of court investigation; discrepancy of the conclusions of court stated in sentence, to the actual facts of the case; fundamental breach of the criminal procedure law; wrong application of the penal statute; discrepancy of the penalty of weight of crime and the identity of the person accused imposed by court).

At the same time the Constitutional Court notes importance of the complaint made in supervising procedure as guarantees of protection of the rights and interests of convicts and as cures of miscarriages of justice.

Having studied precepts of law regarding establishment of the state fee in case of submission of claims according to the procedure of supervision and release from it in the established cases, the Constitutional Court considers that the legislation in this part does not contradict the Constitution and does not interfere with realization of the right of convicts to judicial protection.

According to article 5 of the Law "About the State Fee" the right to establish additional benefits on payment of the state fee is provided to Council of Ministers of the Republic of Belarus. Besides, such right is granted regional and Minsk city to Councils of deputies or according to their order to executive and administrative organs (on payment of the state fee enlisted in the local budget) for certain payers or groups of payers, and to regional and city councils of deputies or according to their order to executive and administrative organs - for certain payers. According to part three of article 5 of the specified Law the right to establishment of additional benefits regarding payment of the state fee on legal cases for certain citizens, proceeding from their property status, also courts (judges) have.

According to the Constitutional Court, the questions which are brought up in addresses of convicts belong to problem of their practical permission to a large extent.

As showed practice studying, condemned, not having means for payment of the state fee when bringing of claims by them according to the procedure of supervision, address to relevant organs in the place of serving sentence with requests for release them from payment of such duty. According to the data which are available in the Constitutional Court, the majority of the submitted applications is granted. Besides, in correctional facilities the system of rendering financial support through the public funds which are available for them which in the presence of the corresponding bases and money also give help to convicts including for payment of the state fee by them functions. Therefore persons to whom for the objective reasons paid work, or the persons of retirement age having disability or having different diseases having the right to address to the bodies authorized on the solution of questions of release them from payment of the state fee for submission of the claim is not provided.

Based on stated and being guided by Article 40, part one of article 116 of the Constitution, articles 7, of 36, of 38, of 40, of 40-1 Law "About the Constitutional Court of the Republic of Belarus", the Constitutional Court

DECIDED:

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