SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of January 11, 2002 No. P-135/2002

About the right to amnesty of convicts concerning whom the sentences which took legal effect were reviewed according to the procedure of supervision

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., Vorobey G. A., Kenik K. I., Podgrusha V. V., Sarkisovoy E.A., Tikovenko A. G., Filipchik R. I., G.B. Cone, Shuklina V. Z., having considered based on Article 40 and part one of article 116 of the Constitution of the Republic of Belarus addresses of the condemned citizen and his legal representative on the issue of non-use of amnesty, established the following.

Article 10 of the Law of the Republic of Belarus of July 14, 2000. "About amnesty of some categories of persons who committed crimes" reducing for one year of term of punishment to persons condemned to imprisonment was provided. Convicts concerning whom on the date of entry into force of the law on amnesty sentences took legal effect fell under operation of this article according to article 14 of this Law. Similar regulations contained also in earlier adopted laws on amnesty.

The addresses which arrived in the Constitutional Court demonstrate that in practice non-use of amnesty to convicts concerning whom sentences took legal effect on the date of entry into force of the law on amnesty takes place, but then were reviewed according to the procedure of supervision.

The constitutional court notes that the convict concerning whom sentence took legal effect on the date of entry into force of the specified Law has the right to amnesty in spite of the fact that afterwards the sentence or the determinations of cassation instances which are taken out on it were reviewed according to the procedure of supervision.

According to the Constitutional Court, the arisen right of the convict to amnesty shall not be lost because its case is reconsidered according to the procedure of supervision when the mistakes made by courts are, as a rule, eliminated, but execution of sentence does not stop and the convict continues to serve the penalty imposed by court.

The constitutional court pays attention that it made on November 17, 2000 the decision "On the right to amnesty of convicts concerning whom sentences did not take legal effect in connection with their cassation appeal (protest)". Proving the line item on the matter, the Constitutional Court noted the following.

According to article 21 of the Constitution providing the rights and freedoms of citizens of the Republic of Belarus is the prime target of the state. The constitution proclaims the principle of equality of all before the law and the right without any discrimination to equal protection of the rights and legitimate interests (Article 22). Article 60 of the Constitution to everyone guarantees protection of its rights and freedoms by competent, independent and just trial in the terms determined by the law. According to part three of article 115 of the Constitution of the party and person, participating in process, have the right to appeal of decisions, sentences and other court decrees. Article 8 of the Universal Declaration of Human Rights determines that each person has the right to effective recovery in the rights by competent domestic courts in cases of violation of its basic rights provided to it by the constitution or the law.

In the specified decision the Constitutional Court did not exclude the right to amnesty of convicts concerning which the sentences pronounced by Trial Courts did not take legal effect on the date of entry into force of the law on amnesty because their writs of appeal were not considered on circumstances, from them not dependent for a long time. The constitutional court noted that such persons fall into unequal position in comparison with convicts whose writs of appeal were considered without tightening of terms, or with convicts who did not use the right to cassation appeal of the adjudication at all.

The adduced arguments still to a large extent belong to those cases when the pronounced sentences took legal effect on the date of entry into force of the law on amnesty, but afterwards convicts used the right to judicial protection by means of bringing of the supervising claim.

Non-use to such persons of amnesty puts them in unequal position with convicts who did not exercise the right of appeal of sentence according to the procedure of supervision. Besides, non-use of amnesty in cases when sentences are reviewed according to the procedure of supervision, actually limits the right of the sentences condemned on judicial appeal as they can refuse implementation of such right only on the date of entry into force of the law on amnesty they did not lose the right to application to them this law.

According to the Constitutional Court, for application of amnesty to convicts concerning whom sentences or determinations of cassation instances were reviewed according to the procedure of supervision it is not required the additional legislative solution. Such persons have the right to amnesty as on the date of entry into force of the law on amnesty the sentences pronounced concerning them had legal force.

At the same time the Constitutional Court considers necessary in case of adoption in the future of the laws on amnesty to provide their distribution and on persons who committed crimes before introduction of the specified laws in action, but sentences concerning whom did not take legal effect on the date of entry into force of the laws on amnesty.

Based on stated and being guided by Article 40, part one of article 116 of the Constitution, articles 7, of 11, of 36, of 38, 40 and 40-1 Laws "About the Constitutional Court of the Republic of Belarus", the Constitutional Court

solved:

1. Consider that persons concerning whom the pronounced sentences took legal effect on the date of entry into force of the law on amnesty have the right to amnesty and when these sentences according to the procedure of supervision are performed afterwards.

2. Suggest National assembly of the Republic of Belarus to provide in case of adoption of the laws on amnesty their distribution and on persons who committed crimes before enforcement of the specified laws, but sentences concerning which did not take legal effect on the date of entry into force of the laws on amnesty.

3. This decision becomes effective from the date of acceptance.

4. Publish this decision according to the legislation.

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