SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of April 17, 2001 No. P-114/2001

About procedure for forming of structure of national zasedetel

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., Shuklina V. Z., having considered based on Article 40 and part one of article 116 of the Constitution the appeal of the Ministry of Justice of the Republic of Belarus about procedure for forming of list of jurymen, established the following.

According to article 113 of the Constitution of the Republic of Belarus cases in courts are considered jointly, and in provided by the law sluchayakhedinolichno judges. According to Article 10 of the Code of penal procedure of the Republic of Belarus (enacted since April 1, 1961 and existing till January 1, 2001) in all courts of case on crimes for which making custodial sanction for the term of over ten years or capital punishment is prescribed were considered on the first instance jointly as a part of the judge and two jurymen.

The law of January 13, 1995. "About judicial system and the status of judges in the Republic of Belarus" instead of institute of jurymen the institute of jury members was entered. According to article 8 of the specified Law the court shall consider cases on the first instance as a part of one judge and board from seven jury members about crimes for which making punishment in the form of capital punishment is prescribed if the person accused did not plead guilty and required appointment of jury trial. In other cases criminal cases shall be considered solely by the judge or is joint as a part of three judges. Provisions of the specified Law regarding consideration of criminal cases by court with participation of jury members shall be enacted since January 1, 2000.

Due to the adoption of law "About judicial system and the status of judges in the Republic of Belarus" it was necessary to make changes to the Code of penal procedure, however changes and additions on the matter were not made to the procedural legislation. For the purpose of elimination of collision between the Code of penal procedure and the Decree of the President of the Republic of Belarus called by the law of February 3, 2000 No. 4 "About joint consideration of criminal cases in courts" it is established that joint consideration of criminal cases in all courts on the first instance is performed as a part of the judge and two jurymen according to the Code of penal procedure. The decree became effective since January 1, 2000.

Article 32 of the new Code of Criminal Procedure which became effective since January 1, 2001 establishes joint consideration on the first instance as a part of the judge and two jurymen of cases on crimes for which the penal statute prescribes punishments over ten years of imprisonment or capital punishment, and also about crimes of minors.

Thus, in judicial system of Belarus the institute of jurymen is kept. At the same time corresponding changes and additions are still not made to the Law "About Judicial System and the Status of Judges in the Republic of Belarus".

The procedure for forming of list of jurymen is determined by the Provisional regulations for approval procedure of lists of jurymen approved by the Resolution of the Supreme Council of the Republic of Belarus of June 7, 1996 now (further - Provisional regulations).

In particular, it is provided in Provisional regulations that the citizens of the Republic of Belarus who reached age of 25 years, and jurymen of public vessels - the citizens of the Republic of Belarus who are in active duty can be jurymen. When implementing justice jurymen have all rights of the judge and fulfill the duties provided by the Code of Criminal Procedure. Matching of candidates and creation of lists of jurymen is performed by justice departments regional, Minsk city executive committees for a period of five years based on electoral registers at elections in local or the supreme authorities from among the citizens who are constantly living in the territory of the area, the city, area. Lists of jurymen district (city), regional, Minsk city courts affirm corresponding district (city), regional, Minsk city executive committees. Lists of jurymen of public vessels are constituted for a period of five years and affirm commanders of military units. Lists of jurymen of the Supreme Court of the Republic of Belarus affirm the Supreme Council of the Republic of Belarus on representation of the Chairman of the Supreme Court of the Republic of Belarus. Creation and approval of lists of jurymen instead of disposed is performed in the same procedure.

Having analyzed provisions of the Constitution, legal acts regulating questions of implementation of justice, practice of participation in it jurymen, the Constitutional Court came to conclusion that the court to which it trusts to consider and resolve civil and criminal cases is capable to manage authentic justice if it is legal, competent, independent and impartial (Articles 60, of 110, of 111, 112 Constitutions). Such provision is based also on the international documents. According to part one of article 14 of the International Covenant on Civil and Political Rights everyone has the right by consideration of any criminal charge brought to him or in case of determination of its rights and obligations in any civil process to fair and public trial of case by the competent, independent and just trial created based on the law.

According to Articles 59, 60 Laws "About Judicial System and the Status of Judges in the Republic of Belarus" judges are persons given in the procedure established by the law authority on justice implementation. Judges of all courts in the Republic of Belarus have the single status. Features of the status of separate categories of judges can be determined by legal acts of the Republic of Belarus. In Item 46 of article 6 Code of Criminal Procedure the professional judge of any court and the juryman treat judges. Thus the Code of Criminal Procedure distinguishes from judges of professional judges and jurymen who are not professional judges.

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