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CONCLUSION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of November 12, 2001 No. Z-129/2001

About compliance of the Constitution of provision of Item 3 parts four of article 4 of the Criminal code of the Republic of Belarus and the practice of application of concept of the official based on it on the basis of making of legally significant actions

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.

with participation of representatives:

Council of Ministers of the Republic of Belarus - Romanovich I. P.;

The Houses of Representatives of National assembly of the Republic of Belarus - Kibaka I. A., Kravchenko T. N.;

Council of the Republic of National assembly of the Republic of Belarusbury V. V.

considered in proceeding in open court case "About compliance of the Constitution of provision of Item 3 parts four of article 4 of the Criminal code of the Republic of Belarus and the practice of application of concept of the official based on it on the basis of making of legally significant actions".

Took part in judicial session: Ptashnik V. N. is the vice-chairman of the Supreme Court of the Republic of Belarus, Smirnov E.A.zamestitel Predsedatelya of Supreme Economic Court of the Republic of Belarus, Petrash A. S. - First Deputy Minister of Justice of the Republic of Belarus.

Proceeedings are initiated by the Constitutional Court on October 17, 2001 according to the offer of Council of Ministers of the Republic of Belarus based on article 116 of the Constitution, Articles 5, 6 and 11 Laws "About the Constitutional Court of the Republic of Belarus", Articles 43 and 48 of Regulations of the Constitutional Court of the Republic of Belarus.

Item provision 3 parts four of article 4 of the Criminal code of the Republic of Belarus (further - UK) were subject to check according to which the faces authorized in accordance with the established procedure on making of legally significant actions and also the practice of application of concept of the official based on the specified provision are carried to officials.

In the offer of Council of Ministers made in connection with the address of the Minister of Internal Affairs it is specified that in UK there is no determination of concept of the official on the basis of making of legally significant actions by it, it is indistinctly explained in item 4 of the resolution of the Plenum of the Supreme Court of the Republic of Belarus of June 4, 1993 to No. 4 "About court practice on cases on authority misuse or office powers, exceeding of the power or office powers, office negligence, official forgery". As a result of it in investigative and court practice uniform approach to determination of concept of the official on the specified sign is not provided, in particular, the issue of ambiguously is resolved whether the teachers of the highest or average special educational institutions holding exams or offsettings and receiving from students or pupils of remuneration for positive estimates of their knowledge are subject to criminal liability.

Having heard the judge-speaker Sarkisova E. A., agents of the parties, expert Lukashov A. I. - the doctoral candidate of Ministry of Internal Affairs Academy of the Republic of Belarus, Candidate of Law Sciences, the associate professor, having analyzed provisions of the Constitution, the Criminal code, other regulations of the Republic of Belarus, having studied practice of application of the checked regulation and other case papers, the Constitutional Court established the following.

According to part four of article 116 of the Constitution of the Republic of Belarus the Constitutional Court according to offers of the bodies specified in this Article draws, in particular, the conclusions about constitutionality of the laws, and also acts of the Supreme Court of the Republic of Belarus.

Article 4 UK contains number of definitions which are given as it follows from part one of the specified Article, for the purpose of uniform and exact application of the terms used in the Criminal code.

In part four of this Article persons who should be carried to officials are listed. Are understood as officials:

1) public agents, that is deputies of the House of Representatives of National assembly of the Republic of Belarus, members of council of the Republic of National assembly of the Republic of Belarus, deputies of local councils of deputies, and equally government employees having the right within the competence to make orders or orders and to make decisions concerning persons who are not subordinated to them on service;

2) representatives of the public, that is the persons who are not in public service, but given in accordance with the established procedure authority to the public agent in case of accomplishment of obligations on protection of public order, fight against offenses, on administration of law;

3) persons, it is permanent or temporary or on special power occupying in organizations, the organizations or at the companies (irrespective of patterns of ownership), in Armed Forces of the Republic of Belarus, other troops and military forming of the Republic of Belarus the positions connected with accomplishment organizational and administrative either administrative type duties or the faces authorized in accordance with the established procedure on making of legally significant actions.

The specified regulations generally reproduce note provisions to article 166 UK of 1960 which edition was changed by the Law of the Republic of Belarus of June 15, 1993. "About modification and amendments in some legal acts of the Republic of Belarus", enacted on July 22, 1993.

According to this Law began to carry to officials along with other persons and persons authorized in accordance with the established procedure on making of legally significant actions. The specified Law the group of people, subject criminal liability as the faces which are not essentially those, but equated to them owing to making of legally significant actions by them also were carried to officials was actually expanded.

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