of October 5, 2000 No. P-103/2000
About practice of award enforcement of the Constitutional Court of the Republic of Belarus of July 2, 1999 "About some questions of representation in court on civil cases", of December 13, 1999 "About some questions of providing to citizens of constitutional right on receipt of legal aid in criminal procedure", of July 4, 2000 "About some questions connected with rendering legal aid by the convict" regarding realization of provisions of article 62 of the Constitution
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., Shabaylova V. I., Shuklina V. Z., having considered based on Article 40 and part one of article 116 of the Constitution of the Republic of Belarus addresses concerning rendering legal aid and practice of award enforcement of the Constitutional Court of July 2, 1999. "About some questions of representation in court on civil cases", of December 13, 1999. "About some questions of providing to citizens of constitutional right on receipt of legal aid in criminal procedure" and of July 4, 2000. "About some questions connected with rendering legal aid by the convict" regarding realization of provisions of article 62 of the Constitution established the following.
1. 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. One of constitutional rights of citizens is the right to legal aid. It is provided in article 62 of the Constitution that everyone has the right to legal aid for implementation and protection of the rights and freedoms, including the right to use at any time the help of lawyers and other representatives in court, other state bodies, local authorities, at the companies, in organizations, the organizations, public associations and in the relations with officials and citizens. In the cases provided by the law, legal aid is given at the expense of public funds. Counteraction to rendering legal assistance in the Republic of Belarus is forbidden.
2. The constitutional court based on the analysis of contents of article 62 of the Constitution, the current legislation and practice of their application came in the decisions to the following conclusions.
The state guarantees the right of everyone to receipt of qualified legal aid as realization fully of rights and freedoms of man and citizen depends on it.
In the decision of July 2, 1999. "About some questions of representation in court on civil cases" at the request of the Ministry of Justice the Constitutional Court noted that the state, on the one hand, guaranteeing qualified legal aid for implementation and protection of the rights and freedoms of citizens, enters obligatory licensing of lawyer activities and activities of legal entities and physical persons for rendering certain legal services, on the other hand, allows representation in court on civil cases of other persons. The legislator did not determine whether such representation can have systematic character as person which does not have the license is frequent, can appear the representative in court, and also did not establish condition of implementation of such representation. For the purpose of ensuring uniform approach to realization of regulations of article 62 of the Constitution the Constitutional Court suggested the Ministry of Justice of the Republic of Belarus to address in accordance with the established procedure with the offer on official interpretation of article 62 of the Constitution and the regulations of the procedural legislation of the Republic of Belarus concerning representation in court. However, despite the disputes arising in practice, such interpretation is still not this.
For the purpose of ensuring constitutional right of citizens on receipt of professional legal aid the Constitutional Court in the decision of December 13, 1999. "About some questions of providing to citizens of constitutional right on receipt of legal aid in criminal procedure" on the basis of the analysis of regulations of the Constitution and the laws of the Republic of Belarus, and also international legal acts came to conclusion that the right at any moment of legal aid of the lawyer shall be provided not only to the person accused, the defendant, but also the suspect concerning whom the measure of restraint in the form of detention is chosen.
Analyzing the regulations of the Code of penal procedure providing possibility of participation as defenders on criminal cases of both lawyers, and other persons (for example, close relatives, legal representatives), the Constitutional Court in the decision of July 4, 2000. "About some questions connected with rendering legal aid by the convict" specified that also other persons can give legal aid by the convict which according to the current legislation were allowed by court as the defendant's defender as all norms of the Criminal Procedure Code concerning the rights and the defender's obligations extend to it. Therefore person performing protection of the defendant in the court having the right to continue to give him legal aid on this case from its consent, and in places of detention, including to have for this appointment to the convict to observance of Regulations of the correctional institutions (further - Rules ITU) regulating, in particular, questions of rendering legal aid by lawyers. With respect thereto the Constitutional Court came to conclusion that article 27 ITK providing rendering legal aid to the convict only by lawyers not fully corresponds to article 62 of the Constitution and will not be approved with regulations of the criminal procedure legislation.
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