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CONCLUSION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of March 25, 1999 No. Z-77/99

About tolklvaniye of the conclusion of the Constitutional Court of the Republic of Belarus of December 19, 1994 "About compliance of the constitution of the note to article 177 of the Criminal code of the Republic of Belarus"

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., the 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., G.B. Cone, Shuklina V. Z.

with participation of representatives:

Houses of Representatives of National assembly of the Republic of Belarus: Karpovich N. A. - deputy chief of the Main expert legal department of the Secretariat of the House of Representatives;

Council of the Republic of National assembly of the Republic of Belarus: Senyuta L. Ya. - chief specialist of expert legal department of the Secretariat of Council of the Republic

considered in proceeding in open court case "About interpretation of the Conclusion of the Constitutional Court of the Republic of Belarus of December 19, 1994. "About compliance of the Constitution of the note to article 177 of the Criminal code of the Republic of Belarus".

Took part in judicial session: Ivanovo A.V.zamestitel of the Attorney-General of the Republic of Belarus; Sergeyev O. G. - the deputy minister of justice of the Republic of Belarus.

The conclusion of the Constitutional Court of December 19, 1994 acknowledged not corresponding Constitutions of the Republic of Belarus separate provisions of the note to article 177 of the Criminal code of the Republic of Belarus.

Due to ambiguous assessment in legislative and law-enforcement practice of the Conclusion of the Constitutional Court of December 19, 1994 in the part concerning questions of responsibility of close relatives and members of the family of person who committed crime for not informing and in advance not promised concealment, and also considering request of Prosecutor's office of the Republic of Belarus for explanation of the specified Conclusion, the Constitutional Court initiated on March 4, 1999 proceeedings "About interpretation of the Conclusion of the Constitutional Court of the Republic of Belarus of December 19, 1994. "About compliance of the Constitution of the note to article 177 of the Criminal code of the Republic of Belarus".

Having heard representatives of chambers of National assembly of the Republic of Belarus, having analyzed regulations of the existing Criminal code of the Republic of Belarus, the draft of the new Criminal code approved in the first reading by the House of Representatives of National assembly of the Republic of Belarus, the Model Criminal code for the State Parties of the CIS, investigative and court practice and also regulation of the constitutional and penal legislation of other states, the Constitutional Court notes the following.

According to article 27 of the Constitution of the Republic of Belarus nobody shall be forced to evidence and explanations against himself, members of the family, close relatives. The evidence obtained with violation of the law has no legal force.

Article 27 of the Constitution the right of close relatives and members of the family of person, suspect or person accused of crime execution actually affirms, or not to witness the defendant against itself and this person. Guarantee of this right is fixing in the legislation of provision according to which person is not subject to criminal liability for standing mute if they are directed against his close relatives or members of his family. The right of close relatives and members of the family of person who committed crime not to report in state bodies data which are directly directed against this person that assumes exception of criminal liability of persons specified in this article for failure to report about the subject of crime also follows from article 27 of the Constitution.

Explaining the Conclusion of the Constitutional Court of December 19, 1994 in the part concerning failure to report about crime, the Constitutional Court pays attention that failure to report about crime according to the penal legislation can be expressed both in failure to report about the preparing crime, and in failure to report about authentically known already committed crime. At the same time degree of public danger of not informing depends not only on weight of crime about which it is not reported in relevant organs, but also from nature of the failure to act made by nedonositel. As in case of the message on the preparing crime there is real opportunity to prevent its making, having prevented thereby damnification to the objects protected by the law, and failure to report about preparation of crime interferes with forming of the procedure necessary for complete implementation of human rights and freedoms, observance of the differentiated approach to establishment of responsibility for the specified failure to report and failure to report about the committed crime when harmful effects already came matters.

Taking into account the specified distinction of forms of not informing also the regulation of Article 406 of the draft of the Criminal code of the Republic of Belarus according to which it is supposed to establish more strict liability for failure to report about authentically known preparing heavy or especially serious crime in comparison with failure to report about authentically known committed especially serious crime and failure to report about authentically famous person who committed this crime or about the location of such person is formulated.

In this regard the Constitutional Court pays attention that failure to report about the preparing especially serious crime posing threat for life of people is characterized by bigger public danger.

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