CONCLUSION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of June 19, 1998 No. Z-66/98

About compliance of the Constitution of the Republic of Belarus of article 246 of the Code of the Republic of Belarus about administrative offenses

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

with participation of agents of the parties:

The president of the Republic of Belarus who made the offer on check of constitutionality of article 246 of the Code of the Republic of Belarus on administrative offenses: Gapontseva E. A. - the deputy director of the National center of bill activities in case of the President of the Republic of Belarus;

Houses of Representatives of National assembly of the Republic of Belarus: Alexandrov V.M. - the vice-chairman of the Commission on the legislation of the House of Representatives; Orlova L. K. - head of department of the penal and administrative legislation of Management of examination of bills 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: Brown V.V. - the head of department of civil, social and economic laws of expert legal department of the Secretariat of Council of the Republic

considered in proceeding in open court case "About compliance of the Constitution of article 246 of the Code of the Republic of Belarus about administrative offenses".

Took part in judicial session: Ptashnik V. N. is the vice-chairman of the Supreme Court of the Republic of Belarus; Zhdanovich I.N.zamestitel Predsedatelya of Supreme Economic Court of the Republic of Belarus; Ivanovsky A. V. - deputy attorney general of the Republic of Belarus; Sergeyev O. G. - the deputy minister of justice of the Republic of Belarus.

Proceeedings are initiated by the Constitutional Court on May 19, 1998 according to the proposal of the President of the Republic of Belarus based on article 116 of the Constitution, articles 5 and 6 of the Law "About the Constitutional Court of the Republic of Belarus" and Article 43 of Regulations of the Constitutional Court.

Article 246 of the Code of the Republic of Belarus about administrative offenses was subject to check (SZ BSSR, 1984, N 35, the Art. 505). According to the specified Article administrative detention, personal inspection, examination of things and withdrawal of things and documents can be appealed by the interested person in higher body (official) or the prosecutor.

In the offer in the Constitutional Court on check of constitutionality of article 246 of the Code of the Republic of Belarus about administrative offenses the President of the Republic of Belarus specified, in particular, that the impossibility of appeal of detention judicially is in conflict with article 25 of the Constitution providing the right of person to judicial check of legality of his detention and also article 60 of the Constitution guaranteeing everyone protection of its rights and freedoms by competent, independent and just trial.

Having heard the judge-speaker Podgrusha V. V., agents of the parties, having studied case papers, having analyzed relevant provisions of the Constitution, the Code of the Republic of Belarus about administrative offenses (further - the Administrative Code), other laws, and also international legal acts, the Constitutional Court established the following.

According to the article 239 Administrative Code in the cases which are directly provided by legal acts for the purpose of suppression of administrative offenses when other corrective actions, identifications, creation of the protocol on administrative offense in case of impossibility of its creation are exhausted on site if creation of the protocol is obligatory, ensuring timely and correct hearing of cases and execution of resolutions on cases on administrative offenses are allowed administrative detention of person, personal inspection, examination of things and withdrawal of things and documents.

The article 241 Administrative Code provides that administrative detention of person who made administrative offense can be made by authorized bodies (officials) according to their competence (law-enforcement bodies (militia), border troops, the senior in the location of the protected object by the official of the militarized protection, officials of military automobile inspection, officials of customs authorities).

According to the article 242 Administrative Code administrative detention of person who made administrative offense can last no more than three hours. In exceptional cases, in connection with special need legal acts longer terms of administrative detention can be established.

According to the legislation administrative detention is the measure of administrative influence providing production on cases on administrative offenses. In character the administrative detention consisting in forced restriction of freedom of person for certain term affects its right to immunity and advantage of the personality.

The Universal Declaration of Human Rights proclaims that each person has right to liberty and to security of person (Article 3); nobody can be subjected to arbitrary arrest or detention (Article 9); 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 (Article 8).

The International Covenant on Civil and Political Rights also provides that each person has right to liberty and security of person and nobody can be subjected to arbitrary arrest or detention; everyone who is imprisoned owing to arrest or detention possesses the right to trial of its case in court that this court could issue instantly the decree concerning legality of his detention and dispose about its release if detention is illegal (Article 9); each state participating in this Pact shall develop possibilities of judicial protection (Article 2). The right to judicial review of legality of detention is guaranteed by article 9 of the Pact regardless of nature of detention.

The right of each person to freedom and security of person, and also to judicial protection in case of detention belongs to the conventional principles and rules of international law.

According to article 8 of the Constitution the Republic of Belarus recognizes priority of the conventional principles of international law and provides compliance to them of the legislation. Article 21 of the Constitution provides that providing the rights and freedoms of citizens of the Republic of Belarus is the prime target of the state. The state guarantees the rights and freedoms of citizens of Belarus enshrined in the Constitution, the laws and provided by the international obligations of the state.

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