of July 14, 1998 No. Z-69/98
About compliance of the Constitution of the Republic of Belarus of parts three and the fourth Article 123 of the Code of penal procedure 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., 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: Hodnevich T. N. - the vice-chairman of the Permanent commission of the House of Representatives of National assembly of the Republic of Belarus on homeland security, Orlov 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 of National assembly of the Republic of Belarus;
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 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 of National assembly of the Republic of Belarus;
expert Kukresh L. I. - associate professor of criminal procedure of Ministry of Internal Affairs Academy of the Republic of Belarus, Candidate of Law Sciences
considered in proceeding in open court case "About compliance of the Constitution of the Republic of Belarus of parts three and the fourth Article 123 of the Code of penal procedure of the Republic of Belarus".
Took part in judicial session: Ptashnik V. N. is the vice-chairman of the Supreme Court of the Republic of Belarus; Egorov A.P.zamestitel Predsedatelya of Supreme Economic Court of the Republic of Belarus; Bozhelko O. A. - Attorney-General of the Republic of Belarus.
Proceeedings are initiated by the Constitutional Court on May 25, 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.
Parts three and the fourth Article 123 of the Code of penal procedure of the Republic of Belarus were subject to check.
According to part three of Article 123 of the Code of penal procedure of the Republic of Belarus (in the further Code of Criminal Procedure) on cases on the crimes provided by Articles 68, of 71, of 74, 74-1, 77-79, 82, 100-105, 114-118, 122, 122-1, 124-127, 128, 130-140, 149, 149-2, 158, of 159, 166-176, 184-4, 186-2, 186-3, 187 - 189-1, 194-2, 198, 208-2, 209-211, 216-218, 219-4 part two, 222, 227-247, 248 Items "g" and "d", 249-258 Criminal codes of the Republic of Belarus, pretrial investigation is held by investigators of bodies of prosecutor's office, and on cases on the crimes provided by Articles 61-67, 69, of 72, of 73, 73-1, 75, of 76, of 80, of 81, 248 Items "and", "b" and "v" of the Criminal code of the Republic of Belarus - also investigators of the state security agencies.
According to part four of article 123 Code of Criminal Procedure on cases on the crimes provided by Articles 83, of 84, 84-1, 84-2, 85-1, 85-2, 87-90, 92, 92-2, 93, the 96th part two, 97, of 98, 106-109, 111, of 112, 112-1, 113 parts two, the third and fourth, 113-1, 119, of 123, 150-1 - 150-6, 151 part two, 151-3 - 152-4, 153 part two, 154, of 157, the 160th part two, 162, 181-1, 184, 184-1, 184-3, 190-192, 197-1, 201 part three, 202, 203rd part two, 205-206, 206-2, 206-3, 207-2 parts two and third, 208, 208-1, 211-1 - 211-5, 212-215, 219 - 219-3, 219-4 part one, 219-5 - 219-7, 220-221, 223-225 Criminal codes of the Republic of Belarus, on all cases on the crimes committed by minors, pretrial investigation is held also by investigators of law-enforcement bodies.
About entering into the Constitutional Court of the offer on check of constitutionality of the specified parts of article 123 Code of Criminal Procedure the Attorney-General of the Republic of Belarus appealed to the President of the Republic of Belarus. In the address he, in particular, specified that by part four of article 123 Code of Criminal Procedure it is determined that on all cases on the crimes committed by minors, pretrial investigation is held also by investigators of law-enforcement bodies. In this part of Article competence is determined not depending on the sanction of Article, and depending on person who committed crime. From this follows that the law on all categories of criminal cases on the crimes committed by minors provides their investigation and investigators of law-enforcement bodies that is confirmed by long-term court practice. At the same time the Plenum of the Supreme Court of the Republic of Belarus, issuing the decree on specific case on the crimes provided by articles 74 and 100 of the Criminal code of the Republic of Belarus in which making together with persons which reached 18-year age also three minors participated specified that conducting the investigation of this case by the investigator of law-enforcement bodies is fundamental breach of the criminal procedure law. The plenum of the Supreme Court of the Republic of Belarus specified, in particular, that put about the crimes qualified by articles 74 and 100 of the Criminal code which sanctions prescribe exceptional measure of punishment, podsledstvenna only to bodies of prosecutor's office.
Such interpretation of article 123 Code of Criminal Procedure, according to the Attorney-General, calls into question constitutionality of this regulation, is essentially wrong, contradicts sense of the third and fourth parts of article 123 Code of Criminal Procedure and, besides, is this in defiance of the Constitution of the Republic of Belarus.
Having heard the judge-speaker Sarkisova E. A., the agent of the party, the expert, having analyzed provisions of the Constitution, the Code of penal procedure and other laws of the Republic of Belarus, international legal acts, having studied case papers, investigative and court practice, the Constitutional Court established the following.
According to article 122 Code of Criminal Procedure pretrial investigation on criminal cases is held by investigators of prosecutor's office, and also investigators of law-enforcement bodies and investigators of the state security agencies.
In article 123 Code of Criminal Procedure obligation of pretrial investigation and competence are regulated. In case of determination of competence in parts three and the fourth article 123 Code of Criminal Procedure two criteria are used: crime type (subject competence) and signs of the subject of crime (personal competence).
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