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CONCLUSION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of July 23, 1998 No. Z-70/98

About compliance of the Constitution of the Republic of Belarus of Item 3 parts two of Article 66 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., 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., Shabaylova V. I., G.B. Cone, Shuklina V. Z.

with participation of agents of the parties:

The president of the Republic of Belarus who made the offer on check of constitutionality of Item 3 parts two of Article 66 of the Code of penal procedure of the Republic of Belarus: Lukashova A.I.nachalnika of department of the legislation concerning defense and public safety, law enforcement and judicial authorities 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: 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: Senyuta L. Ya. - chief specialist of department of the state, penal and administrative legislation 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 the Republic of Belarus of Item 3 parts two of Article 66 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; Ivanenko P. I. - 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 July 7, 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.

The Item 3 parts two of Article 66 of the Code of penal procedure of the Republic of Belarus was subject to check.

According to part one of Article 66 of the Code of penal procedure of the Republic of Belarus (further - the Code of Criminal Procedure) as a witness for evidence any person to whom any circumstances which are subject to establishment on this case can be known can be subpoenaed.

According to part two of this Article cannot be interrogated as the witness:

1) the lawyer, the trade union representative and other public organization - about circumstances which became known to them in connection with execution by them of obligations of the defender or representative;

2) person who owing to the physical or mental defects is not capable to perceive correctly the circumstances important for case and to give about them the correct evidences;

3) the close relatives listed in Item 9 of article 22 Code of Criminal Procedure and members of the family of person who committed crimes;

4) the priest - about circumstances which became known to him in connection with execution of religious practices.

In the offer the President of the Republic of Belarus raised question of check of constitutionality of Item 3 parts two of article 66 Code of Criminal Procedure, having specified that this Item contradicts the Constitution of the Republic of Belarus and the International Covenant on Civil and Political Rights.

Having heard the judge-speaker Sarkisova E. A., agents of the parties, having analyzed provisions of the Constitution, Criminal and Criminal procedure codes of the Republic of Belarus, and also international legal acts, having studied case papers, the Constitutional Court established the following.

The Item 3 parts two of article 66 Code of Criminal Procedure was included in this Article by the Law of the Republic of Belarus of June 26, 1996. "About modification and amendments in Criminal and Criminal procedure codes of the Republic of Belarus" (Vyarkho¸naga Savet's Vedamastsi of Respubliki Belarus, 1996, N 23, the Art. 416). According to this Item the close relatives listed in Item 9 of article 22 Code of Criminal Procedure and members of the family of person who committed crime cannot be interrogated as the witness.

In reasons for the adoption of law which added article 66 Code of Criminal Procedure with Item 3, it was indicated the need of reduction of regulations of Criminal and Criminal procedure codes in compliance with the Conclusion of the Constitutional Court of December 19, 1994. "About compliance of the Constitution of the note to article 177 of the Criminal code of the Republic of Belarus" (The bulletin of the first session of the Supreme Council of the Republic of Belarus of the thirteenth convocation, N 57, page 22). According to the Constitutional Court, Item 3 brought in part the second article 66 Code of Criminal Procedure was not based on this Conclusion and regulations of the Constitution of the Republic of Belarus.

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.

In the Item "g" of part three of article 14 of the International Covenant on Civil and Political Rights it is specified that the right has everyone by consideration of any criminal charge brought to him not to be forced to evidence against itself or to recognition of by the guilty person.

Analyzing the specified provisions of the Constitution and the International Covenant on Civil and Political Rights, the Constitutional Court came to conclusion that close relatives and members of the family of person, the suspect or the person accused in crime execution, or the defendant have the right not to give evidences and explanations against themselves and this person, and the bodies holding inquiry or pretrial investigation, and courts have no right to require their witnessing against themselves, members of the family, close relatives. Provisions of article 27 of the Constitution and article 14 of the International Covenant on Civil and Political Rights do not contain restrictions of the right of witnesses in the presence of their consent to give evidences rather itself, close relatives and members of the family of the suspect or the person accused or the defendant, and also are not the basis for release them from accomplishment of the obligations of the witness provided by the criminal procedure legislation.

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