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CONCLUSION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of December 11, 1998 No. Z-74/98

About compliance of the Constitution of the Republic of Belarus parts three of Article 404 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., vice-chairman Maryskin A. V., Boyko T. S. judges., 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 agents of the parties:

The president of the Republic of Belarus who made the offer on check of constitutionality of part three of Article 404 of the Code of penal procedure of the Republic of Belarus: Lukashova A. I. - the chief 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:

Sviridovoy S.A. - deputy chief 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 part three of Article 404 of the Code of penal procedure of the Republic of Belarus".

Took part in judicial session: Tsarenko E. M. - vice-chairman of the Supreme Court of the Republic of Belarus; Ivanenko P.I.zamestitel of the 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 part three of Article 404 of the Code of penal procedure of the Republic of Belarus was subject to check (SZ BSSR, 1966, N 28, Art. 375; 1978, N 2, Art. 30; 1985, N 5, Art. 65).

According to Article 404 of the Code of penal procedure of the Republic of Belarus (further - the Code of Criminal Procedure) court, having recognized the materials about the crimes listed in article 400 Code of Criminal Procedure, sufficient for consideration which arrived from body of inquiry takes out determination about initiation of legal proceedings, the bringing of the offender to court, chooses to it in necessary cases measure of restraint and considers case in judicial session or returns materials for production of inquiry or pretrial investigation, and in the absence of the bases to initiation of legal proceedings refuses initiation of legal proceedings. The judge solely can issue the decree on initiation of legal proceedings, the bringing of the offender to court and purpose of case to consideration in judicial session. In determination of court or the judge's ruling the formulation of accusation with indication of Article of the penal statute according to which person is prosecuted is stated. Determination of court or the judge's ruling are handed to the defendant.

In the offer the President of the Republic of Belarus raised question of check of constitutionality of part three of article 404 Code of Criminal Procedure assigning obligation to court (judge) to formulate accusation in determination (resolution) on initiation of legal proceedings that, according to the President, contradicts the Constitution of the Republic of Belarus and regulations of the International Covenant on Civil and Political Rights.

Having heard the message of the judge-speaker Podgrusha V. V., agents of the parties, having analyzed relevant provisions of the Constitution, the Code of penal procedure of the Republic of Belarus, the International Covenant on Civil and Political Rights and other international legal acts, having studied case papers, the Constitutional Court established the following.

The institute of protocol form of pre-judicial preparation of materials was originally entered into the criminal procedure legislation for the purpose of simplification of the procedure of production for cases on hooliganism. Further this procedure was extended to cases on the crimes provided by Articles 94, the 96th part one, 120, 153rd part one, the 155th part one, 156, the 160th part one, 161 part one, 163rd part one, the 165th part one, 194-3, 201 part one, 207-2 part one of the Criminal code of the Republic of Belarus.

According to the current version of the Section of the eighth Code of Criminal Procedure regulating questions of protocol form of pre-judicial preparation of materials, bodies of inquiry not later than in ten-day time establish circumstances of the committed crime and the identity of the offender, receive explanations from the offender, eyewitnesses and other persons, request the certificate of availability or lack of criminal record at the offender, the characteristic from the place of its work or study and other materials important for consideration of the case in court. The obligation to be on challenges of bodies of inquiry and court and to report to them about change of the residence is taken away from the offender.

About circumstances of the committed crime the protocol in which the actual data confirming availability of crime and guilt of the offender, qualification of crime under the article of the Criminal code of the Republic of Belarus and other essential circumstances on case are specified is constituted. All materials, and also the list of persons which are subject to writ of summons join the protocol. Having recognized impossible application to the offender of community sanctions, the chief of body of inquiry approves the protocol, then all materials are shown to the offender for acquaintance then the protocol together with materials from the sanction of the prosecutor is taken to court.

According to article 404 Code of Criminal Procedure the obligation is assigned to court (judge) to consider the arrived materials and if they are acknowledged sufficient for consideration in judicial session, to take out determination (resolution) on initiation of legal proceedings, to state in it the formulation of accusation, to prosecute the offender, to choose to it in necessary cases measure of restraint and to consider case in judicial session.

Having estimated the regulation of part three of article 404 Code of Criminal Procedure assigning obligation to court to formulate accusation on the criminal case brought based on the materials received according to the procedure of protocol form of pre-judicial preparation, the Constitutional Court came to conclusion about its illegality on the following bases.

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