of June 15, 2007 No. P-200/2007
About the right of physical persons to legal aid in administrative process
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., Danilyuk's judges of Page E., Kenik K. I., Podgrusha V. V., Tikovenko A.G., Filipchik R. I., Shuklina V. Z. considered the address in which it is specified imperfection of the regulations of the legislation concerning providing the right of physical persons to legal aid in administrative process.
Having studied regulations of the Constitution of the Republic of Belarus, the Procedural and executive code of the Republic of Belarus on administrative offenses (further - ПИКоАП), the Code of penal procedure of the Republic of Belarus (further - the Code of Criminal Procedure), the Code of civil procedure of the Republic of Belarus, other regulatory legal acts of the Republic of Belarus, the Constitutional Court established the following.
According to part one of article 62 of the Constitution everyone has the right to legal aid for implementation and protection of the rights and freedoms, including the right to use at any time the help of lawyers and other representatives in court, other state bodies, local authorities, at the companies, in organizations, the organizations, public associations and in the relations with officials and citizens.
Article 1.4 ПИКоАП provides that protection is the procedural activities performed by the lawyer for the purpose of providing the rights, freedoms and legitimate interests of physical person concerning which administrative process is conducted. Physical persons or legal entities concerning which the court, by the body conducting administrative process establishes guilt in making of administrative offense treat persons concerning whom administrative process is conducted.
According to Item 1 of Article 2.8 ПИКоАП the physical person concerning which administrative process is conducted has right of defense. It can perform this right as personally, and by means of the defender according to the procedure, established by this Code.
By Item 1 of Article 4.5 ПИКоАП it is determined that the defender, and rendering legal aid injured, and also to physical person - the individual entrepreneur concerning whom administrative process is conducted, - the representative can perform rendering legal aid to physical person concerning which administrative process is conducted. Item 2 of the specified Article as the defender in proceeedings about administrative offense provides participation of the lawyers who are citizens of the Republic of Belarus and the lawyers who are citizens of other states - according to international treaties of the Republic of Belarus. According to item 4 of this Article as the victim's representative in administrative process lawyers and other persons to whom he entrusted to represent the interests can participate.
Thus, the specified regulations ПИКоАП provide different amount of the rights on rendering legal aid to participants of administrative process: the physical person concerning which administrative process is conducted can independently perform protection or use legal aid of the defender who can be only the lawyer; at the same time the victim has the right to use services of the representative as whom not only lawyers, but also other persons to whom he entrusted to represent the interests can act. According to Article 1.4 and item 4 of Article 4.5 ПИКоАП representatives of the victim are his close relatives and other family members. Thereby the principle of equality of all persons participating in administrative process established in Item 1 of Article 2.12 ПИКоАП before the law and the right without any discrimination to equal protection of their rights and legitimate interests is broken.
The constitutional court also notes that, in turn, despite weight of possible effects (condemnation to imprisonment and application of other measures of punishment), the legislator provided more wide range of persons performing protection of the person accused in the Code of Criminal Procedure than it is established for person concerning whom administrative process is conducted. In the Code of Criminal Procedure, as well as in ПИКоАП, the principle of equality before the law of all persons who are involved in criminal trial and the right without any discrimination to equal protection of their rights and legitimate interests (part 1 of article 20 Code of Criminal Procedure) are set. At the same time according to part 3 of article 44 Code of Criminal Procedure according to the petition of the person accused by determination (resolution) of court as the defender in court not only the lawyer, but also one of close relatives of the person accused can be allowed. It must be kept in mind that if concerning person who committed crime, court or the prosecutor proceeedings stop and measures of administrative punishment are applied to it according to Item 3 of part 1 of article 30 Code of Criminal Procedure, its right to ensuring protection is narrowed. So, in case of participation in criminal procedure on the criminal case afterwards stopped by production in connection with application of measures of administrative punishment as the counsel for the accused of his close relative in administrative process the close relative loses the right to protect the specified person though he participated in protection within criminal case earlier and got acquainted with all circumstances of criminal case. Besides, it can lead to the prolongation of consideration of the case caused by need of attraction to participation in administrative process of other persons (in particular, the lawyer), their acquaintance with case papers and implementation of other measures.
According to the Constitutional Court, regulation ПИКоАП do not provide equality of participants of administrative process owing to lack of possibility of participation in protection of physical person concerning which process, along with the defender (lawyer) and other representatives, and also continuity between the criminal procedure and administrative and procedural legislation is conducted.
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