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of December 18, 2008 No. P-303/2008

About realization of the subjective right in case of cancellation of precepts of law

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Miklashevich P. P., the vice-chairman Maryskin A. V., Danilyuk's judges of Page E., Izotko V. P., Kozyrevoy L.G., Ryabtsev L. M., Sergeyeva O. G., Tikovenko A. G., Chigrinova S. P., Shuklin V. Z. considered the address of the citizen concerning implementation of the Decree of the President of the Republic of Belarus of June 13, 2001 No. 17 "About procedure for providing with premises of the military personnel, faces of the private and the commanding structure of law-enforcement bodies, financial investigations, bodies and divisions for emergency situations" (further - the Decree No. 17). The citizen specified that according to the called Decree the decision on provision of free financial aid on repayment of the soft credit obtained on premises construction was made on it as employee of law-enforcement body. The presidential decree of the Republic of Belarus of March 19, 2007 No. 128 "About some questions of provision and use of premises of the state housing stock" (further - the Decree No. 128) the Decree No. 17 is declared invalid in this connection financial aid by the applicant is received not in full. The citizen considers that he has the right to free financial aid in full as he addressed for it even before recognition of the specified Decree invalid.

It should be noted that it was entrusted to provide with the President of the Republic of Belarus in December, 2007 (after recognition of the Decree No. 17 voided) to the Prime Minister of the Republic of Belarus payment of financial aid to persons on whom in established by the Decree No. 17 procedure before entry into force of the Decree No. 128 decisions on payment of such help for the account and within the means provided on these purposes in the budget of the Republic of Belarus for 2007 are made.

Having analyzed relevant provisions of the Constitution of the Republic of Belarus (further - the Constitution), the Decree No. 17, of the Decree No. 128, of the Law of the Republic of Belarus "About regulatory legal acts of the Republic of Belarus" and other legal acts of the Republic of Belarus, the Constitutional Court established the following.

According to article 2 of the Constitution of people, its rights, freedoms and guarantees of their realization are the supreme value and the purpose of society and state. The state is responsible before the citizen for creation of conditions for free and worthy development of the personality.

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 (article 21 of the Constitution).

Nobody can be forced to fulfillment of duties, not provided by the Constitution of the Republic of Belarus and its laws, or to refusal of the rights (article 58 of the Constitution).

The constitution (Article 59) assigns obligation to the state to take all measures available to it for creation of the internal and international procedure necessary for complete implementation of the rights and freedoms of the citizens of the Republic of Belarus provided by the Constitution. State bodies, official and other persons to whom execution of the state functions is entrusted shall take within the competence necessary measures for implementation and protection of the rights and personal freedoms and bear responsibility for the actions violating the rights and personal freedoms.

The given constitutional provisions demonstrate that as at the level of the legislative and other regulatory legal acts establishing or stopping (canceling) right citizens and at the level of law-enforcement decisions realization of the rights of citizens provided by the Constitution, other legal acts and guaranteed by the state shall be provided. At the same time respect for balance of interests of citizens and the state, the principles of rationality and social justice is obligatory.

The specified provisions of the Constitution are realized in the Presidential decree of the Republic of Belarus of August 11, 2003 No. 359 "About measures for enhancement of rule-making activities" which as criteria of compliance of the project of regulatory legal act of the Constitution provides, in particular, reflection in it the constitutional principles, communication of contents of the draft of the act and regulations of the Constitution (Item 121 of Rules of preparation of projects of the regulatory legal acts approved by this Decree), and also in article 73 of the Law "About Regulatory Legal Acts of the Republic of Belarus" obliging to perform the proper organization of realization of regulatory legal acts after their acceptance (edition).

Practice of rule-making activities demonstrates that in certain cases cancellation of precepts of law and cancellation of the rights granted by them were made by the legislator decisions on possibility of legal regulation of the relations which arose based on the cancelled regulations but which did not receive final execution according to the cancelled regulations.

So, No. 618 "About public procurements in the Republic of Belarus" is settled by Item 15 of the Presidential decree of the Republic of Belarus of November 17, 2008 question of non-proliferation of operation of this Decree on public procurements of goods (works, services) if procedures of purchases are begun or agreements to deliver goods (performance of works, rendering services) are concluded before entry into force of this Decree. It is determined that the beginning of the procedure of public procurement should be considered approval date of task for public procurement of goods (works, services) the head (authorized by it the deputy) of the customer (the organizer, authorized organization) or the individual entrepreneur. These purchases come to the end by the legislation existing to the introduction of the Decree of November 17, 2008 No. 618 in force.


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