of December 24, 2009 No. 11
About application by courts of the legislation regulating protection of the rights and legitimate interests of citizens by consideration of claims to wrongful acts (failure to act) of state bodies, other organizations and officials
The constitution of the Republic of Belarus guarantees the right of citizens to personal or collective appeals to state bodies, and also establishes obligation of state bodies and officials timely and to qualitatively resolve addresses of citizens (the Art. 40).
For the purpose of enhancement of the mechanism of protection of the rights and legitimate interests of citizens from wrongful acts (failure to act) of state bodies, other organizations, officials reforming of the legislation is performed, number of the regulatory legal acts directed to optimization of activities of state bodies and the maximum accounting of interests of citizens is accepted. Additional guarantee of protection of the rights of citizens is establishment of procedure of ministerial procedures by the declarative principle.
Justification of actions of state bodies, other organizations and officials in case of permission of addresses of citizens is checked by court which shall provide timely consideration of the claim of the citizen and in case of violation of its rights and legitimate interests to pass the decision directed to their recovery.
Considering features of consideration of this category of cases and need of the correct and uniform application of the legislation, the Plenum of the Supreme Court of the Republic of Belarus decides:
1. Draw the attention of courts that timely and effective recovery of the rights and legitimate interests of citizens according to claims to actions (failure to act) of state bodies, other organizations * and officials is one of the major tasks when ensuring judicial protection.
* For the purposes of this resolution state bodies, other organizations are understood also as authorized bodies when implementing ministerial procedures, other legal entities, and also the organizations who are not legal entities.
The claim can be filed a lawsuit personally by the citizen, his representative (Art. 72 of the Code of civil procedure of the Republic of Belarus (further – GPK), and also the prosecutor (the Art. of 81 GPK).
Owing to Art. 60 of the Constitution of the Republic of Belarus appeal of the actions (failure to act) provided by the p. 2 of the Art. 353 GPK extrajudicially does not deprive of citizens, and in stipulated by the legislation cases – legal entities of the right to appeal to the court in case of disagreement with the made decision.
2. According to rules § 6 hl. 29 GPK citizens have the right to appeal in court wrongful acts (failure to act) of state bodies, other organizations and officials which infringe their rights, except cases when the procedure for appeal of such actions (failure to act) is established by other regulations of GPK (for example, in § 2, 4, 5, 7–9 hl. 29 GPK) or when for permission of separate claims the legislation of the Republic of Belarus establishes other non-judicial procedure for appeal.
3. Courts need to mean that according to the Law of the Republic of Belarus of October 28, 2008 No. 433-Z "About bases of ministerial procedures" citizens can appeal in court executive decisions of state bodies, other organizations (authorized bodies) within which competence implementation of ministerial procedures is.
The list of the ministerial procedures performed by state bodies and other organizations for petitions from citizens No. approved by the Presidential decree of the Republic of Belarus of April 26, 2010 200, is not subject to extensive interpretation.
In court the decisions of state bodies, other organizations, officials accepted according to addresses (offers, statements, claims) of citizens based on the Law of the Republic of Belarus of July 18, 2011 No. 300-Z "About addresses of citizens and legal entities" which do not fall under operation of the legislation on ministerial procedures can be appealed.
4. Explain to courts that executive decisions judicially are appealed: about refusal in adoption of the statement of the interested person; about implementation of ministerial procedure; about refusal in implementation of ministerial procedure, accepted by authorized bodies in writing to which, in particular, the references or other documents issued when implementing ministerial procedures are equated (the Art. 24, item 3 of Art. 26 of the Law of the Republic of Belarus "About bases of ministerial procedures").
The executive decision about refusal in adoption of the statement of the interested person which is adopted in oral form can be also appealed in court with observance of administrative (extrajudicial) procedure for appeal.
5. Draw the attention of courts that the right to judicial protection against wrongful acts (failure to act) of officials and bodies of military management according to the laws of the Republic of Belarus of January 4, 2010 No. 100-Z "About the status of the military personnel" and of November 5, 1992 No. 1914-XII "About conscription and military service" military personnel, and also other persons to whom the status of the military personnel (persons liable for call-up extends when passing military or special charges, reservists during stay on the occupations or training sessions determined by programs of training of reservists have (Art. 2 of the Law of the Republic of Belarus "About the status of the military personnel")).
According to the procedure, provided §1 and 6 hl. 29 GPK, these persons can appeal in court also actions (failure to act) of authorized bodies of military management in connection with implementation in Armed Forces, the state security agencies and the border service, internal troops of the Ministry of Internal Affairs and other military forming of the ministerial procedures provided by the list of the ministerial procedures performed by state bodies and other organizations for petitions from citizens.
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