SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of July 2, 2015 No. P-989/2015

About the right of the citizens acting as witnesses in criminal procedure to legal aid

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 Sergeyeva O. G., Boyko T. S. judges., Voronovich T. V., Danilyuka of Page E., Izotko V. P., Kozyrevoy L.G., Podgrusha V. V., Ryabtseva L.M., Tikovenko A. G., Chigrinova S. P.

considered in proceeding in open court case "About the right of the citizens acting as witnesses in criminal procedure to legal aid".

Took part in judicial session:

the plenipotentiary of the President of the Republic of Belarus in the Constitutional Court is Mickiewicz V. V., the Presidentns deputy chief of staff of the Republic of Belarus;

the plenipotentiary of Council of the Republic of National assembly of the Republic of Belarus in the Constitutional Court is Moroz L. F., the chairman of the Permanent commission of Council of the Republic of National assembly of the Republic of Belarus by the legislation and the state construction;

the plenipotentiary of the House of Representatives of National assembly of the Republic of Belarus in the Constitutional Court is Mikhalkova L. S., the chairman of the Permanent commission of the House of Representatives of National assembly of the Republic of Belarus by the legislation;

the plenipotentiary of Council of Ministers of the Republic of Belarus in the Constitutional Court is Bodak A. N., deputy minister of justice of the Republic of Belarus;

representatives:

The Supreme Court of the Republic of Belarus - Aniskevich R. G., the vice-chairman of the Supreme Court of the Republic of Belarus;

The Prosecutor General's Office of the Republic of Belarus - Lashin A. M., deputy attorney general of the Republic of Belarus;

The Investigative Committee of the Republic of Belarus - Volkov A. A., First Deputy Chairman of the Investigative Committee of the Republic of Belarus;

Republican Bar - Chaychits V. I., chairman of Republican Bar.

Proceeedings are initiated by the Constitutional Court on May 20, 2015 according to part one of article 116 of the Constitution of the Republic of Belarus (further - the Constitution), the paragraph the eighth parts three of article 22 of the Code of the Republic of Belarus about judicial system and the status of judges, parts one and third article 158 of the Law of the Republic of Belarus "About the constitutional legal proceedings" based on the appeal of Republican human rights public association "Belarusian Helsinki Committee" which arrived in the Constitutional Court about need of elimination of legal gap and fixing for the legislation of the Republic of Belarus of the right of the citizens acting as witnesses in criminal procedure to legal aid.

In the address it is specified that in the procedural legislation of the Republic of Belarus there are no special regulations about rendering legal aid to witnesses. In practice such gap quite often leads to refusal in provision to witnesses of legal aid and by that to violation of the rights guaranteed to them by the Constitution.

Having heard the judge-speaker Danilyuk of Page E., speeches of plenipotentiaries of the President of the Republic of Belarus, Council of the Republic of National assembly of the Republic of Belarus, the House of Representatives of National assembly of the Republic of Belarus, Council of Ministers of the Republic of Belarus in the Constitutional Court, representatives of the Supreme Court of the Republic of Belarus, the Prosecutor General's Office of the Republic of Belarus, the Investigative Committee of the Republic of Belarus, Republican Bar, having analyzed provisions of the Constitution, the Code of penal procedure of the Republic of Belarus (further - the Code of Criminal Procedure) and other legal acts of the Republic of Belarus, having researched the submitted documents and other case papers, the Constitutional Court established.

1. It is provided in the Constitution that the person, its rights, freedoms and guarantees of their realization are the supreme value and the purpose of society and state (Article part one 2), and providing the rights and freedoms of citizens of the Republic of Belarus - the prime target of the state (Article part one 21).

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.

According to the Law of the Republic of Belarus "About legal profession and lawyer activities in the Republic of Belarus" any physical person and legal entity in the territory of the Republic of Belarus has the right to ask for legal aid the lawyer at the choice for protection of the rights and interests in courts, state bodies, other organizations which competence includes the solution of the appropriate legal issues, and before physical persons (Item 2 of Article 6); the court, state body, other organization or the official cannot refuse recognition of the right of the lawyer to represent the rights and the interests of the physical person or legal entity which asked for legal aid, except as specified, provided by legal acts (Item 3 of Article 17).

In the Code of Criminal Procedure it is determined that all persons who are involved in criminal trial are equal before the law and have the right without any discrimination to equal protection of their rights and legitimate interests; everyone has the right in course of production on materials and criminal case to legal aid for implementation and protection of the rights and freedoms, including the right to use in the cases and procedure provided by this Code, legal aid of lawyers and other representatives (parts 1 and 4 of Article 20); restriction of the rights and freedoms of persons who are involved in criminal trial is allowed only on the bases and according to the procedure, the established this Code (part 2 Articles 10).

However in the Code of Criminal Procedure there are no regulations which are directly affirming the right of the citizens who are witnesses to qualified legal aid though testimonies of the witness are important source of proofs, and failure to carry out of the provided Codes of Criminal Procedure of obligations by it can entail criminal liability.

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