DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
the 17 of April, 2001 No D-114/2001
On procedure of formation of panel of People's assessors

The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.Z. Shuklin, has examined on the basis of Article 40 and part one of Article 116 of the Constitution motion of the Ministry of Justice of the Republic of Belarus on the procedure of formation of panel of People's assessors, found the following.

Under Article 113 of the Constitution of the Republic of Belarus cases before a court shall be tried collegially, and in the instances specified in law, by judges individually. According to Article 10 of the Criminal Code of Procedure of the Republic of Belarus (enforced since 1 April 1961 and effective till 1 January 2001) in all courts cases on the crimes which envisage imprisonment for the term of more than ten years or death penalty shall be subject to consideration collegially under first instance in the composition of a judge and two People's assessors.

Law of 13 January 1995 "On judicial system and status of judges in the Republic of Belarus" the institute of jurors has been introduced instead of the institute of People's assessors. According to Article 8 of the given Law the court shall be obliged to consider cases under first instance in the composition of a judge and of a panel of seven jurors on the crimes which envisage death penalty if the accused has not admitted his guilt and required no jurors (lay court). For the rest of instances criminal cases shall be subject consideration by a judge individually or in composition of three judges collegially. Provisions of the given Law in part of consideration of criminal cases by a court with participation of jurors had to be enforced since 1 January 2000.

Due to adoption of the Law "On judicial system and status of judges in the Republic of Belarus" there had to be made alterations in the Criminal Code of Procedure, however, there have been made no alterations and addenda into legislation of procedure on the specified issues. With the purpose of elimination of collisions between the Criminal Code of Procedure and the law in question Decree of the President of the Republic of Belarus of 3 February 2000 No. 4 "On collegial consideration of criminal cases in the courts" establishes that collegial consideration of criminal cases in all courts of first instance shall be carried out in composition of a judge and two People's assessors in accordance with the Criminal Code of Procedure. The Decree has become effective since 1 January 2000.

Article 32 of new CCP which has been enforced since 1 January 2001 establishes that collegial consideration under first instance in the composition of a judge and two People's assessors on the crimes where the criminal law stipulates imprisonment for more than ten years or death penalty as well as on juvenile crimes.

Thus, judicial system of Belarus has reserved the institute of People's assessors. At the same time, no relevant alterations and addenda into the Law "On judicial system and status of judges in the Republic of Belarus" have been made till now.

Procedure of forming of the composition of People's assessors shall be specified in Temporal provision on the procedure of approval of the lists of People's assessors June approved by Resolution of the Supreme Council of the Republic of Belarus of 7 June 1996 (hereafter - Temporal provision).

Temporal provision, in particular, envisages that People's assessors may be citizens of the Republic of Belarus who came of age 25, and People's assessors of militate courts - citizens of the Republic of Belarus who are on the active military list. While administering justice People's assessors shall exercise all the rights of a judge and shall perform the duties under CCP. Selection of the candidates and making the lists of People's assessors shall be carried out by the departments of judicature of oblasts executive committees, Minsk city executive committee for the term of five years on the basis of the voters' lists on elections to local or higher bodies of power from among citizens who constantly reside in the territory of a region, city, oblast. Lists of People's assessors of regions (cities), oblasts, Minsk city courts shall be approved by relevant regions (cities), oblasts, Minsk city executive committees. Lists of People's assessors of military courts shall be made for the term of five years and shall be approved by commanders of military units. Lists of People's assessors of the Supreme Court of the Republic of Belarus shall be approved by the Supreme Council of the Republic of Belarus under submission of the Chairperson of the Supreme Council of the Republic of Belarus. Making and approval of the lists of People's assessors instead of those removed from therefrom shall be carried out under the same procedure.

Having analyzed the provisions of the constitution, legislative acts regulating the issues of administration of justice, the practice of participation therein of People's assessors, the Constitutional Court has come to the conclusion, that a court, which is entrusted to consider and settle civil and criminal matters, shall be powerful to conduct genuine justice, if the court is lawful, competent, independent and impartial (Articles 60, 110, 111, 112 of the Constitution). That provision is based also on international instruments. According to part one of Article 14 of International Covenant on Civil and Political Rights in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

According to Article 59, 60 of the law "On judicial system and status of judges in the Republic of Belarus" judges shall be persons authorized to administer justice. Judges of all courts in the Republic of Belarus shall enjoy the same status. Peculiarities of the status of certain categories of judges may be specified in legislative acts of the Republic of Belarus. Point 46 of Article 6 of CCP judges shall be professional judges of any court an People's assessor. Thus, CCP shall mark out among judges professional judges and People's assessors who are nor professional judges.

Professional judge - is a judge who shall administer justice permanently and, therefore, may be appointed to the office under points 9 and 10 of Article 84 of the Constitution only by the President of the Republic of Belarus. People's assessors shall be authorized to be a judge only in instances when they are involving in consideration of the concrete criminal case.

Participation of citizens of the Republic of Belarus as People's assessors while administering justice on criminal cases is one of the forms of realization of power by people (Article 3 of the Constitution), the most important element of a democratic state ruled by law, additional guarantee of protection of the rights and lawful interests of participants of the criminal proceedings.

The Constitutional Court emphasizes that People's assessors while administering justice shall enjoy all the rights and bear the duties of a judge (to perform the duties of a judge, to preside at all stages of the proceedings, to draw up documents etc.), and , therefore, the issue on legal ground of the composition of People's assessors shall have decisive significance for ensuring constitutional principles of justice.

The Constitutional Court deems that the issue on legal status of People's assessors should specified in law. That conclusion is based on the provisions of Articles 109 - 112 of the Constitution which shall enshrine, in particular, that judicial system in the Republic of Belarus shall be determined by the law; in administering justice judges shall be independent and subordinate to law alone; the grounds for electing (appointing judges and their dismissal shall be determined by law.

The Constitutional Court pays attention to the fact that proceeding from effective procedure for approval of the lists of People's assessors, as well as from the requirements of the Constitution, performance of duties of a professional judge by People's assessors shall be possible only under the observance of the constitutional norms about appointing of judges by the President of the Republic of Belarus.

Based on the aforestated and guided by Article 40, part one of Article 116 of the Constitution, by Articles 7, 36, 38, 40, 401 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court

RULED:

1. To note, that for the purposes of observing the constitutional principles of justice and realization of Article 60, points 9 and 10 of Article 84, Articles 109-115 of the Constitution the issues of formation of the panel of People's assessors, securing of their legal status in administering justice shall be determined by law.

Admission of a People's assessor to perform the duties of a professional judge shall be possible only under decision of the President of the Republic of Belarus with the requirements of the Constitution and the laws taken into account.

2. To propose the National Assembly of the Republic of Belarus to make alterations and addenda into the Law "On judicial system and status of judges in the Republic of Belarus" and into other enforceable enactments with the purpose of proper legislative regulation of the procedure of formation of panel of People's assessors and elimination of existing collisions in effective legislation.

3. The present Decision shall come into legal force from the date of its adoption.

4. To publish the present Decision in accordance with effective legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich

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