Reform of the Judicial System in the Tradition of ‘Cosmetic Repairs’

Oleg Fedotov

Summary

The nature of the reform of judiciary institutions reflects the ongoing intervention of the executive branch in what used to be entirely an area of responsibility of the legislature, and this process has been going on since 2008. The reform of the judicial system of 2013-2014 was carried out without any inputs on the part of society or democratic institutions. The law on constitutional proceedings adopted in 2014 did not result in substantial improvements in the field of protection of rights and freedoms of individuals and organizations. Proceedings on the elimination of legal uncertainty in normative legal acts (know-how of Belarusian lawmakers) thus cannot be considered an adequate tool, which citizens could use to protect their rights in the Constitutional Court.

Trends:
Background 1

Evolution of the judicial system in Belarus. The evolution of the judicial system in Belarus can be divided into two main stages. The first one was when the Constitution of 1978 (amended and revised) and the Constitution of 1994, which established a parliamentary republic with a Supreme Council (parliament) entitled to shape the judicial machinery and form courts, were in force. 2

The second stage began when the amendments to the Constitution of 1994 adopted as a result of the referendum of November 24, 1996 entered into force. Although the organization of courts, as well as the structure, operating procedures and terms of reference of the Constitutional Court is still determined by law, the upper chamber of the National Assembly is only partially involved in the formation of the senior courts of Belarus. The terms of reforming of the judiciary system by law alone set in Soviet times and abided by in the years of independence were broken in 2008, when the competence of the Constitutional Court was expanded by a presidential decree. The latest innovation was repeated in 2014 with presidential decree No. 6 and ordinance No. 529 of November 29, 2013, which changed the judicial system in Belarus.

Constitutional Justice. Since the adoption of the Constitution of 1994, the Belarusian legal system did not stipulate the right of constitutional complaint. This had not posed a problem before the constitutional referendum of 1996: the Constitutional Court formed by the Supreme Council of Belarus had the power to examine any regulatory act issued by a governmental agency or non-governmental organization, or any international treaty or other obligations of Belarus to establish their constitutionality. Such examination could also be initiated by 70 or more members of the multi-party (including the opposition) Supreme Council, standing committees of the Supreme Council and its chairperson, a prosecutor general elected by the parliament, the president and senior courts. It should be noted that the Law on the Constitutional Court of the Republic of Belarus of March 30, 1994 and the Constitutional Court Regulations of May 27, 1994 already provided indirect access to constitutional justice, specifically the right of governmental agencies, non-governmental organizations and individuals to address the entities named above (including the president and senior courts) with a request to verify the constitutionality of regulatory acts and international obligations of Belarus.

The Constitution of 1996, which was de facto a new one, changed the list of agencies able to initiate a constitutional examination: the president remains the only entity, which is not a collegial body. Members of the National Assembly now only execute their right to initiate constitutional examinations through their chambers, one of which (the upper chamber called ‘the Council of the Republic’) is not accountable to citizens and participates in formation of the Constitutional Court, which is excluded from the list of possible initiators of constitutional examinations.

Another option of the access of organizations and individuals to constitutional justice was added to the Constitutional Court Regulations of September 18, 1997 on June 11, 2011: appeals of organizations and individuals may be examined on the basis of paragraphs 40, 112, 122 and other sections of the Constitution and laws of Belarus by a decision of the Constitutional Court (paragraph 43-1). Although the Constitutional Court delivered quite a number of judgments in compliance with these Regulations, it makes no sense to take a closer look at this mechanism, because it is obvious that paragraph 43-1 establishes a right, rather than an obligation (i.e. gives discretionary powers). The Code of the Republic of Belarus on the Judicial System and the Status of Judges No. 139-З of June 29, 2006 thus backs it up saying that appeals filed directly to the Constitutional Court shall be considered in the manner prescribed by the Law on Appeals of Individuals and Legal Persons (paragraph 22), i. e. this is not about constitutional complaints either.

Legal ground of the judicial reform: Convenience vs. the rule of law

Like the 2008 reform of the Constitutional Court, the reform of courts of general jurisdiction of 2014 was carried out by means of presidential regulatory legal acts without regard to the provisions of paragraphs 109 and 116 of the Constitution on the application of relevant laws. 3 Constitutional Court Chairman Pyotr Miklashevich said commenting on the expansion of the competence of his court in 2008 that a decree was the most resilient kind of a normative legal act when it comes to the ways of its adoption and amending, which guarantees its quick revocation, modification or amending. 4 As a result, decree No.14 of June 26, 2008 was signed into law as late as in 2014 when the Law on Constitutional Proceedings in the Republic of Belarus No. 124-З of January 8, 2014 (National Register of Legal Acts, 2/2122, January 16, 2014), which receipts provisions of the decree, came into force.

Decree No. 6 On the improvement of the judicial system of the Republic of Belarus, ordinance No. 529 On some points related to activities of courts of the Republic of Belarus and ordinance No.530 On some points related to the improvement of the organization of execution of court rulings and other writs of execution issued on November 29, 2013 and effective since January 1, 2014 have not been implemented de jure either. It is to be noted in this regard that the House of Representatives has not aired the bills on court enforcement proceedings, and no one knows what will happen to the bill, which implements decree No. 6 and ordinance No. 529.

The future of the referendum, which could alter the Constitution among other things by excluding the mentioning of the Supreme Economic Court, its judges and chairpersons, also remains unclear. In any case, the referendum should be held before the 2015 presidential election, because, according to the current wording of paragraph 83 of the Constitution, a newly elected president is supposed to take the oath of office in the presence of (among others) judges of the Supreme Economic Court, otherwise (Supreme Economic Court judges were not present at the event on January 1, 2014) the legitimacy of the president may be contested. The very idea to carry out a reform first, and ask for the public opinion afterwards does not differ much from the application of the legal act, which changes the judicial system disregarding the fact that the Constitution says nothing about that.

Judicial reform stakeholders: Not only civil society

Transparency of a reform of a governmental agency is an objective indicator of the government’s attitude to civil society institutions. The reform of the Belarusian judicial system in 2014 clearly demonstrated that the state considers the opinion of society, non-governmental organizations and experts irrelevant. The normative legal acts aimed at the implementation of the reform published on November 29, 2013 and effective since January 1, 2014 were adopted without a discussion with anyone except some governmental agencies and officials. 5

This year’s judicial reform is carried out in two stages. The first one began with decree No.6 and decrees No. 529 and 530 of November 29, 2013. The second stage began with their signing into laws and amendments to the Constitution (the Supreme Economic Court is not mentioned there anymore). Only the implementation of decree No.530, pursuant to which the House of Representatives was supposed to consider bills on court enforcement proceedings and the status of judicial enforcement agents prepared before October 1, 2014, (paragraph 17.3.), raises no objections. Both bills were actually developed and put on the database of the National Legal Internet Portal of the Republic of Belarus in the autumn of 2014. The basic statistics concerning these bills was also posted on the website of the House of Representatives.

Somewhat different is the situation with the implementation of decree No.6, pursuant to which the National Center for Legislation and Legal Research and the Supreme Court were supposed to work out and submit to the president a bill on amendments to the Law on the Judicial System and the Status of Judges (paragraph 12) by December 1, 2014. The future and the content of this bill are unclear yet. As follows from the wording of decree No.6, from the very beginning, the government did not plan to request any kind of democratic institutions’ input.

Lawmaking activities of the united Supreme Court aimed at replacement of normative legal acts issued by the Ministry of Justice of Belarus and declared nullified after the Supreme Court was given the power to monitor actions of courts of general jurisdiction, as well as their staffing, technical, financial, administrative and organizational provisions since January 1, 2014, were far from being transparent. So far, nothing is known about the replacement of a number of canceled decrees of the Ministry of Justice related to the rights and freedoms of individuals and organizations in the field of the access to information about activities of the courts, personal appointments with senior officers, personnel rearrangements in judicial offices, etc. At the same time, the diligence of the Supreme Court’s press office in 2014 in increasing awareness of high-profile cases should not go unnoticed, although the content of the Supreme Court’s website and the regularity of updates are totally inadequate to the status of the Court unlike the similar websites in the neighboring states.

Direct access to constitutional justice: Inaccessible

Although the Constitutional Court can lawfully avoid examination of complaints filed by individuals and passing judgments on them, Belarusian policymakers continue debates on the relevance of the full-scale institution of constitutional complaint. There are two types of arguments in favor of maintaining the status quo in the legislation on constitutional proceedings:

  1. constitutional complaint heavily overburdens the Constitutional Court (as it happens, for instance, in Romania, Hungary, and Russia);
  2. other countries had also been preparing for the introduction of constitutional complaint for decades (e. g. Turkey). 6

Nonetheless, lawyers, human rights activists and NGOs have great expectations of the Law on Constitutional Proceedings No. 124-З of January 8, 2014.

Firstly, the law particularly determines the initiative appeal and formalizes the general rules of its submission to an authorized agency and its consideration by such agency at the level of a specific chapter (the 5th). In 2014, in response to an initiative appeal by T.I. Belyasova, The House of Representatives addressed the Constitutional Court requesting to verify the constitutionality of several provisions of the Criminal Procedure Code. The Constitutional Court passed judgment (i.e. an act having the force of the Constitution) No. З-928/2014 of June 12, 2014, which it had not done since September 12, 2007. The House of Representatives certainly could not ignore this event. “There was a lot of debate. Why not a direct appeal? Why through authorized agencies? By the example of the appeal by Mrs. Belyasova, the rules of indirect appeal are applied in practice now,” said the MPs. 7

However, neither the adoption of the Law on Constitutional Proceedings (in the respective part), nor the said judgment give grounds for optimistic conclusions. Firstly, the authorized agency used the initiative appeal 20 years after the relevant legal act mentioned the possibility of such deed. Secondly, according to the Constitutional Court’s annual addresses regarding the constitutional legitimacy in the past year, authorized agencies receive no less than a hundred of initiative appeals every year. Thirdly, both chambers of the parliament still have not implemented ruling No. Р-317/2009 of the Constitutional Court of March 26, 2009 and ruling No. Р-318/2009 of March 26, 2009, which recognized the need to determine the procedure of “examination of appeals, which request verification of constitutionality of normative legal acts, in the chambers’ rules.” Among all authorized agencies (in accordance with paragraph 116.4 of the Constitution), only the Council of Ministers amended its rules (pursuant to ruling No. Р-319/2009 of the Constitutional Court of March 26, 2009) to formalize the detailed requirements to initiative appeals and the procedure of their examination.

It should be noted that the content of the ruling of June 12, 2014 largely repeats the reasoning of the earlier ruling No. 16-P of the Constitutional Court of the Russian Federation dated July 14, 2011, which suggests a hypothetical possibility for the House of Representatives to refuse to implement Belyasova’s initiative appeal if the Constitutional Court of Russia had not created a precedent.

Secondly, Chapter 24 of the law establishes the rules of procedure for the cases on the elimination of gaps, conflicts and legal uncertainty in regulatory legal acts, a verbal interpretation of which would suggest the introduction of a truncated constitutional complaint:

  1. an individual or organization shall submit an appeal directly to the Constitutional Court;
  2. all appeals filed under Chapter 24 of the law are considered without exception;
  3. rulings handed down following a consideration of appeals filed under Chapter 24 of the law by the Constitutional Court constitute regulatory legal acts subject to enforcement by governmental agencies.

But this mechanism has failed as well. According to Alexei Kozlyuk, lawyer of the Legal Transformation Center Lawtrend, in 2014, the Constitutional Court received 43 appeals filed under Chapter 24 of the law. 8 Only three judgments passed by the Constitutional Court in proceedings on the elimination of legal uncertainty were given publicity, though.

The provisions of Chapter 24 and their application indicate the presence of legal uncertainty in the law itself, which actually allows the Constitutional Court choosing ‘convenient’ cases. For example, the court did not agree to hear any of the appeals filed by human rights defenders (the Belarusian Helsinki Committee, Harry Pahanyayla, Leonid Markhotko, founders of the new Republican Human Rights Public Association Pact) on gender equality, equality of the official languages of Belarus and the meeting of the requirements of the United Nations Human Rights Committee. 9 The said applicants were given reasoned answers, while other persons’ appeals filed beyond the scope of professional advocacy without media highlights remained unanswered. 10

The provisions of Chapter 24 do not define legal uncertainty, gaps and conflicts thus imposing the risk of misinterpretation of these terms on the applicants. The provisions do not oblige the Constitutional Court to explain reasons for a refusal to satisfy petitions under Chapter 24 allowing keeping true reasons undisclosed, and do not set a strict deadline for proceedings, which makes it impossible for an applicant to see a perspective and work out a strategy. As a result, it can neutralize any ‘inconvenient’ initiative coming from civil society.

Conclusion

Having assumed the parliament’s direct authority to reform the judicial system, the executive branch has been executing this power since 2008. The head of state thus solely determines the speed of implementation of decrees and ordinances as laws.

The nature of the 2014 judicial reform shows the government’s unwillingness to treat civil society institutions as partners and contributors. The public receives information about the judicial reform post factum, and this trend continues.

In 2014, the Supreme Court was far from being truly transparent when it came to certain categories of publicly significant information.

The Law on Constitutional Proceedings does not give individuals either a better possibility to protect their rights and freedoms, or a real and effective tool to protect their rights and freedoms directly through the Constitutional Court. The indirect access to constitutional justice and proceedings on the elimination of legal uncertainty remain totally dependent on the willingness of the authorized agencies and the Constitutional Court to institute an action.