First Constitutional Court Ruling on Individual Constitutional Complaint in Belarus Published
The Constitutional Court of Belarus has published its first rulingfollowing the consideration of an individual constitutional complaint regarding the constitutionality of a law. This was noted by our colleagues from the Rule of Law for Belarus Legal Club, who reported it on their Telegram channel.
The ruling is available on the Constitutional Court’s website [generally accessible with a VPN] and is currently the only document in the relevant section (Constitutional Court Acts). It is dated October 31, 2024, and based on its case number (No. O-1/2024), it indeed appears to be the first ruling issued under the procedure for reviewing the constitutionality of laws based on individual citizen complaints. (We previously discussed the mechanism in our article, Constitutional Complaint in Belarus: Is It Possible to File One, and Does It Make Sense?). The judge-rapporteur for the complaint (if this term may be applied in the Belarusian context) was Judge V. Ryabtsev, likely due to the complaint concerning a provision of the Economic Procedural Code.
[On December 20, 2024, at 3:30 PM CET (5:30 PM Minsk time, 4:30 PM Vilnius time), our colleagues from the Rule of Law for Belarus Legal Club will host a webinar titled "How to Determine if a Law Contradicts the Constitution? Preparing and Submitting a Complaint to the Constitutional Court of Belarus."Registration link is provided.]
It should be noted upfront that this initial review of a constitutional complaint was not fruitful. This does not mean the Court confirmed the constitutionality of the law or disagreed with the arguments of the complaint. Instead, the case was not heard on its merits because the complaint was deemed inadmissible. The Court determined that the complainant essentially challenged a legal provision that does not restrict constitutional guarantees and rights but rather expands them, providing additional protections. In this case, the contested provisions were the second paragraph of Part 2 of Article 319 of the Economic Procedural Code and Article 60 of the Constitution. The complainant de facto sought a review of how the legislation was applied by the economic court.
While we do not have access to the full case materials, the Court’s reasoning, as described in the ruling, appears justified. The Constitutional Court’s role is not to review decisions or re-evaluate evidence but to assess the constitutionality of legal provisions. This distinction has been a recurring theme in our previous materials.
Series of articles on constitutional complaints (available in Russian):
Firstly, one of the undeniable positive outcomes of this ruling is how the Court addressed the issue of whether individual entrepreneurs can file constitutional complaints, including in cases arising from their business activities. The Court did not shy away from making this determination (though it declared the complaint inadmissible on other grounds) and established that individual entrepreneurs can indeed be subjects eligible to submit complaints to the Constitutional Court:
"The foregoing provides grounds for asserting that citizens have the right to file constitutional complaints with the Constitutional Court to protect their violated constitutional rights and freedoms, including in connection with their individual entrepreneurial activities. Furthermore, when seeking protection of constitutional rights and freedoms that they believe have been violated by a law applied in a specific case, the status of the citizen as an individual entrepreneur, as well as the type of judicial proceedings in which the law’s constitutionality is in question, is irrelevant."
Secondly, another notable strength of this ruling is its "educational and explanatory" component. After determining the complaint was inadmissible, the court took the opportunity to explain that the complainant was essentially challenging the application of legislation by the court in a specific case, rather than the constitutionality of a particular law. At its core, the complaint reflected disagreement with the court's decision and an attempt to seek additional review in yet another forum. Indeed, for lawyers and attorneys drafting constitutional complaints on behalf of their clients, it is crucial to temporarily set aside their experience drafting appeals and cassation complaints. Instead, they must learn to frame their clients' requests through the lens of human rights, focusing on mechanisms of limitation and the protection of those rights.
Unfortunately, this ruling does not resolve some of the issues arising from the provisions of the law. Recall that the provisions of the Law of the Republic of Belarus on Constitutional Proceedings regarding constitutional complaints apply only to laws and other normative legal acts that were applied in specific cases after October 1, 2023. However, the text of the law does not clarify what is meant by "applied in a specific case" — whether it refers to application in the first instance, on appeal, in cassation, or during any judicial review. At the time, our project anticipated the emergence of case law to address this ambiguity.
In the complaint under review, the contested judicial act was a November 29, 2023, decision of the Mogilev Regional Economic Court refusing to reopen a case based on newly discovered circumstances. Thus, this ruling provides no clarity on the date of such application. Evidently, the consideration of a judicial act issued in the first instance after October 1, 2023, does not resolve the question of whether facts related to the application of legislation before this date are subject to review.
Another nuance worth noting is a peculiar provision added to the legislation on constitutional proceedings, stating that the Constitutional Court must reject a case if it has previously issued a conclusion or decision on the issue raised in the complaint, provided that the relevant constitutional norms or other legislative acts on which the Court’s decision was based have not been amended or repealed in the interim. In this case, no prior conclusions or decisions exist, so this ruling does not preclude the submission of further complaints concerning the constitutionality of the second paragraph of Part 2 of Article 319 of the Economic Procedural Code.
Technical aspects of the ruling
As it stands, the Constitutional Court is publicly sharing its rulings. For instance, if the numbering of this ruling had not started with "1," it would suggest a different scenario. For now, there is every reason to believe that this is indeed the first and only ruling currently available.
The ruling includes the full name of the complainant, as well as substantial details about the parties involved in the case — such as which court reviewed it, the nature of the complaint, and the parties to the specific matter. However, the complaint itself has not been published, or at least, we were unable to locate it.
What to expect moving forward
As our project has repeatedly noted, we are fully aware of the likely nature of most Constitutional Court responses to substantive complaints that genuinely touch upon human rights, which are currently under particular threat. We understand the largely performative nature of such mechanisms’ introduction. Nonetheless, we believe it is essential to use every available legal tool to protect human rights and freedoms.
We remain optimistic that Belarus, despite its current trajectory, will one day become a state governed by the rule of law. Lawyers and attorneys, by the nature of their profession, are obligated to use the law and its instruments at the request of their clients — and in some cases, to inform clients of the availability of such tools. Furthermore, the process of drafting constitutional complaints is an excellent exercise in understanding human rights mechanisms and their limitations.
The more people within the current system understand that ignoring the rule of law is a dead end, the brighter the future will be. We encourage our colleagues to actively make use of this new tool, given that the state has formally acknowledged the possibility of laws being unconstitutional.