The decision was made by the Constitutional Court after the appeal of the citizen A.Khvostik. The Belarusian Helsinki Committee helped to prepare the papers for the case.
Currently the Code of Criminal Procedure, which regulates the procedure for criminal cases with newly discovered circumstances, does not provide the possibility of a judicial appeal against the decision of the prosecutor to terminate such proceedings. Thus, people do not have the opportunity to exercise their right to a defense in court.
Before making a decision, the Constitutional Court requested the opinion of the Supreme Court, the General Prosecutor's Office, the Investigative Committee, the Ministry of Justice, the National Center for Legislation and Legal Research, and the Belarusian National Bar Association. Almost everyone spoke out in favor of expanding the right of citizens to judicial protection, except for the Ministry of Justice and the Supreme Court.
The Ministry believes there is no need for amendments, as currently any citizen can go to court directly on the basis of the Constitution and international legal acts - and the courts must consider such cases.
But the Supreme Court argues that the consideration of such complaints is the exclusive competence of the prosecutor's office. In their opinion such norm itself as the practice that the prosecutor’s decision to terminate the proceedings instituted by them due to the newly discovered circumstances can only be appealed to a higher prosecutor, is justified and complies with the principles of the criminal process. At the same time (based on the text of the CC decision), the Supreme Court does not justify how this approach complies with the principles of the criminal process.
So, there’s the decision of the CC. But making amendments takes time. Practice will show how the courts behave in this situation.
Let us remember that citizens cannot appeal directly to the Constitutional Court with the exception of the appeals presenting the problem of conflicts, gaps and legal uncertainty in the regulatory legal acts. We have prepared a practical guide that helps to understand the details of the procedure.
Previously within the framework of this procedure, after the appeal of the Belarusian Helsinki Committee to the Constitutional Court, the Code of Criminal Procedure secured the right of a witness to have a lawyer.