2008 24/10

Mihal Pastuhoǔ (Biełarus`)Here is an expert’s report by J.D. Professor Mikhail Pastukhou, Honoured Lawyer of the Republic of Belarus and ex-Chaiman of the Constitutional Court, concerning Barys Zvozskau’s Constitutional claim.

Expert Opinion on the validity of B.Zvozskau’s claim to the Constitutional Court of the Republic of Belarus pertaining to the issue of constitutionality of certain provisions of the ‘Law on Public Associations’

1. The topicality and social significance of the issue

The claim deals with a most vital issue – the procedures of creating a public association in Belarus. According to Barys Zvozskau, the legal regulations of the procedures include a number of provisions, which unfairly restrain the right of citizens and non-citizens (foreigners and stateless persons) to the freedom of association. The claim provides a list of the alleged restrictions and questions the validity of the relevant provisions of the Law, contravening their compliance with the Constitution of the Republic of Belarus and the International Covenant on Civil and Political Rights.

The issue under analysis is of great social importance, since it pertains to the emerging and the existing public associations alike. The positive decision concerning the claim may contribute to the formation of a milder legal climate for the work of public associations.

2. The ability to state the case

The case relatively well-stated. Apart from that, the claim names the provisions of the ‘Law on Public Associations’ to be examined for constitutionality, as well as the provisions of the Constitution to be taken into account when considering the claim.

3. Argumentation rules

The stance of the applicant is well-reasoned. While stating the case, B.Zvozskau makes use of a number of logical modes, refers to the Belarusian legislation and shows their possible effect.

4. The argumentation of the conusance of the Constitutional Court of the Republic of Belarus pertaining to the claim

The claim is based on the reference to Article 40 of the Constitution of the Republic of Belarus, which provides that ‘everyone shall have the right to address personal or collective appeals to state bodies.’

Since citizens are not subjects authorized to address the Constitutional Court, they can demand the state body to adequately react to their claim.

The decision seems to be quite sensible under the existing regulations. It may urge the Constitutional Court to take adequate measures to maintain the constitutional course of law.

5. Referring to international provisions and judicial practice

The claim refers to certain provisions of the International Covenant on Civil and Political Rights (Articles 2, 5, 22). Still, the complainant fails to provide examples from judicial practice, which appear to be a significant flaw of his argumentation.

* * *

Considering the above-mentioned analysis, B.Zvozskau’s claim to the Constitutional Court of the Republic of Belarus is well-reasoned and professionally executed. It refers to provisions of the Belarusian legislation and international acts.

At the same time, it should be observed that the claim does not associate with a specific life situation and is not supported by judicial practice and is therefore relatively abstract.

Guided by the above-mentioned criteria, the claim under analysis can be assessed with 7 points out of 10.

Considering that the claim may be implemented through submitting it to the Constitutional Court of the Republic of Belarus, the assessment can be increased by 5 more points.

Expert:

J.D., Honoured Lawyer of Belarus,

Professor M.Pastukhou

Tags: , , ,

Leave a Reply

Your email address will not be published. Required fields are marked *


*

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>