2016 15/06


The need for interaction between civil society and governments to improve legislation for the prevention and avoidance of additional problems again becomes clear and obvious.

Development and introduction in Parliament of proposals for changes in legislation became particularly relevant after the recent decision of the Constitutional Court of the Republic of Belarus in May on the actual adding to the existing list of administrative penalties the penalty on “suspension of activities of legal entities and individual entrepreneurs”.

Lawyers and citizens are concerned that in the current situation of the administrative process in our country, the proposed changes in the legislation are not quite timely. They can lead to a significant deterioration in economic conditions, growth of bureaucratic abuse and corruption.

The existing administrative punishment in the form of “deprivation of the right to engage in certain activities” – fully meets the goals “suspension of activities”, if it is used in a reasonably short period of time or until the elimination of the causes of wrongful conduct.

In this regard, it would be advisable for civil society to prepare and submit specific proposals to the government (see. below).

The essence of the decisions of the CC and the possible consequences

 

On May 25, 2016 the Constitutional Court of the Republic of Belarus has adopted the decision № P-1034/2016 “On legal regulation of the suspension of the activities of legal entities and individual entrepreneurs” 1.

This solution is made to eliminate the existing legal gap in the administrative process, if the body which conducts the administrative process, is forced to apply such a measure as prohibition to perform certain acts or to carry out an activity in connection with the existing administrative offences that don’t stop.

For example, the identified violations of fire safety onsite or sanitary regulations on public catering, which cannot be removed once or have a long-term nature – for example, the company of catering, that have rodents, and imposition of penalty to the administration of the company will absolutely not affect rodents which brought the infection, and continue to bring it.

Orders to eliminate the causes of crime (which a violation of the sanitary regime is) not always are carried out, and the penalties imposed for failure to comply with regulations do not contribute to sanitary situation.

In addition, in some cases, implementation of the normal course of business enterprises and entrepreneurs doesn’t give an opportunity to discover following offenses and conducting administrative proceedings.

For example, on a construction site there was an accident caused by a violation of safety regulations, and the further conduct of the construction doesn’t give the possibility to investigate the circumstances and causes of the incident.

Thus, it would be quite fair to introduce mesures on the temporary suspension of activities in the procedural law of administrative offenses as a measure to ensure administrative process 2.

At the same time, the Constitutional Court considers that there is the need to eliminate legal errors in the legal regulation “suspend the activities of legal entities and individual entrepreneurs”, even through the establishment of the Administrative Code of administrative responsibility for violation of the law.

In other words, to the existing list of sanctions – such as fines, seizure, confiscation and other 3 more will be added – “the suspension of the activities of legal entities and individual entrepreneurs”.

 

Untimeliness and problematic of innovations implementation

 

It appears that the proposed legislation is not fully timely taking into account the current situation of the administrative process in our country.

In accordance with the Procedural-Executive Code of Administrative Offences, 78 legal bodies have the right to manage the administrative process, and 30 bodies to consider administrative cases. At the same time, the quality of conducting the administrative process and the consideration of cases, maintaining the rights of the person against whom the administrative process is carried on, are lame on both knees – the evidence of which are the repeated appeals against Belarus to the United Nations Human Rights Committee.

In this situation, the introduction of yet another variety of administrative penalty may result multi-million dollar losses by business entities, whose activities will be suspended by the decree, which will later be recognized as legitimate, even after multi-stage cassations and without sufficient reasons.

 

Options for preventing possible negative consequences

 

Deprivation of the right to be engage in certain activities is kind of an administrative penalty and fully meets the goals of suspension of activities, on condition that the penalty will be applied to the reasonably short period of time or until the elimination of the causes of wrongful conduct.

At the same time, “the introduction of the suspension of activities as a measure to ensure the administrative process” seems to be quite reasonable and timely measure,

unless the powers of supervisory bodies to prohibit activities and operation of the facility will be excluded from the legislation on the activities control.

Indeed, for all its inaccuracy, the procedural law on administrative offenses, yet operates in a specific legal field, which is regulated by the Code and cannot be interpreted arbitrarily.

 

The need for specific proposals for legislative changes

 

The Constitutional Court in its decision invites the Government to prepare a draft law on amendments and additions to the Code of Administrative Offences, Procedural-Executive Code of Administrative Offences and other acts of legislation related to the legal regulation of “suspension of activities of legal entities and individual entrepreneurs” and make the document prepared in accordance with established procedure in the parliament.

In this regard, it would be appropriate to prepare and submit the proposals to the government from civil society to improve the legislation in the sphere of enforcement describedthe introduction of the institute of suspension of activities of legal entities and individual entrepreneurs in the cases of administrative offenses in order to:

1. – set a closed list of bodies entitled to apply this measure to ensure the administrative process;

2. - not to introduce this measure as an administrative penalty, limiting to remain a measure of ensuring the administrative process;

3. – enter all the powers of supervisory authorities for making decisions and regulations that restrict, prohibit or suspend the activities of the subjects in the legal field of Procedural-Executive Code of Administrative Offences;

4. – save option of injunction of an activity according to Art. 7 of Civil Procedure Code 4 of the Republic of Belarus – by the court in civil proceedings.

Consistent and active civil society action in promoting positive changes in the law may appear necessary contribution that each can make in building a democratic state and strengthening the rule of law.

 

Siarhiej Mahonaŭ,
Lawyer, educational project BISH program ILIA Human Rights House Network graduate,
specially for the Belarusian Legal Portal (BLP),
www.prava-by.info
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1. http://pravo.by/main.aspx?guid=12551&p0=K91601034&p1=1
2. Art. 8.1 EPC provides for the following measures to ensure administrative process:

1) administrative detention of an individual;
2) personal search a detainee;
3) seizure of property;
4) seizure of objects and documents;
5) detention and forced towing (evacuation) of the vehicle;
6) ban from vehicle control;
6.1) blocking the wheels of the vehicle;
7) reconduction;
8) removal from the premises, in which the administrative proceedings take place.

2. With regard to a legal entity the following measures to ensure the administrative process can be applied:

1) seizure of documents and property belonging to a legal entity;
2) seizure of goods, vehicles and other property owned by a legal entity.

3. Art. 6.2 of the Administrative Code provides the following administrative penalties:

1) warning;
2) fine;
3) correctional labor;
4) administrative detention;
5) deprivation of a special right;
6) deprivation of the right to engage in certain activities;
7) withdrawal;
8) deportations;
9) cost of recovery.

 

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