SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of February 18, 2009 No. P-315/2009

About equal conditions of release from compensation of the means spent by the state for training of the young specialist

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Miklashevich P. P., the vice-chairman Maryskin A. V., Boyko T. S. judges., Danilyuka of Page E., Izotko V. P., Kozyrevoy L.G., Podgrusha V. V., Sergeyeva O. G., Tikovenko A. G., Chigrinova S. P., Shuklin V. Z. considered the address concerning legitimacy of the requirement of organization of formation of the Republic of Belarus about compensation of the means spent by the state for training of the specialist in connection with absence of the young specialist for work on distribution.

In the address it is noted that the legislation of the Republic of Belarus establishes unequal conditions of release of the young specialists who got secondary vocational education by budget funds and enlisted in organization of education on training in day form of education of higher level from discharge of duty to compensate in the relevant budget the means spent for their preparation in case of absence from work on distribution, depending on that, this organization of formation by organization of the Republic of Belarus or other state is (in particular, the Russian Federation).

Having analyzed provisions of the Constitution of the Republic of Belarus, international legal acts ratified by the Republic of Belarus, the laws of the Republic of Belarus "About education", "About international treaties of the Republic of Belarus", the Presidential decree of the Republic of Belarus of February 7, 2006 No. 80 "About Regulations of Admission in the highest and average special educational institutions", Regulations on compensation of means in republican and (or) the local budgets spent by the state for training of working (employee), the specialist approved by the resolution of Council of Ministers of the Republic of Belarus of September 23, 2006 No. 1255, of other regulatory legal acts of the Republic of Belarus relating to the researched question, the Constitutional Court established the following.

Equality of all before the law and the right of all without any discrimination on equal protection of the rights and legitimate interests are enshrined in article 22 of the Constitution.

The constitution assigned obligation to the state to take all measures available to it for creation of the internal and international procedure necessary for complete implementation of the rights and freedoms of the citizens of the Republic of Belarus provided by the Constitution (Article part one 59).

According to article 49 of the Constitution everyone has right to education. Availability and free of charge general average and vocational training are guaranteed. Secondary vocational and higher education is available to all according to capabilities of everyone. Everyone can get free of charge on competitive basis the corresponding education in the state educational institutions.

The regulation of article 49 of the Constitution found specification and development in the Law "About Education" (further, unless otherwise specified, - the Law). According to article 1 of the Law state policy in the field of education is based including on the principle of availability preschool, professional and on competitive basis of secondary vocational and higher education. It is provided in article 3 of the Law that each citizen of the Republic of Belarus has the right to education; restrictions of the rights to education can be set only by the law. The right to free general average, professional and on competitive basis of free secondary vocational and higher education in organizations of education is guaranteed to citizens of the Republic of Belarus.

Guaranteeing the right on free, at the expense of means republican and (or) local budgets, professional, secondary vocational and higher education, the Law provides obligation of the graduates studying in day form of education at the expense of public funds in the organizations providing professional, secondary vocational and higher education to fulfill the term established in the Law on distribution, and in case of non-execution of this obligation - to compensate in the relevant budget the means spent for their preparation (parts the twelfth or fourteenth article 10 of the Law).

The procedure and conditions of compensation of the means spent by the state for training of working (employee), specialist, and also the basis for release from compensation of the specified means are established by the Government of the Republic of Belarus (part fifteen of article 10 of the Law).

In pursuance of the above-named article of the Law the resolution of Council of Ministers of the Republic of Belarus of September 23, 2006 No. 1255 approves Regulations on compensation of means in republican and (or) the local budgets spent by the state for training of working (employee), specialist (further - the Provision) in whose item 4 the bases of release of working (employee), the specialist from compensation of the specified means are provided. One of such bases established by the paragraph the tenth subitem 4.1 of item 4 of the Provision is transfer of person who got professional or secondary vocational education (further - the young specialist), in organization of formation of the Republic of Belarus on training in day form of education of higher level.

Thus, revenues to day form of education of higher educational institution of the Russian Federation owing to the paragraph of the tenth subitem 4.1 of item 4 of the Provision are not the basis for release of the young specialist from compensation of the means spent by the state for its training in organization of formation of the Republic of Belarus.

The Republic of Belarus and the Russian Federation, based on the Agreement on the Union of Belarus and Russia of April 2, 1997 and developing its provisions for the purpose of further rapprochement of the people and ensuring efficient integration in different spheres of the state and public life, on December 25, 1998 signed the Contract between the Republic of Belarus and the Russian Federation on the equal rights of citizens in which article 4 undertook to provide availability and the equal rights of citizens in receipt of secondary, secondary vocational, higher and postgraduate professional education. Education documents, academic degrees and ranks owing to the prisoner earlier, on February 27, 1996, Agreements between the governments of two countries are recognized both states and are equivalent in the territory of Belarus and Russia in case of continuation of education and in case of revenues to work according to the specialty and qualification specified in them.

However owing to the paragraph of the tenth subitem 4.1 of item 4 of the Provision arrival of citizens of the Republic of Belarus in educational institutions of the Russian Federation is not the basis for release them from compensation of the means spent for training in organizations of formation of the Republic of Belarus and with respect thereto availability of education in organizations of formation of the Russian Federation, and also the right to the corresponding education, equal with others, can be not provided.

At the same time, according to article 33 of the Law "About International Treaties of the Republic of Belarus", parts two and the fourth article 55 of the Law "About Education" of the rule of law, containing in the international treaties which became effective in the territory of the Republic of Belarus are part of the legislation existing in the territory of the Republic of Belarus, are subject to fair execution by the Republic of Belarus according to international law and to direct application, except cases when follows from the international treaty that application of such regulations requires acceptance (edition) of interstate regulatory legal act, and are valid that regulatory legal act which expresses the consent of the Republic of Belarus to obligation for it the corresponding international treaty. The Republic of Belarus provides execution of undertaken obligations according to international treaties of the Republic of Belarus in the field of education.

The given normative provisions will be approved with the regulations of article 8 of the Constitution which proclaimed priority of the conventional principles of international law and need of ensuring compliance it legislations, and also article 26 of the Vienna convention on the right of international treaties of May 23, 1969 according to which each current agreement is obligatory for his participants and shall be carried out by them honesty.

In view of regulations of the Constitution of the Republic of Belarus, the Contract between the Republic of Belarus and the Russian Federation on the equal rights of citizens of December 25, 1998, other international treaties, and also the laws of the Republic of Belarus, the Constitutional Court considers that in paragraph ten of subitem 4.1 of item 4 of the Provision unequal conditions of release of the young specialists who received for the account of means republican and (or) local budgets professional or secondary vocational education and enlisted in organization of education on training in day form of education of higher level from execution are established by the provided part fourteen of article 10 of the Law "About Education" of obligation to compensate the means spent by the state for training because only young specialists enlisted in the relevant organization of formation of the Republic of Belarus are exempted from such compensation. As the legislation provides need of ensuring availability and the equal rights of citizens for education, including the highest, proceeding from the principle of equality of all before the law, these rights shall be fully considered in case of realization and provision of guarantees for protection of other rights and obligations in the field of education.

Based on stated, being guided by Article 40, part one of article 116 of the Constitution of the Republic of Belarus, Articles 22, 24 Codes of the Republic of Belarus about judicial system and the status of judges, the Constitutional Court DECIDED:

1. Recognize necessary for the purpose of ensuring proper realization of regulations of the Constitution of the Republic of Belarus and international treaties of the Republic of Belarus to make corresponding changes to the paragraph the tenth subitem 4.1 of item 4 of the Regulations on compensation of means in republican and (or) the local budgets spent by the state for training of working (employee), the specialist approved by the resolution of Council of Ministers of the Republic of Belarus of September 23, 2006 No. 1255, directed to more complete protection of the rights and legitimate interests of citizens of the Republic of Belarus in case of establishment of the basis of release of the persons who got professional or secondary vocational education in the Republic of Belarus and enlisted in organization of formation of the Russian Federation on training in day form of education of higher level from compensation of the means spent by the state for their training.

2. Suggest Council of Ministers of the Republic of Belarus to specify in accordance with the established procedure edition of the paragraph of the tenth subitem 4.1 of item 4 of the specified Provision.

3. This decision becomes effective from the date of acceptance.

4. Publish this decision according to the legislation.

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