CONTENTS

Official Materials and Decisions
of the Constitutional Court
of the Republic of Belarus

• Judgment of the Constitutional Court of the Republic of Belarus of 25 October 2004 No. J-178/2004 "On the conformity between the Constitution, legislative acts of the Republic of Belarus, international legal acts ratified by the Republic of Belarus, Resolutions of the State Tax Committee of the Republic of Belarus of 8 May 2001 No. 62 "On procedure of payment of tax from income of foreign legal entities earning the income from operations with stocks from the sources in the Republic of Belarus" and of 25 May 2001 No. 72 "On approval of Instruction on taxation of "other income" of foreign legal entities which carry out activities in the Republic of Belarus through the permanent mission"

Summary:
     On 25 October 2004 the Constitutional Court has delivered Judgment as a result of the constitutional motion of the House of Representatives of the National Assembly of the Republic of Belarus.
     The issue was about foreign legal entities which have no permanent mission in the Republic of Belarus and which pay the income tax from operations with securities at the rate of 40 per cent on the grounds of the specified Resolutions of the State Tax Committee (at present - the Ministry on Taxes and Dues).
     In the opinion of the House of Representatives income taxation of those legal entities from operations with securities must be carried out in accordance with the Law of the Republic of Belarus "On income and profit taxes" at the rates of 10 and 15 per cent. If the Republic of Belarus has concluded international treaties on avoidance of double taxation, then the provisions of the international treaties shall be subject to taxation.
     The Constitutional Court has found to be legal the application of 40 per cent rate of tax from operations with securities as regards foreign legal entities which do not carry out activities in the Republic of Belarus through the permanent mission and which are subject to taxation on the basis of national tax legislation.
     At the moment of consideration of the case, in the Republic of Belarus were effective about 50 international agreements on avoidance of double taxation. They contain the rate that does not exceed the 10 per cent level. The Constitutional Court emphasizes that the provisions of the agreements shall be applicable to the persons who are residents of one or of both Contracting States where the Republic of Belarus is a party. The procedure of confirmation of the status of a resident is stipulated by the national tax legislation. Arguments of the House of Representatives that the legislation in question is not in line with the ratified by the Republic of Belarus agreements on avoidance of double taxation as the legislation specifying the complex procedure of release from double taxation are unfounded and of no legal nature.
     At the same time, the Constitutional Court notes contradictoriness of the legal regulation of tax relations, and that shall entail multi-valued understanding and application of enforceable enactments in practice.
     Due to that the Government and other state bodies have been proposed to take steps on securing unified legal regulation, timely elimination from legal collisions, as well as on ensuring fair solution of conflict situations in the field of taxation, bearing in mind that to a certain extent the grounds for dispute arising are stipulated by imperfection of the acts of legislation, their contradictoriness, failure to take the proper steps on their elimination.

• Decision of the Constitutional Court of the Republic of Belarus of 8 November 2004 No. D-179/2004 "On constitutionality of Decision of Minsk oblast Council of deputies of 21 January 2004 No. 34 "On budget of oblast for 2004", Decision of Minsk regional Council of deputies of 30 January 2004 No. 46 "On increasing of rates of land tax and fixation of reducing coefficients for 2004" in part of taxation by the land tax of gardening partnerships"

Summary:
     The Constitutional Court has adopted its Decision on the grounds of applications of citizens concerning verification of the constitutionality of point 21 of Decision of Minsk oblast Council of deputies of 21 January 2004 No. 34, Decision of Minsk regional Council of deputies of 30 January 2004 No. 46, as well as practice of referring by the Ministry on Taxes and Dues to the category of lands of industry, transportation, communication, power engineering, defence and for other purposes.
     On the basis of analysis of the norms of the Constitution and other enforceable enactments concerning consummation of the rates of the land tax with respect to the gardening partnerships, the Constitutional Court has found point 21 of Decision of Minsk oblast Council of deputies of 21 January 2004 No. 34 in part of recommendations for regional and city Councils to increase the rates of the land tax to be in line with the Law "On budget of the Republic of Belarus for 2004". At the same time, the point in question in part of recommendation to Minsk regional Council to fix the rates of the land tax in the territory of the region, taking into account the effective in Minsk rates of the land tax, has been found to be in line with the Law "On payments for land".
     Decision of Minsk regional Council of deputies No. 46 of 30 January 2004 has been also found to be in line with the Law "On budget of the Republic of Belarus for 2004" as well as with other acts of legislation which have more higher legal force.
     The Constitutional Court has also come to the conclusion that the lands of gardening partnerships regardless of the fact in whose ownership, possession or use they are, including the lands of common use shall be subject to taxation at the rates specified by Article 11 of the Law "On payments for land", but not by Articles 9, 10 and 11 as it took place in practice. In this connection, the Constitutional Court has proposed the Ministry on Taxes and Dues before adoption by the law maker of another decision while collecting the tax from gardening partnerships to proceed from the requirements of Article 11 of the Law "On payments for land" as those based on the provisions of the Land Code of the Republic of Belarus.

• Decision of the Constitutional Court of the Republic of Belarus of 8 December 2004 No. D-180/2004 "On constitutionality of Decision of Postavy regional Council of deputies of 29 December 2003 No. 40 "On budget of region for 2004" in part of setting of local due from natural persons for use of objects of infrastructure and Decision of Pukhovichy regional Council of deputies of 18 February 2004 No. 43 "On budget of region for 2004" in part of setting of purpose due from natural persons for maintenance and development of infrastructure of region "

Summary:
     On 8 December 2004 the Constitutional Court has examined constitutionality of enforceable enactments of Postavy and Pukhovichy regional Councils of deputies which have set local and purpose dues from natural persons, organizations and individual entrepreneurs.
     Decision of Postavy regional Council of deputies of 29 December 2003 No. 40 "On budget of region for 2004" has set in the territory of the region a number of local dues, including the from natural persons for use of objects of infrastructure. The payers of the due shall be the natural persons who reside in the territory of Postavy region and who have living accommodation and flats in their ownership, as well as tenants of departmental housing stock and housing resources of local Councils. The circumstance with which Postavy regional Council of deputies connected the obligation of the natural person to pay the due for use of objects of infrastructure shall not be the fact of use of the objects of infrastructure of Postavy region, but, to the point, the fact of possession, use of property or its ownership by the tax payer. The given due is in no way related to the concrete types of use by objects of infrastructure located in the territory of Postavy region.
     The Constitutional Court deems it unlawful to refer the due from the natural persons (tenants and landlords) for use by objects of infrastructure to the dues from users, where the powers to set them shall have local Councils of deputies of based territorial level in accordance with the Law "On budget of the Republic of Belarus for 2004".
     Decision of Pukhovichy regional Council of deputies of 18 February 2004 No. 43 has approved the Provision on purpose due from natural persons for maintenance and development of infrastructure of city. The payers of the given due shall be citizens who reside in the territory of Pukhovichy region and who are at the age of 18 as of 1 January 2004, as well as citizens who are temporal residents and who have the plot of land in the territory of the city of Marijana Gorka, of Rural Settlement Councils. The purpose due shall be paid once a year under the fixed rate. Under the Law "On budget of the Republic of Belarus for 2004, the local Councils of deputies of based territorial level, Pukhovichy regional Council of deputies is also referred thereto, shall have the right to set dues from natural persons, the payers of which may be also the natural persons, and the objects: are parking in specially equipped places; trading in the territory of the relevant administrative and territorial units; ownership of dogs and (or) their use in entrepreneur activities, use of local symbolism; holding of auctions; hunting and fishing; building of objects in the territory of the relevant administrative and territorial units; other types of use of infrastructure of the relevant administrative and territorial units specifying by Minsk city Council of deputies, Councils of deputies of based territorial level.
     By adopting Decision approving Provision on purpose due from natural persons for maintenance and development of infrastructure of region, Pukhovichy regional Council of deputies has gone beyond its competence, it had the right to set other types of use of infrastructure of region and impose the local due for use of the types of infrastructure, but it had no right to set purpose due for maintenance and development of infrastructure of region.
     The Constitutional Court has found to be at variance with the Constitution and the Law of the Republic of Belarus "On budget of the Republic of Belarus for 2004" of provisions of enforceable enactments of Postavy regional Council of deputies in part of setting of local due from natural persons for use of objects of infrastructure and fixing the rate of the due, and Decision of Postavy regional Council of deputies which approved the Provision of purpose due from natural persons for maintenance and development of infrastructure of the region.

• Decision of the Constitutional Court of the Republic of Belarus of 8 December 2004 No. D-181/2004 "On constitutionality of point 1.5 of Chapter 1 of Instruction on procedure of calculation and payment of due for trading in the territory of the relevant administrative and territorial units approved by Decision of Verkhnedvinsk regional Council of deputies of 29 December 2003 No. 27 "On budget of region for 2004" with alterations and addenda of 27 February 2004 No. 37 and of 25 June 2004 No. 50"

Summary:
     On 8 December 2004 the Constitutional Court has examined the issue on lawfulness of setting by Verkhnedvinsk regional Council of deputies of local due for organizations and individual entrepreneurs carrying out realization of saw timber production for outside the Republic of Belarus.
     Decision of Verkhnedvinsk regional Council of deputies of 29 December 2003 No. 27 "On budget of region for 2004" has set the local due for carrying out trading in the territory of the relevant administrative and territorial units and approved Instruction on procedure of calculation and payment of this due.
     According to the Instruction, the payers of the local due for carrying out trading in the territory of the relevant administrative and territorial units, in particular, shall be organizations and individual entrepreneurs. The object of taxation as applied to the mentioned subjects shall be carrying out trading for outside the Republic of Belarus and as the tax base there have been specified the profit from realization of saw timber production off the territory of Verkhnedvinsk region for outside the Republic. Rates of the due are fixed in based units and shall depend on the volume of profits; calculation and payment of the due shall be made monthly.
     Legal grounds for carrying out trading in the territory of the Republic of Belarus shall be specified in the Law "On trading" and it shall not cover the relations connected with carrying out foreign trade activities.
     Verkhnedvinsk regional Council of deputies in its Decision has referred to the payers of the given due the persons who do not carry out trading in the territory of Verkhnedvinsk region and who are not the subjects of trading in the territory of the Republic of Belarus, and within their entrepreneur activities export the production in question for outside the Republic of Belarus, i.e. carry out foreign trade activities.
     According to the sense of Article 10 of the Law "On budget of the Republic of Belarus for 2004" foreign trade activities are not determined as the object for imposition by the local due from users. The object of the specified local due may be activities of trading organizations and individual entrepreneurs, where the grounds for the activities are relations as regards selling of produced, processed or acquired goods, as well as concerning the works, services related to the sale of goods in the territory of the relevant administrative and territorial units. In this particular case - in the territory of Verkhnedvinsk regional Council of deputies.
     Based on above-mentioned, the Constitutional Court has found the provisions of enforceable enactments of Verkhnedvinsk regional Council of deputies which have set the local due in question to be at variance with Article 121 of the Constitution and Article 10 of the Law "On budget of the Republic of Belarus for 2004".
     27 December 2004 the Constitutional Court has adopted decision where made explanation of the issue of refund of money from the regional budget of Verkhnedvinsk region. The reason for adoption of the given Decision was address of Verkhnedvinsk regional executive committee.
     The Constitutional Court emphasized that the procedure of refund of tax, due (duty), fine is specified in Articles 60 and 61 of Common part of Tax Code of the Republic of Belarus, the provisions of which shall be applied by the executive committee and tax bodies while settling the given issue.
     At the same time, guiding by Article 9 of the Law "On Constitutional Court of the Republic of Belarus", under which the Constitutional Court has the right to determine the moment of invalidation of an unconstitutional enforceable enactment or some of its provisions, as well as taking into account the circumstance that the sums of the local due entered the regional budget in 2004 have been already used for financing the measures envisaged by classification of expenses of the budget of the Republic of Belarus, the Constitutional Court has also explained that return from the regional budget of the sums of money for the payers of the local due may not take place, if they before 8 December 2004 have paid it voluntarily and made no contest under the prescribed procedure of the lawfulness of collection (exaction) of the given local due.

• Decision of the Constitutional Court of the Republic of Belarus of 8 December 2004 No. P-115/2004 "On proposals concerning alterations of the legislation and practice of its enforcement"

• Decision of the Constitutional Court of the Republic of Belarus of 8 December 2004 No. P-123/2004 "On explanation of Decision of the Constitutional Court of the Republic of Belarus of 8 December 2004 "On constitutionality of point 1.5 of Chapter 1 of Instruction on procedure of calculation and payment of due for trading in the territory of the relevant administrative and territorial units approved by Decision of Verkhnedvinsk regional Council of deputies of 29 December 2003 No. 27 "On budget of region for 2004" with alterations and addenda of 27 February 2004 No. 37 and of 25 June 2004 No. 50

Problems, opinions, comments

• G.A. Vasilevich. Bodies of constitutional control (supervision) - the most important support of the state ruled by law

     Article reveals the notion and significance of the constitutional control (supervision).
     With the reference to existing models of constitutional justice - American and European (Austrian) author considers the procedure of organization, competence of the bodies of constitutional control (supervision) and procedure of examination of cases by them.
     It is pointed out the significance of constitutional control for securing the supremacy of the Constitution as the system making act for the purpose of protection of the rights and lawful interests of citizens in the state.

• V.V. Podgrusha. Principle of forming of legal bases of market economy of the Republic of Belarus

     Author makes an attempt from the point of view of nowadays to reveal and to evaluate the principles, ideas, which form the legal basis for creation market economy of the Republic of Belarus. It is emphasized the peculiarities of this creation at the 1st stage - in 90s- the necessity to organize as soon as possible the national legal base on the conceptually new grounds, to shape or to reform essentially the law enforcement institutes in the field of market relations.
     Article specify special role of the law under conditions of market economy, notes the problems of legal securing of market transformations of objective and subjective features, from bias towards undue law creation to legal uncertainty, contradictoriness of legal regulation, gaps in law.
     By making evaluation of universally acknowledged principles of forming of legal grounds of market economy, the author researches into those of them which found their fixation in the Constitution and the laws, notes that among those principles first of all are the basic principles of a democratic state ruled by law oriented to creation of highly efficient market economy.

• A.N. Pugachev. Decisions of constitutional courts: notion and types

     Article is devoted to typology of the documents issued by the Constitutional Court of the Republic of Belarus and emphasizes the problem how to elucidate the legal nature of final Decisions of the Constitutional Court of the Republic of Belarus.
     Author underlines that the Decisions shall have exclusively normative nature, clarify formal and substantial aspects of Decisions and Messages as the most significant legal acts of the Constitutional Court. Provisions of the Rules of the Constitutional Court have been studied with special attention, because the Constitutional Court issues the documents within the limits of its discretionary law making power.
     Belarusian problems are commented with references to foreign experience of the constitutional justice in Russia, France and Germany. Author proposes a project of legislative decision on the problematic issues mentioned above.

• K.I. Petrovich. Judicial practice as source of national law

     Author supports the expressed in literature opinion that the forming legal system of the state which aspire to become a democratic state ruled by law may not be developing on the principles of legal positivism.
     Article makes analysis of still scientifically disputable arguments for and against the recognition of judicial practice as the source of law.
     Case law is evaluated by the author as optimum method for securing dynamism of law, flexibility of legal regulation, as the means for joining of abstract legal norm with concrete vital circumstances.

• E.A. Vorobei. Effectiveness and quality of the law: theoretical aspects

     Article deals with theoretical issues of effectiveness and quality of enactments and their importance in law creation and application, with the problems of specification of the features of effective operation of law.
     In the relevant researches there have been investigated different points of view of scientists on specification of effectiveness of law in the researches and on its definition. Author gives estimation of affirmative and negative aspects in the theory.
     Special attention is paid to the available characteristics of the currently effective law in the Republic of Belarus and its significance in the law making process.

• I.V. Malkina. On development in the Republic of Belarus of institute of state registration of economic entities

     Article makes an attempt to reveal the legal nature of the institute of state registration of the economic entities from the point of view of its belonging to one of the kinds of legal regulations - accounting and legalizing regulations. Author makes analysis of different approaches to definition of the notion "state registration", alterations in the legislation of the Republic on the issue of state registration.

• O.M. Kunitskaya. Legal issues of specification of criteria of subjects of small enterprise

     On the grounds of theoretical generalization of the approaches to definition of the subject of small enterprise, in particular, in the legislation of the Republic of Belarus regulating relations in the given sphere, author gives concrete proposals on its development with the purpose of securing the constitutional principle of equal use of possibilities for carrying out entrepreneur activities.

• D.S. Beregovtsova. Problem of realization of the right to psychophysical immunity due to application to a human being of modern medical technologies

     The present paper is devoted to the actual problems of legal regulation of the right to physical immunity both on the international level and in the frames of national legislation.
     Special attention in article is drawn to the research and analysis of the mechanism of the realization of the right to physical immunity of an individual when he/she is exposed to the influence of new medical technologies.

• A.I. Plisko. Protection of the rights of spouses related to establishment of legal entities by sharing of common property

     Author emphasizes that recently there have been appeared new types of property which may be in common shared property of spouses and the nature of such a property supposes certain peculiarities of its turnover and disposal. This shall predetermine the necessity to elaborate the methods of partition of such a property. Article proposes possible approaches to partition of shares, stocks of spouses in legal entities depending on their type.
     On the basis of analysis of provisions of civil and family legislation the author makes conclusion that legal regulation of relations in the field of property rights, rights of participation etc. shall not specify in full the peculiarities of common property of spouses and that shall entail disputable situations in practice.

• L.A. Lavnikevich. Marriage-contract as one of the forms for securing of equality of spouses

     Article covers theoretical issues of the marriage-contract - new institute appeared in the national legislation after finding by the Republic of Belarus of its independence and transformation to market relations.
     With the help of consideration of the specified novel and other novels in civil and marriage and family legislation the author makes the conclusion on emerging for the spouses (partners) of the possibility to settle the issues of inequality in social and material sense.


     Round table "Constitutional guarantees of rights and freedoms of citizens"

International relations of the Constitutional Court

     V.Z. Shuklin. III International Juridical Forum of CIS and Baltic States, Yalta, Ukraine, 6-9 October 2004

     K.I. Kenik. IX Yerevan International Conference "Principle of supremacy of law in practice of constitutional justice", Yerevan, Armenia, 15-16 October 2004

     A.P. Chichina. International Training Workshop on Fighting Human Trafficking, Tirana, Albania, 22-25 Novembert, 2004

Dates, events, facts

     Opening of new building of the Institute of Further Training and Improvement of Professional Skills of Judges, Staff of Procurator's Office, Courts and Justice of Belarusian State University