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 21 September 2006 No. J-195/2006 "On the conformity between the Constitution, laws and other acts of legislation of the Republic of Belarus of Resolution of 5 January 2002 No. 2/1/1/1/2 "On making alterations and addenda into Provision on composition, rates and procedure of exemption from the sums of author's fees and other incomes of natural persons" adopted by ministries on taxes and dues, economy, finance, statistics and analysis, culture of the Republic of Belarus"

Summary
     As a result of proposal of the House of Representatives of the National Assembly of the Republic of Belarus the Constitutional Court of the Republic of Belarus has delivered of 21 September 2006 the Judgment where ruled to be in line with the Constitution, with laws and with other acts of legislation of the Republic of Belarus Resolution of 5 January 2002 No. 2/1/1/1/2 "On making alterations and addenda into Provision on composition, rates and procedure of exemption from the sums of author's fees and other incomes of natural persons" adopted by the Ministry on Taxes and Dues of the Republic of Belarus, the Ministry of Economy of the Republic of Belarus, the Ministry of Finance of the Republic of Belarus, the Ministry of Statistics and Analysis of the Republic of Belarus, the Ministry of Culture of the Republic of Belarus (hereinafter is also referred to as Resolution of 5 January 2002) in part of specification of expenses with use of index of consumer costs for their exclusion from returns that are subject to taxation by selling of checks "Zhiljo" ("Dwelling").
     The House of Representatives of the National Assembly considered that the actions of the Ministry of Taxes and Dues as regards imposing the income tax on returns of citizens from selling of checks "Zhiljo" acted unlawfully and used while taxing this income for specification of expenses the index of consumer costs stipulated by Resolution of 5 January 2002 instead of index of rise of construction cost of dwelling fixed by Resolution of the Council of Ministers of the Republic of Belarus of 21 September 2001 No. 1399 "On approval of Provision on privatization of living accommodation in houses of state housing stock, their maintenance and repair and Provision on indexation of dwelling quota (sums of quotas)".
     Having analyzed the relevant provisions of the Constitution, Laws "On privatization of housing stock in the Republic of Belarus", "On privatization of state property in the Republic of Belarus", "On income tax from natural persons", other normative legal acts of the Republic of Belarus, having studied the materials of the case, the Constitutional Court has come to the following conclusions.
     Index of rise of construction cost of dwelling fixed by the legislation on privatization was not subject to application while taxing returns from selling of checks "Zhiljo" due to adoption by the relevant ministries on the grounds of delegated to them powers of Resolution of 5 January 2002. In this particular case there was no prohibition against stipulation and fixation in tax relations of index of consumer costs by the acts of higher legal force. Index of rise of consumer cost of dwelling was subject to application only under condition of using of checks "Zhiljo" in accordance with their purpose envisaged by the legislation (part four of Article 11 and part one of Article 21 of the Law on privatization).
     According to the Law on privatization, specification of the procedure of indexation of checks "Zhiljo" taking into consideration the rise of construction cost of dwelling was referred to the competence of the Government of the Republic of Belarus. The Council of Ministers of the Republic of Belarus in its Resolution of 21 September 2001 No. 1399 has approved Provision on privatization of dwelling accommodation in the houses of state housing stock, their maintenance and repair, as well as Provision on indexation of dwelling quota (sums of quotas). The given Provisions solved the issues of indexation of checks "Zhiljo" only in case of their purpose using, first of all, for privatization of dwelling or while carrying out by citizens and members of their families, who are in need of improvement of living conditions, of individual or collective housing construction, including by way of share, reconstruction of one-flat, block system dwelling houses, by way of share in housing construction, or those who joined the organization of citizens having built, as well as in case of repayment of debts of banks and loans of legal entities borrowed and used for the aims in question. The indexes stipulated in these Provisions were not fixed for selling of checks "Zhiljo" and for settlement of issues of taxation.
     At the same time, the Constitutional Court pointed out the necessity of determination of the main elements of taxation (payers, object of taxation, tax base, tax period, tax rate (rates), procedure of calculation, procedure and periods of payment) at the level of legislative acts, and underlined that the given legal position has been stated previously in decisions of the Constitutional Court when the Court examined the norms of tax legislation of by-legislative normative legal acts of the ministries, local representative and executive bodies. This position is related also to the republican taxes, in particular, legal regulation of collection and calculation of income tax from natural persons and found its approval in Decree of the President of the Republic of Belarus of 3 November 2005 No. 520 "On improvement of legal regulation of certain relations in economic sphere".
     In its Judgment the Constitutional Court has also formed the position on the issues of delegation by norm creating bodies of their powers and the National Assembly and the Council of Ministers of the Republic of Belarus while delegating the powers on the issues that involve the rights, freedoms and obligations of citizens were proposed to specify the limits of legal regulation in by-law acts, and that shall make it possible to exclude adoption of decisions that meet not in full the aims of legislative regulation.

• Decision of the Constitutional Court of the Republic of Belarus of 5 July 2006 No. P-192/2006 "On vesting individual entrepreneurs - holders and (or) tenants of car parks with duty of calculation, deduction and transfer into the budget of due for parking in specially equipped places"

Summary
     Decision contains legal positions of the Constitutional Court of the Republic of Belarus on legality of vesting by enforceable enactments of the bodies of local self-government in individual entrepreneurs who are owners and (or) tenants of car parks with functions of calculation, deduction and transfer into the budget of the due for parking in specially equipped places.
     The Constitutional Court emphasized that at present moment vesting individual entrepreneurs with the specified function shall have no legal grounds stipulated by the legislative acts. Individual entrepreneurs - owners and (or) tenants of parking places are not the source of payment of profits with respect to the individuals who locate the means of transportation at the car parks. In this connection they may not be subject to be charged with the powers of tax agents that is envisaged by Article 23 of the Common Part of Tax Code of the Republic of Belarus (hereinafter is also referred to as TC).
     It shall be also unlawful to vest individual entrepreneurs with the duty of the tax collector because according to the provisions of Article 4 of TC they are not defined as participants of the given tax relations. The specified duty in accordance with the current legislation may be performed by the state bodies or it may be vested in organizations and officials. Other provisions of tax legislation, in particular, Article 46 of TC that regulates the procedure of payment of taxes, dues (fees) shall be the confirmation of the given position.
     In the process of study of the materials of the case it was found that according to the practice of many years decisions of city and regional Councils of deputies, individual entrepreneurs - owners and (or) tenants of parking places were vested with the function on collection of the parking due. That shall be grounded by the necessity of securing of full and timely transferring into the budget of sums of the due in question. In the opinion of the Constitutional Court, such an approach as whole is a rational and useful for the citizens - payers of the parking due. However, decisions of local Councils of deputies on the given issues must have the necessary legislative basis.
     On the grounds of the stated above and guiding by part one of Article 116, part four of Article 122 of the Constitution, Article 7 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court proposed the House of Representatives of the National Assembly of the Republic of Belarus for the purposes of securing appropriate legal regulation of relations related to collection of the parking due in specially equipped places to consider the issue on the possibility of making relevant alterations and addenda into the legislation and that shall make it possible to specify strictly the rights and obligations of the participants of the law relations in question.
     While reserving the relevant procedure of legal regulation of taking and collection of taxes and dues, the Constitutional Court proposes by way of explanation of the currently effective legislation to take measures on exclusion of vesting the individual entrepreneurs - owners and (or) tenants of parking places with the obligation to calculate, deduct and transfer into the budget the sums of the given due.
     
     On appointment of S.Y.Danilyuk as the judge of the Constitutional Court of the Republic of Belarus

Realization by state bodies of decisions of the Constitutional Court

     V.D. Skirda. On execution of decisions of the Constitutional Court of the Republic of Belarus in July - September 2006

Citizen lodged an appeal with the Constitutional Court

     On using with respect to objects of property of notions "demolition", "shifting", "transferring"
     On right to reservation of privilege as regards housing and communal services while alienation of flat by way of endowment
     On jurisdiction of issues on finding of enforceable enactments to be null and void
     On payment of recovery of costs on realization of executive document
     On compensation by citizens of sums of land tax for the plot of land occupied by house

Scientific information

• G.A. Vasilevich. Legal regulation of citizenship of the Republic of Belarus and the Union state

Annotation
     The author covers the development of legislation on citizenship in our country, in particular after finding by the republic of the state sovereignty in the early nineties of the past century.
     On the basis of the analysis of the provisions of the Law "On the citizenship of the Republic of Belarus" the article sets out the peculiarities of acquiring the citizenship of the Republic of Belarus and seceding from it.
     The article contains also statistical data on dynamics of granting and seceding from citizenship of the Republic of Belarus on the grounds of the edicts of the President of the Republic of Belarus for the last years.
     The article reviews the practice of the Constitutional Court of the Republic of Belarus on the issues connected with the citizenship as regards the electoral legislation.
     In conclusion the author goes into details on the problem of perspectives of the development of the institute of citizenship of the Union state of Belarus and Russia.

• R.I. Filipchik. Realization of right to access to justice

Annotation
     The article studies theoretical and practical aspects of realization of the right to access to justice, emphasizes main components of accessibility to justice, studies methods of securing access to the court of law and guarantees of effectiveness of judicial protection.
     The author gives her own definition of notion "accessibility of justice" as secured by the state possibility of free and full exercise of the right to effective judicial protection by a competent, independent and impartial court of law within the time periods fixed by law.
     In the opinion of the author, the essence of accessibility of justice is in the absence of unreasonable, ill-founded legal and practical obstacles for appealing to the court of law, examination and settlement of cases. For securing accessibility of justice, first of all, it is necessary the availability of the court of law established on the basis of law and which meets criteria of independency and impartiality with relatively wide scope of powers for adoption of decisions as regards all the aspects of a dispute. In addition, the state must have the norms of law that allow everyone not only to make appeal to the court of law, but also to receive proper protection of the rights, freedoms and lawful interests.
     The author makes also the concrete proposals on development of legislation in the sphere of realization of the right to access to justice.

• T.S. Boiko. To issue on collector of taxes under the legislation of the Republic of Belarus

Annotation
     The article reviews the problems of legal regulation of the institute of collector of taxes and dues and its application in practice by norm creating bodies of the Republic of Belarus with respect to individual entrepreneurs. The author analyses the available in special scientific and educational literature notion of the collector of taxes. There is also the comparative analysis of provisions of tax legislation in the field of regulation of the institute of collector of taxes in the Republic of Belarus and in the Russian Federation. Special attention is paid to legal positions of the Constitutional Court of the Republic of Belarus that are stated in a number of decisions devoted to the institute of collector of taxes.
     There is the conclusion that for the exclusion of problems and collisions in law applying practice, for observance of provisions of the Constitution and laws by local norm creating bodies, for protection of constitutional rights and lawful interests of all participants of tax relations, the Common Part of the Tax Code of the Republic of Belarus should be added by the independent norm dedicated to the institute of collector of taxes with specification in it of the provision who may perform this function and with clear, distinct and full stipulation of the rights, obligations and liability of collector of taxes and dues.

• A.V. Karavai. System (classification) of objects of civil rights

Annotation
     The article analyses the approaches to the problem of systematization of objects of civil rights accepted in the Civil Codes of the Republic of Belarus and in other states of the former USSR, as well as in educational and scientific literature.
     The author sets out the differences in determination of the system of objects of civil rights in the mentioned acts of legislation, shortcomings and contradictions of Article 128 of the Civil Code of the Republic of Belarus that contains the list of objects of civil law relations.
     It is grounded the necessity of use of alienability of the relevant good and the possibility of its money value as the basic criteria of classification of the objects of civil rights. On the ground of the specified criteria the goods may be subdivided into the property goods (of money value and separable from the subject that are object of turnover) and individual goods (without money value and non-separable that are not object of turnover).
     The author proposes to refer the following groups of objects: things, money, securities, actions, rights and duties, objects of intellectual property, information to the property goods with the use of criteria of materiality and character of consumers' value.
     The article contains the proposal to use the ground of origination of individual goods (from beginning or by force of the act of legislation) as the main criteria of classification of the individual goods.

• O.S. Kuryleva. Constitutional right to labour: contradictions of branch regulation

Annotation
     The article points out that the most important forms of realization of the right to work are directly enshrined in the Constitution of Belarus: employment, entrepreneurs activities and other not prohibited by law economic activities; art, scientific, technical creative work and teaching.
     The author motivates the conclusion that the necessity of universal guarantees of the right to work is stipulated by the fact that the branch regulation by definition may not take into consideration the universality of the given right. The article gives also examples where even within one branch the law maker in many cases fails to take into consideration the specific features of the different types of branch forms of realization of the right to work. The author underlines that shortcomings of existing branch constructions and their variety in case of absence of the complex approach could have negative consequences while realizing by citizens of the right to work in the form of liability in the framework of tax, administrative, criminal legislation. In this respect legal regulation of the existing contradictions requires to secure both branch and universal guarantees of the right to work.

• A.P. Derbin. To philosophical problems of juridical liability

Annotation
     The article analyses actual problems of legal liability from the point of view of wide social positions. Legal liability is one of the legal institutions that shall secure the law enforcement.
     In spite of sufficient elaboration of the given problem in educational and scientific literature, philosophy and social aspects of law liability were subject to lesser involvement.
     The author emphasizes that legal liability is the legal remedy for the protection of the most important social values against the most dangerous infringements. Thus, legal liability must have both formal-legal and social significance.
     The article specifies that the ground of legal liability is socially harmful anti-legal arbitrariness with harm inside. Socially negative high-handedness is the characteristic feature of offence. Legal liability is a response of the state to the infringement of law, retaliatory state formalized harm on socially harmful arbitrariness of a person.
     Special attention is paid to the fact that the considerable element of legal liability shall be conviction, socially negative evaluation of a deed and a person who did it. Here is the distinguishing feature of legal responsibility and other measures of state coercion, first of all, measures of protection.

• E.M. Tarasuk. Mandate of a parliamentarian in the Republic of Belarus: theory and practice

Annotation
     The article is devoted to practice of free and imperative mandate of the elected representative of the people in Belarus at the present stage of constitutional development of the state.
     The author sets out the historical aspect of the development of the parliamentary mandate. There are definitions of notions of free and imperative mandate of the deputy with their distinctive features. The article examines basic elements of parliamentary mandate: the right to recall the elected representative of the people, reports of the deputy to the voters.
     The author provides also proposals on perfection of work of the deputy of the House of Representatives, the member of the Council of the Republic of the National Assembly of the Republic of Belarus with voters within the limits of concrete electoral district.

• T.E. Shpilevskaya. Grounds for differentiation of legislation regulating labour of professorial and teaching staff

Annotation
     The article is devoted to the issues of unity and differentiation of legislation that regulates labour of professorial and teaching staff.
     The author specifies that in the Republic of Belarus equally with the general norms of the labour legislation that cover professorial and teaching staff of institutes of higher education, previously and at present moment there are also effective special norms stipulating the procedure of origination, alteration and termination of labour law relations of the given category of workers, remuneration of their labour, working conditions etc.
     The article sets out the factors that are the reasons of arising of special norms of legislation devoted to the labour of professorial and teaching staff of institutions of higher education; there is also analysis of classification of grounds of differentiation of labour legislation; the article provides also the grounds that, in the opinion of the author, shall form the basis of differentiation of legislation relating to regulation of labour of teachers of institutions of higher education, the author argues also the proposals on improvement of effective legislation.

• A.A. Chikileva. Criteria of protection capacity of results of genetic engineering

Annotation
     The article specifies that development of high technologies, in particular genetic engineering, has predetermined the significance of legal protection adequate for the worth of the result of intellectual activities. The main idea of the article is to fix the patentability criteria for the abovementioned object.
     The author deals with the issue by determining the inner character and qualities of the issue. The author goes on by using comparative approach to the patentability criteria of both inventions and plant varieties (selection). The author comes to the conclusion that the nature of genetically engineered organisms does not allow to use the existing intellectual property law mechanisms (both patent and sui generis systems).
     The author makes also some proposals on improvement of legal provisions of the Republic of Belarus within the specified area.

• M.N. Dmitruk. Financial mechanism of nature use and environmental protection: issues of legal regulation

Annotation
     The article is dedicated to study the problem of financial security of environmental protection. Actuality of the given problem is conditioned by necessity of creation of adequate and stable financial basis of ecological sphere, and that is the guarantee of effectiveness of the norms of ecological legislation.
     The author proposes to consider all the block of resources and instruments of financing from the point of view of their introduction as structure elements into the whole mechanism of financing of nature consumption and environmental protection.
     The article deals also with issues of notion of financial mechanism of nature consumption and environmental protection, as well as with some aspects of legal regulation of certain resources of financing. In particular, the author expresses proposals on possibility of use of credit functions by funds of environmental protection, on development of methods of economic stimulation of environmental protection activities carried out at the cost of means of economic entities.

• E.V. Aleksa. Implementation in the Republic of Belarus of the Hague Convention on protection of cultural values in case of military conflict

Annotation
     The Republic of Belarus, as a party of the Hague Convention on the protection of cultural values of 1954 and the second Protocol to it of 1999, entered into commitments to take on the national level the necessary measures for more effective protection of its cultural heritage.
     Subject of study of the article is modern condition of implementation of the specified international legal treaties. Under consideration are the issues of adoption of legal, administrative, technical measures for the protection of cultural values in the Republic of Belarus.
     Special attention is paid to the possibility of granting the cultural values of Belarus of consolidating protection stipulated by Protocol of 1999. The author analyses the conformity of the steps that are taking in Belarus with the international standards in the field of protection of cultural heritage. There is the proposal to make the relevant alterations and addenda into the legislation of the Republic of Belarus.

International experience of constitutionalism

• T.S. Maslovskaya. Constitutional Court of Luxembourg

Annotation
     This article examines the constitutional and legal status of the Constitutional Court of Luxembourg on the grounds of the norms of Constitution of Grand Duchy of Luxembourg of 1868 and the Law on organization of the Constitutional Court of Luxembourg of 1 January 1997. The author points out peculiarities of the procedure of forming of the Constitutional Court. The article analyses the status of members of the Constitutional Court, determines its specific nature. Special attention is paid to disciplinary liability of the members of the Court.
     The article provides an analysis of single power of the Constitutional Court of Luxembourg - control over constitutionality of laws. The author considers in details the procedure of examination of the case in the Court from the moment of institution of the proceedings till delivery and publication of decision. There are the principles of constitutional proceedings. There is the specification of the place of the body in question at the present moment in the balance of state bodies and in protection of fundamental human rights.

Scientists of Belarus

Congratulations with Jubilee

      Judge of the Constitutional Court of the Republic of Belarus A.A. Sarkisova - 70 Anniversary

Congratulations with Jubilee

      Rector of the Academy of Public Administration under the aegis of the President of the Republic of Belarus S.N. Knyazev

      Director of the Institute of State and Law Mr V.P. Izotko

International relations of the Constitutional Court

G.A. Vasilevich. Citizenship in European Union (on materials of сonference in Athens, 15-16 September 2006)

V.Z. Shuklin. International scientific and practical conference in Chisinau (22-23 September 2006) and XIth Yerevan international conference (5-7 October 2006)