DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

the 17 of November 2010 No. D-514/2010

On legislative regulation of the liability of land plots tenants (rent payers)

The Constitutional Court of the Republic of Belarus, comprising the Presiding Officer – Chairman of the Constitutional Court of the Republic of Belarus P.P. Miklashevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, T.V. Voronovich, V.P. Isotko, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov,

with the participation of:

the Supreme Court of the Republic of Belarus represented by L.D. Moskalenko, Judge;

the Supreme Economic Court of the Republic of Belarus represented by O.N. Mikhnyuk, Judge;

the General Prosecutor’s Office of the Republic of Belarus represented by G.A. Shostak, head of the Division supervising the execution of environmental and land law of the Department supervising the execution of legislation and lawfulness of legal acts;

the Ministry of Taxation of the Republic of Belarus represented by E.A. Selitskaya, head of the Legal Department;

the Ministry of Finance of the Republic of Belarus represented by A.V. Vasevich, deputy head of the Department of tax policy – head of the Division of taxation of income of the Main Department of tax policy and budget revenues; I.A. Volchek, deputy head of the Department of environmental, processing industry and consumer co-operation finance of the Main Department of agro-industrial complex finance; T.N. Stanko, head of the Division of property relations and trade finance of the Main Department of production industry finance; N.A. Garmaza, chief lawyer of the Legal Department of the Ministry of Finance of the Republic of Belarus,

on the basis of part eight of Article 22 the Code of the Republic of Belarus on Judicial System and Status of Judges

in the exercise of the right to submit to the President of the Republic of Belarus, houses of the National Assembly of the Republic of Belarus, Council of Ministers of the Republic of Belarus, other state bodies within their competence proposals on the need to make alterations and (or) addenda to acts of legislation as well as to adopt new normative legal acts, which are under the jurisdiction of the Constitutional Court, in a court session considered the appeal of an open joint stock company “Beltransgaz” concerning the liability of tenants of state-owned land plots who have committed non-payment or impartial payment for the use of these plots.

The appeal stated that in order to bring the tenants, who have committed non-payment or partial payment of the rent for state-owned land plots, to administrative liability, tax authorities use part one of article 13.6 of the Code of the Republic of Belarus on Administrative Offences (hereinafter – the CAO). However, according to this norm administrative liability may incur only for non-payment or partial payment by the payer or other liable person of a tax, fee (duty). But the rent is not ranged in any taxes, fees (duties) specified in the Tax Code of the Republic of Belarus. The appeal also noted that in accordance with part two of article 4.8 of the CAO a legal entity may only be liable for the administrative offences, explicitly provided by the Special Part of the CAO.

Having analysed the norms of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the CAO, the Law of the Republic of Belarus “On the Republican Budget for 2010” (hereinafter – the Budget Law for 2010), the Edict of the President of the Republic of Belarus of March 1, 2010 No. 101 “On the rent collection for the state-owned land plots” (hereinafter – the Edict No. 101), other normative legal acts and other materials of the case, the Constitutional Court of the Republic of Belarus found the following:

1. In accordance with part five of Article 13 of the Constitution the State shall regulate economic activities in the interests of the individual and society, and shall ensure the direction and co-ordination of state and private economic activity for social purposes.

The State shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution (Article 59 of the Constitution).

According to paragraph 2 of article 31 of the Budget Law for 2010, the payers of the rent for the state-owned land plots, lessors of which are rural, village, city, district executive and administrative bodies, shall enjoy the rights and perform the duties established for those who pay taxes, fees (duties).

Tax authorities both controlling the correct calculation, complete and timely payment of the rent for the state-owned land plots, lessors of which are rural, village, city, district executive and administrative bodies, and applying the means to ensure either its payment and the payment of fines or the recovery of fees and fines, shall enjoy the rights and perform the duties established for tax control, application of means of enforcing tax duties, levying taxes, fees (duties) and fines.

Non-payment or partial payment of the rent for the state-owned land plots, lessors of which are rural, village, city, district executive and administrative bodies, delay in submission of the relevant tax declaration (calculation) to a tax authority involve the liability as provided by the legislation for non-payment, partial payment of taxes, fees (duties), delay in submission of a tax declaration (calculation) to a tax authority.

From January 1, 2010 the procedure for collecting the rent for state-owned land plots has been governed by the Edict No.101. It was established that the control over the procedure of calculation and payment of the rent for state-owned land plots shall be vested in tax authorities, local executive committees and administrations of free economic zones in accordance with legislation.

Under subparagraph 1.17 of paragraph 1 of the Edict No. 101 payers of the rent for land plots shall enjoy the rights and perform the duties established for the payers of taxes, fees (duties). When controlling the correct calculation, complete and timely payment of the rent for state-owned land plots as well as when applying the means of ensuring either its payment and the payment of fines or the recovery of these payments and fines tax authorities shall enjoy the rights and perform the duties established for tax control, application of means of enforcing tax duties, levying taxes, fees (duties) and fines. Non-payment or partial payment of the rent for state-owned land plots, delay in submission by the rent payers of the relevant calculation involve the liability as provided by legislation for non-payment, partial payment of taxes, fees (duties), delay in submission of a tax declaration (calculation) to a tax authority.

Thus, the Budget Law for 2010 and the Edict No.101 have established the unlawfulness of an act, which consists in non-payment or partial payment of the rent for state-owned land plots as well as in delay in submission by the rent payers of the relevant calculation; such unlawfulness involves the equal liability as provided by the legislation for non-payment, partial payment of taxes, fees (duties), delay in submission of a tax declaration (calculation) to a tax authority.

2. With a view to ensure the legal regulation of administrative liability, the legislator determined in the CAO the acts which shall be ranged in administrative offences as well as the grounds and conditions of administrative liability; it also provided for administrative penalties, which may be applied either to those individuals who have committed administrative offences or to legal entities found guilty and subjected to administrative liability in accordance with the CAO (part one of article 1.1).

According to article 4.1 of the CAO administrative liability is expressed in applying of administrative penalties to an individual who has committed an administrative offence, as well as to a legal entity found guilty and subjected to administrative liability in accordance with this Code.

Based on the fact that the CAO does not provide for the administrative liability of those payers who have committed either non-payment or partial payment of the rent for state-owned land plots or delay in submission of the rent calculation for these plots, the Constitutional Court finds that there is a gap in the legislation. The administrative attachment for wrongful acts requires that any administrative offence as well as any administrative penalty for its commission should have been identified in the CAO, which according to part two of article 1.1 of the Code shall be the only law on administrative offence, which is in effect in the territory of the Republic of Belarus.

According to part two of Article 133 of the Constitution budget revenues shall be formed from taxes determined by law, other obligatory payments as well as other receipts.

The Constitutional Court notes that the budget shall be the master plan of the formation and use of funds, ensuring the implementation of the tasks and functions of the State (article 1 of the Budget Code of the Republic of Belarus). The expenditures for nationwide activities, national defence, law-enforcement, healthcare, education, culture, social policy etc. shall be financed out of the budgetary funds.

Based on the fact that non-tax revenues, along with taxes are the main source of revenues in the republican and local budgets, the Constitutional Court considers that the legislator has reasonably established in the Budget Law for 2010 and the Edict No. 101 the unlawfulness of an act (action or ommission) in the form of non-payment, partial payment of the rent for state-owned land plots, delay in submission of the rent calculation for these plots. However, for the institution of administrative proceedings any administrative offences and relevant penalties shall be provided in the CAO because according to part two of article 4.8 of the latter a legal entity may only be liable for the administrative offences, explicitly provided by the Special Part of this Code.

3. Everyone shall be guaranteed protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law (part one of Article 60 of the Constitution). Judicial remedy of human rights and freedoms is guaranteed by the Constitution. In accordance with Article 22 of the Constitution all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination.

The Constitutional Court considers that the absence of the CAO provisions on the liability for acts expressed in either non-payment or partial payment of the rent for state-owned land plots or delay in submission by rent payers of the rent calculation for these plots shows that there is a gap in legislative regulation of relevant relations. It may lead to either violation of the rights of rent payers or non-performance of their duty to pay the rent; it may raise the possibility of ambiguous interpretation and, therefore, arbitrary application of the law that contradicts the constitutional principle of everyone’s equality before the law, which requires certainty, clarity, unambiguous character of legal rules and their consistency in the system of current legal regulation.

According to article 72 of the Law “On Normative Legal Acts of the Republic of Belarus” if any gaps are identified the rule-making bodies (officials), which adopted (issued) normative legal acts, shall be obliged to make appropriate addenda or alterations thereto in order to fill the gaps.

In the Constitutional Court opinion the filling of gaps in current normative legal acts regarding the administrative liability for either non-payment or partial payment of the rent for state-owned land plots or delay in submission of the rent calculation for these plots shall ensure the implementation of the constitutional principles of the supremacy of law and everyone’s equality before the law.

In view of the foregoing, pursuing part eight of article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges, the Constitutional Court of the Republic of Belarus

RULED:

1. With a view to implement the constitutional principles of the supremacy of law and everyone’s equality before the law, to recognise as necessary to fill the gap in legal regulation of the liability of rent payers for either non-payment or partial payment of the rent for state-owned land plots or the delay in submission of the rent calculation for these plots.

2. To propose to the Council of Ministers of the Republic of Belarus to make a relevant draft law on making appropriate alterations and addenda to the Code of the Republic of Belarus on Administrative Offences and submit it under the established procedure to the House of Representatives of the National Assembly of the Republic of Belarus.

3. The present Decision shall come into legal force from the date of its adoption.

4. To publish the present Decision in accordance with legislation.

Presiding Officer –

P.P. Miklashevich

Chairman of the Constitutional Court

Republic of Belarus