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

on the basis of part one of Article 116 of the Constitution of the Republic of Belarus, subpoint 1.1 of point 1 and point 3 of the Decree of the President of the Republic of Belarus of June 26, 2008 № 14 “On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus”

in open court session in the exercise of obligatory preliminary review considered the constitutionality of the Law of the Republic of Belarus “On Making Alterations and Addenda to the Subsoil Code of the Republic of Belarus”.

Having heard the reporting judge T.V. Voronovich, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Making Alterations and Addenda to the Subsoil Code of the Republic of Belarus”, the Subsoil Code of the Republic of Belarus and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following:

The Law of the Republic of Belarus “On Making Alterations and Addenda to the Subsoil Code of the Republic of Belarus” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly on April 2, 2013, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on April 18, 2013 and submitted for signing by the President of the Republic Belarus.

The adoption of the Law is determined by the need to improve the rules regulating social relations arising in connection with use and protection of subsoil, with a view to protect the interests of the State and the rights and lawful interests of subsoil users and other persons.

In accordance with the alterations and addenda made to the Subsoil Code, definitions of “mineral waters” and “unauthorised use of subsoil” are introduced, the competence of state bodies in state administration and regulation of the use and protection of subsoil are specified, the possibility of investment activities regarding subsoil under an investment agreement with the Republic of Belarus is envisaged, the conditions of granting and use subsoil are modified, etc.

While reviewing the constitutionality of the Law the Constitutional Court proceeds from the following.

1. According to the Constitution of the Republic of Belarus property may be state-owned or private; the State shall grant equal rights to all to conduct economic and other activities, except for those prohibited by law, and guarantee equal protection and equal conditions for development of all forms of ownership; 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 (points one, two and five of Article 13).

In order to implement these constitutional provisions Article 1 of the Law provides for abolition of extraction limits of minerals in general use and groundwater (point 8), increase the extraction depth of minerals in general use (from 2 to 5 meters) and exception of a maximum depth of drill wells for groundwater extraction by proprietors, owners, users and tenants of land (land users) within the boundaries of land allotted to them for purposes not related to recovery of income, without providing a mining lease, setting standards for the use and protection of land on terms of assurance of environment protection legislation requirements, the legislation on protection and use of land, the legislation on architectural, urban planning and construction activities (point 10). In addition, the Law extends the terms of granting subsoil for extraction of minerals, use of geothermal resources of subsoil, and provides for the possibility to prolong these terms in case of incomplete extraction of minerals or under-utilisation of geothermal resources of the subsoil within the given mining lease (point 16 of Article 1).

According to the Constitutional Court, these provisions of the law aimed at improvement of efficiency of use of subsoil, the most efficient use of land, set up the legal basis for balanced regulation of property relations in the interests of the State, the rights and lawful interests of subsoil users and other persons.

2. The subsoil, waters and forests are the exclusive property of the State; the State shall supervise the rational utilisation of natural resources to protect and improve living conditions, and to preserve and restore the environment (part six of Article 13, part two of Article 46 of the Constitution).

According to Article 84 of the Constitution the President of the Republic of Belarus shall exercise powers entrusted to him by the Constitution and laws.

On the basis of these constitutional provisions point 4 of Article 1 of the Law specifies the competence of the President of the Republic of Belarus in the field of use and protection of subsoil in part of determining the form of a concession agreement when deciding whether a concession in respect of a subsoil lot is needed.

Under part one of Article 106, Article 107 of the Constitution, Articles 8 and 10 of the Subsoil Code the Council of Ministers of the Republic of Belarus is a central body of state administration of executive power in the Republic of Belarus and state administration and regulation in the field of use and protection of subsoil.

According to points 5 – 8 of Article 1 of the Law the competence of the Council of Ministers, the Ministry of Natural Resources and Environmental Protection of the Republic of Belarus, Ministry for Emergency Situations of the Republic of Belarus, local Councils of deputies, executive and administrative bodies in the field of use and protection of subsoil is specified. Thus, the Council of Ministers shall have the power to establish the procedure of building on areas of deposits, which is aimed at implementation of rational development of areas of mineral deposits, taking into account the need to ensure the safety of mining operations and full excavation of minerals (points 5 and 40 of Article 1 of the Law).

The Constitutional Court notes that the specification by the rules of the Law of the competence of state authorities by which the State implements its rights of possession, use and disposal of subsoil is aimed at the most complete and effective implementation of the constitutional obligation of the State to control the rational management of natural resources.

3. In accordance with the Constitution the Republic of Belarus shall be bound by the principle of supremacy of law (Article 7). With regard to the right of State ownership of the subsoil this principle is expressed in the unity and consistency of the legal regulation of social relations arising from the implementation of this right, inadmissibility of derogation from requirements of the law on the grounds of expediency.

According to the Subsoil Code the right to use subsoil areas and possess, use and dispose of extracted minerals occur also due to a concession agreement. However, the exclusive property of the Republic of Belarus of the objects does exclude out investment activities in relation to these objects (part two of Article 4 of the Investment Code of the Republic of Belarus).

In order to improve the legal regulation of investment activity alterations and addenda are made to Articles 6, 14, 16, 29, 32 and 33 of the Subsoil Code. They provide for the possibility of implementation of investment projects on the territory of the Republic of Belarus in respect of subsoil on the basis of a concession or an investment agreement with the Republic of Belarus (points 3, 9, 16, 19 and 20 of Article 1 of the Law).

Article 37 of the Subsoil Code regulating granting of subsoil areas in concession is set out in new wording. Now it provides for transfer of rights to the previously granted geological or mining allotment to a legal entity, created as a result of reorganisation (a legal successor of the legal entity to whom such an allotment was given earlier) as follows: according to the transfer deed in case of reorganisation in form of a merger, acquisition, conversion of a legal entity, and according to division balance sheet in the case of reorganisation in the form of division, separation of a legal entity (point 22 of Article 1 of the Law).

These provisions of the Law are aimed at implementation of the rule of law and of the principle of legal certainty, which is based on the latter, and to ensure the completeness, consistency and complexity of the legal regulation of social relations in the field of rational use and protection of subsoil.

4. As provided by point 17 of Article 1 of the Law the point 4 of Article 30 of the Subsoil Code is set out in new wording. It defines territories and natural objects, where, in accordance with legislative acts, the use of subsoil may be prohibited or restricted; provides for the ban on extraction of peat deposits with a remaining peat layer less than 50 cm, as well as deposits that are reserved for special purposes (medical, integrated and biothermochemical processing) and containing bituminous, hydrolytic and mud-cure materials.

In the view of the Constitutional Court, these provisions of the Law, imposed to ensure rational use and protection of subsoil, to prevent depletion of minerals, conform to part one of Article 46 of the Constitution, which enshrines the right of everyone to a conducive environment.

Based on the identified constitutional and legal meaning of the Law the Constitutional Court finds that the Law by its content is aimed to improve legal regulation of public relations connected with granting subsoil to use, its use, investment activity, control of rational use of natural resources, and thereby to ensure protection of the interests of the State, who is the exclusive proprietor of subsoil, as well as the rights and legitimate interests of subsoil users and others persons.

The Law is adopted by the House of Representatives of the National Assembly of the Republic of Belarus within competence and in accordance with point 2 of part one of Article 97 of the Constitution, approved by the Council of the Republic of the National Assembly of the Republic of Belarus in accordance with point 1 of part one of Article 98 of the Constitution.

In view of the foregoing the Constitutional Court concludes that the Law is in conformity with the Constitution as to the content of its rules, form of the act and procedure of its adoption.

Guided by parts one, seven of Article 116 of the Constitution of the Republic of Belarus, parts eight, thirteen, fourteen of Article 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, subpoint 1.1 of point 1 and point 3 of the Decree of the President of the Republic of Belarus of June 26, 2008 No. 14 “On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus”, the Constitutional Court of the Republic of Belarus

 RULED:

1. To recognise the Law of the Republic of Belarus “On Making Alterations and Addenda to the Subsoil Code of the Republic of Belarus” conforming to the Constitution of the Republic of Belarus.

2. The present decision shall come into force from the date of its adoption.

3. To publish the present decision in accordance with the legislation.

Presiding Officer – P.P. Miklashevich,

Chairman
of the Constitutional Court
of the Republic of Belarus