The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court of the Republic of Belarus G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, S.Y. Danilyuk, K.I. Kenik, V.V. Podgrusha, A.G. Tikovenko, R.I. Filipchik, V.Z. Shuklin, has examined on the grounds of Article 40 and part one of Article 116 of the Constitution of the Republic of Belarus application on legal regulation of activities of a housing and building co-operative (hereinafter is also referred to as HBC), procedure of election and functioning of the governing bodies of HBC and some issues concerning control over the activities of HBC. Issues of analogous content have been raised before the Constitutional Court by the citizens and by the state bodies repeatedly (applications of 13 December 2005, of 26 May 2006, of 16 October 2006, of 23 November 2006 etc.)

     Having analyzed the relevant provisions of the Constitution, the Housing Code, the Model regulations of HBC and other normative legal acts of the Republic of Belarus related to the issues under examination, the Constitutional Court found the following.

     According to part one of Article 107 of the Housing Code (hereinafter is also referred to as HC) of 1999, HBC is the organization of citizens who build their houses that shall be created for the purposes of building the dwelling house (houses) and it's (their) subsequent operation and management.

     Citizens are considered to be the members of the organization of citizens who build their houses and shall acquire the relevant rights and obligations from the moment of state registration of the organization in question (part one of Article 108 of HC).

     In accordance with point 6 of the Model regulations of a housing and building co-operative approved by Resolution of the Council of Ministers of the Republic of Belarus of 15 November 1984 No. 400 (hereinafter is also referred to as the Model regulations of HBC), HBC shall carry out activities on the basis of the regulations adopted by the general meeting of the citizens who are joining a co-operative. The regulations of a co-operative shall be registered at the executive committee of the region, city, district in city Council of deputies, in the territory of which a co-operative was created.

     Points 62, 63, 65 and 67 of the Model regulations of HBC envisages, in particular, that the board of administration of HBC shall be the general meeting of the members of a co-operative and the governing body of a co-operative. If a co-operative consists of 50 and more members, then instead of the general meetings it may be called the meetings of the authorized representatives. The authorized representatives shall be elected at the general meeting of the members of a co-operative for the time period of two years.

     The general meeting of the members of a co-operative (meeting of authorized representatives) shall be the highest administrative body of a co-operative. The general meeting (meeting of authorized representatives) shall be found competent, if not less than 2/3 of the total number of the members of a co-operative (authorized representatives) take part in it. Decisions shall be adopted by majority vote of those members of a co-operative (authorized representatives) who are present. Decision on reorganization or liquidation of a co-operative shall be taken only by the general meeting of the members of a co-operative. The general meeting of a co-operative called for solution of the specified issues shall be found competent, if not less than 3/4 of members of a co-operative take part in it. Decisions shall be taken by majority vote of 3/4 of voices of those members of a co-operative who are present.

     The governing body of HBC shall be elected as a result of submission of the executive committee of a local Council of deputies by the general meeting of members of a co-operative (meeting of authorized representatives) for the time period of two years from among the members of a co-operative. The governing body of a co-operative is the executive body of a co-operative and in its activities shall be accountable to the general meeting of the members of a co-operative (meeting of authorized representatives).

     The content of the indicated norms shall specify that decision on reorganization or liquidation of a co-operative may be adopted only with the observance of the terms and conditions stipulated in the Model regulations of HBC (points 81-85), as well as that the board of administration of HBC may be elected only by the majority vote of those members of a co-operative (authorized persons) who are present. Therefore, it is inadmissible to hold election of the board of administration of HBC by some other way, including by way of taking into account the written applications of its members, as it is proposed in practice according to part five of Article 17 of the Law "On joint house and grounds" (condominium).

     The application points out that certain provisions of the Model regulations of HBC are incompatible with the norms of HC, and due to that there are difficulties in their application in practice. Individual members of HBC refuse to take part in holding general meetings (meetings of authorized representatives), and that makes practically impossible both election of the board of administration and exercise the powers as a whole that are referring to the authority of a co-operative.

     Analysis of HC of 1983, HC of 1999, the Model regulations of HBC shall make it possible to come to the conclusion that the provisions of the Model regulations of HBC have really become outdated in many respects and are not in line with the norms of HC of 1999 and other acts of the housing legislation. There have been also changed the legal regulation of relations concerning having control over the activities of HBC by local executive and administrative bodies.

     In particular, unlike HC of 1983 that vested the executive committees of the Council of deputies with the obligation to exercise control over the activities of HBC (point 7 of part one of Article 18, point 8 of part one of Article 19, point 6 of part one of Article 20, Article 133), HC of 1999 contains no provisions in question. There is also no stipulation of the right of the relevant executive committees to approve decisions of the general meeting of the members of HBC (meeting of authorized representatives), to repeal the contradictory to the legislation decisions of the general meeting or the governing body of HBC etc.

     At the same time, in practice the subject to application are provisions of the Model regulations of HBC adopted on the grounds of HC of 1983 that are not in conformity with the provisions of HC of 1999 and other acts of the housing legislation.

     In the majority of HBCs there have been set up unexecuted condominium, since there are three categories of owners of immovable property: HBC; members of HBC who executed (legalized) the right of ownership to living accommodation; citizens who acquired flats at the secondary market or who acquired flats according to the procedure of inheritance but who did not join the members of HBC. Due to that the specified subjects of housing law relations face the issues on condominium, on the method of management, on election of members of the governing body of a co-operative etc.

     HC of 1999 (Article 21) and other acts of the housing legislation, in particular, specify that regions, city, district in cities, settlement, rural executive and administrative bodies shall have the state control over the use and maintenance of the state and private housing funds.

     Norms of Articles 107, 108 of HC stipulate that HBC shall be set up and shall exercise its powers in accordance with the regulations of the organization, as well as in compliance with the legislation of the Republic of Belarus.

     In the opinion of the Constitutional Court, the specified provisions shall not regulate to the full the forming relations between HBC and owners of flats in HBC, as well as among the members of HBC. Moreover, the Constitutional Court emphasizes that as a whole the provisions of the Model regulations of HBC have become outdated and do not secure proper regulation of housing relations in the field of activities of HBC.

     It is supposed that many of issues may be solved in new HC, the preparation of which is carrying out at the present moment. However, legal regulation of activities of HBC, in particular, the procedure of adoption of decisions of HBC shall be exercised within shorter time periods.

     The Constitutional Court deems that legal rules and decisions based thereon must be grounded not only on the principles of reasonableness and fairness with maximum allowance for private and public interests but also on timely solution of problematic situations.

     On the grounds of above stated and guiding by Article 40, part one of Article 116 of the Constitution, Articles 1, 7, 36, 38, 40, 40¹ of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court

     RULED:

     1. To emphasize imperfection of the norms of housing legislation concerning establishment and activities of HBC, a well as having control over the activities of HBC by local executive and administrative bodies, presence in it of contradictions, gaps that shall make it difficult its application in practice. In a number of instances this fact shall exclude the possibility of proper exercise by HBC of their functions and, consequently, shall not secure to the full the protection of housing rights and lawful interests of members of HBC, owners of living accommodation in the houses of HBC, as well as the state interests.

     2. To propose the Council of Ministers of the Republic of Belarus before the adoption of new Housing Code to make the necessary alterations and addenda into the Model regulations of a housing and building co-operative with an allowance for the norms of the effective housing legislation, the Civil Code of the Republic of Belarus, the Law of the Republic of Belarus "On joint house and grounds" and other acts of legislation with the purpose of removal of legal obstacles for proper carrying out of the activities of HBC, in particular, that shall make it possible for HBC in case of necessity to adopt decisions not only at the general meeting but also in a different way, for example, by way of taking into account of the received in written form applications of its members, as it is stipulated by part five of Article 17 of the Law "On joint house and grounds".

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

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

Presiding Officer —
Chairman of the Constitutional Court
of the Republic of Belarus                                                                                                G.A. Vasilevich