The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, K.I. Kenik, A.G. Tikovenko, R.I. Filipchik, V.Z. Shuklin, having examined on the ground of Article 40 and part one of Article 116 of the Constitution of the Republic of Belarus application of Gomel city executive committee on legal regulation of relations related to concession of the living accommodations into ownership in place of living accommodations in a tenement-house that are found to be unfit for habitation.

     Having analyzed the relevant provisions of the Constitution, Housing Code and other enforceable enactments of the Republic of Belarus concerning the issues under examination, the Constitutional Court found the following.

     Under part three of Article 44 of the Constitution, the property acquired by lawful means shall be safeguarded by the state.

     Article 105 of the Housing Code of the Republic of Belarus (hereinafter is also referred to as HC) envisages that if a citizen is the owner of a living accommodation in a tenement-house and this house (living accommodation) is under emergency condition or threatens to collapse, subject to re-equipment as the house that is not fit for habitation or subject to demolition due to withdrawal of the plot of land for the state needs, then the enterprise, establishment, organization that are setting aside the plot of land or that are assigning the dwelling house (living accommodation) under re-equipment shall be passed into the ownership of this citizen jointly with the members of his/her family which is equivalent as regards services and utilities, total space which is not smaller than the previously occupied living accommodation and that meets the relevant requirements of Article 73 of HC, or at his/her will there shall be paid monetary compensation for his/her own living accommodation fixed on the grounds of opinion of expertise as regards the cost of the living accommodation.

     The content of the specified Article shall stipulate that the owner of the living accommodation in a tenement-house shall be passed in place of this living accommodation another living accommodation into the ownership jointly with the members of his/her family only in instances, if the house (living accommodation) is:

     under emergency condition or threatens to collapse;

     subject to re-equipment as the house that is not fit for habitation;

     subject to demolition due to withdrawal of the plot of land for the state needs.

     In accordance with Resolution of the Council of Ministers of the Republic of Belarus of 7 September 1999 No. 1392 "On procedure of examination of living accommodations, finding them to be at variance with the stipulated sanitary and technical requirements for living and to be unfit for habitation" the conditions under which living accommodations shall be found to be at variance with sanitary and technical requirements for living and to be unfit for habitation shall be stipulated by the Ministry of Housing and Communal Economy with co-ordination of the Ministry of Architecture and Building and the Ministry of Public Health. Sub-item 2.2 of point 2 and point 6 of Resolution of the Ministry of Housing and Communal Economy of the Republic of Belarus of 2 May 2000 No. 4 "On approval of conditions under which living accommodations shall be found to be at variance with sanitary and technical requirements for living and to be unfit for habitation" shall specify that unfit for habitation shall be living accommodations, if the observed depreciation of stone dwelling houses is more than 70 %, and of wooden houses and with the walls made of other materials with the observed depreciation of more than 65 %, as well as in instances of emergency conditions of living accommodations where their elimination is impossible.

     According to points 11 and 12 of the Provision on procedure of examining the conditions of living accommodations, finding them to be at variance with the specified sanitary and technical requirements for living and to be unfit for habitation approved by Resolution of the Council of Ministers of 7 September 1999 No. 1392, if a living accommodation is finding by the executive or the administrative body to be at variance with the specified sanitary and technical requirements for living and to be unfit for habitation, then the body in question shall submit to the oblast (Minsk city) executive committee the proposal on renovation of living accommodations for their proper use, re-equipment for their use for other purposes (relegation to not fit for habitation) or on demolition of a living accommodation that is not fit for habitation. In addition, decision shall be accorded with the owner or the legal entity that shall conduct day-to-day operation of the accommodation in question.

     Oblast (Minsk city) executive committee shall consider the submitted materials and take decision on renovation for the proper use, re-equipment for the use for other purposes (relegation to not fit for habitation) or on demolition of a living accommodation that is not fit for habitation.

     At the same time, the Constitutional Court emphasizes that the Housing Code shall not regulate in full measure the procedure and grounds (conditions) for finding living accommodations to be unfit for habitation as regards sanitary and technical requirements, as well as legal consequences of such a finding, and the issues arising in practice shall signify this.

     Moreover, system interpretation of the norms in question shall make it possible to come to the conclusion that if the living accommodation that is in the tenement-house and owned by a citizen was found under the prescribed procedure to be not fit for habitation and subject to no renovation, but is subject to re-equipment as the house that is not fit for habitation or subject to demolition, then the citizen who is the owner jointly with the members of his/her family shall be assigned another dwelling house into the ownership which is equivalent as regards services and utilities, total space which is not smaller than the previously occupied living accommodation within the given locality or at his/her will there shall be paid monetary compensation for his/her formerly owned living accommodation.

     For example, if the owner (four members in the structure of the family) lives in one-room flat with 30,62 square meters of the total space of tenement-house and the flat in question was found according to the prescribed procedure to be unfit for habitation and to be subject to the re-equipment as accommodation that is not fit for habitation, then the owner, jointly with the members of his/her family, must be granted into the property one-room flat with no less than 30,62 square meters of the total space.

     Consequently, in the opinion of the Constitutional Court, the provisions of Article 105 of the Housing Code shall be also applicable in instances of finding according to the prescribed procedure the living accommodations to be unfit for habitation as regards sanitary and technical requirements due to their emergency conditions or wear and tear.

     Furthermore, the legislation specifies that the owner in this case shall have the right to abandon the flat and to demand monetary compensation fixed on the grounds of expertise opinion on the cost of the living accommodation that is not fit for habitation (part one of Article 105 of the Housing Code). Furthermore, if the owner is allotted the flat of the total space more than the seize of the occupied flat, then neither the Housing Code nor other acts of legislation specify the difference in the cost of the flat that is not fit for habitation and the assigning flat.

     The Constitutional Court pays attention to the fact that incompleteness of the housing legislation, gaps, in particular, absence in HC of the list of grounds (conditions) for finding the living accommodations to be unfit for habitation as regards sanitary and technical requirements, as well as legal consequences of such a finding shall both hamper application of the norms of law in practice and secure not in full scope the protection of housing rights and legitimate interests of the proprietor and the state.

     Due to that, the Constitutional Court underlines the necessity of proper legal regulation of the procedure and grounds (conditions) for passing the living accommodations into the ownership in cases of finding to be unfit for habitation the living accommodations owned by citizens in tenement-house, in particular, due to the emergency conditions or were and tear, by way of improvement of the provisions of HC.

     At the same time, the Constitutional Court, proceeding from the fact that the legal regulations and decisions based thereon must be grounded on the principles of reasonableness with maximum consideration of private and public interests, shall deem it possible to propose the law-maker to stipulate the rule, under which, at the will of the owner, he/she may be allotted the living accommodation of a greater size with the payment for the space that is over the size of the living accommodation occupied previously and found to be unfit for habitation.

     On the grounds of above stated and guiding by the 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. For the purposes of more full protection of the housing rights of citizens who are owners and the legitimate interests of the state, to propose the House of Representatives of the National Assembly of the Republic of Belarus to stipulate in the Housing Code the proper legal regulation of the procedure of and the grounds (conditions) for passing the living accommodations in cases of finding the living accommodations in the tenement-house and owned by citizens to be at variance with the specified for habitation sanitary and technical requirements and unfit for habitation due to their emergency conditions or wear and tear.

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

     3. To publish the resent Decision in accordance with the legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich