12 January 2006 № D-191/2006
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, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.Z. Shuklin, has examined on the ground of Article 40, part four of Article 122 and part one of Article 116 of the Constitution of the Republic of Belarus application of a citizen on verification of constitutionality of the rules under which the ticket for one trip in bus, tram, trolleybus (coupon) is valid only within the period of 10 days after imposition of new rates for transportation of passengers by city public transport.
Citizen in his application to the Constitutional Court specified that in autumn of 2004, he received his pension and bought 10 preferential tickets that are valid for one occasion only at nominal value of 150 r. On the expiry of 10 days after increasing the rate up to 180 r. unused by him coupons were found to be invalid and he was refused in refunding their value.
Having studied the relevant provisions of the Constitution, Civil Code and Law "On motor transport and motor transportation" and other normative legal acts of the Republic of Belarus concerning the issues under examination, the Constitutional Court found the following.
Article 740 of the Civil Code of the Republic of Belarus (hereinafter is also referred to as CC) stipulates that under the contract of carriage of passenger the carrier shall be obliged to transport passenger to the point of destination, and the passenger is obliged to pay the fixed fare. Conclusion of the contract of carriage of passenger shall be certified by ticket. The form of ticket shall be determined in accordance with the procedure prescribed by transport rules and codes.
Similar provisions are contained also in Article 48 of the Law of the Republic of Belarus "On motor transport and motor transportation". During the trip by the ordinary route, passenger shall be bound to have ticket, and carrier or operator of motor transportation shall be obliged to secure sale for passenger of the ticket of the standard for the specific type of motor transportation (Article 42 of the Law).
While acquiring ticket (coupon) for one trip in city public transport, citizen shall conclude the contract of carriage of passenger (Article 740 of CC), but real execution of the treaty may take place in future.
Fare in city public transport as a cost of the treaty shall be specified by the rates. Local Councils of deputies, executive and administrative bodies shall be entitled to set up the regulated (fixed or maximum) rates for public conveyance in accordance with the procedure established by the legislation (Article 16 of the Law "On motor transport and motor transportation"). Under the list of goods (works, services), prices (rates), premiums (discounts) to which shall be subject to regulation by the Council of Ministers of the Republic of Belarus, by republican state bodies, by other state organizations that are subordinated to the Government of the Republic of Belarus, by the National Bank, by oblast executive committees and by Minsk city executive committee approved by Decree of the President of the Republic of Belarus of 19 May 1999 No. 285 "On some measures on stabilization of prices (rates) in the Republic of Belarus", the rates for city public transportation of passengers and goods shall be fixed, in particular, by Minsk city executive committee in coordination with the Ministry of Economic of the Republic of Belarus.
The main obligation of passenger shall be payment for trip. Acquisition of ticket shall mean the fulfillment of the obligation in question.
In addition, the Constitutional Court emphasizes that the passengers of the city public transport shall have the right to choose independently the kind of ticket that shall be: ticket for one trip in bus, tram, trolleybus (coupon); ticket for ten-days period; monthly ticket. Attention should be paid also to the fact that if monthly tickets and tickets for ten-days period are limited in the term of their validity, then the use of the ticket for one trip in bus, tram, trolleybus (coupon) shall not be restricted beforehand by any calendar terms and there is also no limitation of the quantity of the tickets that may be acquired. For example, the passenger immediately may buy several tickets that are valid for one occasion but to use only one of them, and this means that the definite number of tickets may remain unused for a long period of time. The Constitutional Court also points out that the normative legal acts do not stipulate the rule on validity of ticket of old type during the period of ten days after imposition of new rates. The rule in question is stipulated by the organization-carrier Communal Unitary Enterprise "Minsktrans".
It is necessary to underline that the rights of passenger may be related not only to the conclusion and execution of the contract of carriage, but also with alteration of originally concluded treaty, as well as with the refusal of its execution.
According to point 2 of Article 392 of CC, if after conclusion and before termination of effect of the contract there was adopted the act of legislation that specifies the obligatory for the parties rules that are different from those that were effective at the moment of conclusion of the contract, then the terms of the concluded contract must be brought into line with the legislation, unless otherwise is stipulated by the legislation.
Legislation is stipulated the right of the authorized bodies to alter the rates, i.e. practically to change unilaterally the essential terms of the contract (pay for carriage).
Alteration of rates for transportation of passengers by city public transport (increasing of rates) shall affect the rights of citizens and, therefore, it is necessary to observe strictly the rules on enforcement of normative legal acts that fix new rates, the more so that the passage under the ticket (coupon) of old type under conditions of validity of new rates shall be considered as administrative offence, as well as shall entail liability.
Part four of Article 65 of the Law "On normative legal acts of the Republic of Belarus" specifies that the normative legal acts involving the rights, freedoms and obligations of citizens shall come into legal force only after their official publication. Moreover, normative legal acts shall be subject to publication after their inclusion in the National Register of legal acts of the Republic of Belarus, unless otherwise is stipulated in the Law in question.
After adoption (issuing) of normative legal acts and their enforcement, there must be carried out proper organization of their realization, including timely information of the executors of content of adopted acts (Article 73 of the Law in question).
According to point 4 of Provision on official publication and enforcement of legal acts of the Republic of Belarus approved by Decree of the President of the Republic of Belarus of 10 December 1998 No. 22 with alterations and addenda, official publication is information of all about legal acts by way of representation of their texts in full conformity with the signed originals in official editions, in particular, legal acts of Minsk city executive committee - in periodicals determined by Minsk city executive committee in accordance with the legislation of the Republic of Belarus.
Decision of Minsk city executive committee of 24 December 2002 No. 1945 "On body of official publication of normative legal acts of Minsk city executive committee" determined newspaper "Minski courier" as the body of official publication of normative legal acts of Minsk city executive committee.
Practice signifies that application of the specified provisions is not always subject to observance.
Thus, Decision of Minsk city executive committee of 14 December 2005 No. 2199 "On rates for transportation of passengers by city public transport" that is registered in National Register of legal acts of the Republic of Belarus of 15 December 2005 No. 9/4731 since 20 December 2005 there have been increased the rates for transportation of passengers. In particular, the value of one trip in bus, tram, trolleybus, metro of the city of Minsk is: under full rate - 460 r. (previously - 400 r.); for passengers who have privileges - 230 r. (previously - 200 r.); tickets for sale by drivers - 500 r.
According to the provisions of the Law "On normative legal acts of the Republic of Belarus" enforcement of normative legal acts should follow their publication. However, the specified decision of Minsk city executive committee was adopted of 14 December 2005, and was enforced of 20 December 2005, i.e. before its official publication in newspaper "Minski courier" of 26 December 2005.
The Constitutional Court emphasizes that the authorized bodies and organizations took definite steps as regards informing of population about alteration of the rates for transportation of passengers since 20 December 2005 by city public transport. Thus, according to the information of Communal Unitary Enterprise "Minsktrans" all the bus, trolleybus and tram parks were announced of 19 December 2005.
At the same time, in the opinion of the Constitutional Court, the executed work shall not secure in full the right of citizens to information (Article 34 of the Constitution) and shall not signify about observance of the procedure of publication of normative legal acts and their enforcement stipulated in the Law "On normative legal acts of the Republic of Belarus" and Decree of the President of the Republic of Belarus of 10 December 1998 No. 22.
Moreover, the Constitutional Court found that in the fulfillment of the specified decision, Director of the branch "Agency of Communal Unitary Enterprise Minsktrans" has issued Order of 15 December 2005 No. 193 that before producing tickets for one trip of new type there will be used and distributed the tickets for one trip of old type with nominal value of 300 r. - at the price of 460 r.; for the passengers who have privileges with nominal value of 150 r. - at the price of 230 r.; in case of sale of tickets by drivers with nominal value of 120 r. - at the price of 500 r. (letter of 16 December 2005 No. 03-05/1251 forwarded to the Constitutional Court). Similar decisions have been also taken previously while altering the rates for transportation of passengers by city public transport.
Study of practice of legal regulation of passage of citizens in city public transport shall make it possible to come to the conclusion that in case of alteration of the rates for transportation of passengers by city public transport before producing of the tickets for one trip (coupons) of new type, there shall be distributed the tickets of old type at new cost. That is confirmed by both the application of the citizen and Order of Director of the branch "Agency of Communal Unitary Enterprise Minsktrans" has issued Order of 15 December 2005 No. 193 "On fulfillment of Decision of Minsk city executive committee of 14.12.2005 No. 2199".
The Constitutional Court pays attention to the fact that one of the peculiarities of the contract of carriage of the passenger is the circumstance that the party of this treaty is the passenger (citizen-consumer). Therefore, the specified type of transportation shall be subject to the Law of the Republic of Belarus "On protection of rights of consumers", in particular, point 3 of Article 30 of this Law stipulates that the consumer shall have the right to cancel the contract about rendering of services and to demand full recovery of the losses, if he/she discovers deviations from the terms of the contract that change the result of the service for worth.
Thus, proceeding from the provisions of CC and the Law "On protection of rights of consumers", citizens as consumers of beforehand paid transportation services, in the opinion of the Constitutional Court, must have the right to fair compensation of their expenses in case of alteration of the rates for transportation of passengers by city public transport.
On the basis of the fact that legal requirements and decisions based thereon shall be founded on principles of legality, reasonableness and fairness with maximum allowance for public and private interests, the Constitutional Court deems that in case of alteration of the rates for transportation of passengers by city public transport, citizens shall have the right to receive timely and reliable information, as well as to enter the nominal value of tickets of old type in payment while acquiring the tickets of new rates.
On the grounds of above stated and guiding by the Articles 40, part four of Article 122, 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 rights, freedoms and lawful interests of citizens, to propose Minsk city executive committee:
to secure strictly the observance of requirements of legislation on procedure of enforcement of decisions concerning alteration of the rates for transportation of passengers by city public transport, bearing in mind that decisions related to the rights, freedoms and obligations of citizens shall come into legal force in accordance with the Law "On normative legal acts of the Republic of Belarus" and Decree of the President of the Republic of Belarus of 10 December 1998 No. 22 only after their official publication, as well as proper informing of population about alteration of rates for transportation of passengers;
to execute proper legal regulation of relations concerning alterations of the rates for transportation of passengers by city public transport, in particular, to consider the issue on possibility of accounting of the nominal value of coupons of old type while buying coupons of new rates.
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
of the