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 basis of Article 40, part one of Article 116, part four of Article 122 of the Constitution of the Republic of Belarus the application concerning the legality of the Provision on procedure of registration of citizens of the city of Grodno who whish to join the co-operative on constructing and maintenance of garages for storage of individual means of transportation, organization and activity of these co-operatives approved by Decision of Grodno city executive committee of 19 June 2002 No. 528 in part of regulation of the right of ownership of members of the garage co-operative concerning return for citizens of shares because of their removal from among the members of the garage co-operative, concerning the inheritance of the share of a member of the garage co-operative.

     Having examined the provisions of the Constitution, the Civil Code of the Republic of Belarus (hereinafter is also referred to as CC), other normative legal acts of the Republic of Belarus that are referring to the issues under consideration, the Constitutional Court found the following.

     The State shall guarantee everyone the right of property. A proprietor shall have the right to possess, enjoy, and dispose of assets either individually or jointly with others. The inviolability of property and the right to inherit property shall be protected by law (Article 44 of the Constitution).

     According to CC garage co-operatives shall be referred to non-profit-making organisations and shall be consumer co-operatives.

     A voluntary association of citizens and legal persons on the basis of membership for the purpose of satisfying material (property) and other requirements of participants to be effectuated by means of combining the property share contributions of the members thereof shall be a consumer co-operative (point 1 of Article 116 of CC).

     According to point 4 of Article 219 of CC that specifies the grounds for acquisition of the right of ownership, the members of housing co-operative, housing construction co-operative, country cottage (dacha) co-operative, garage co-operative or other consumer co-operative, other persons who have the right to accumulation of shares, who have made in full their share contribution for the apartment, country cottage (dacha), garage, or other premise granted these persons by the co-operative shall acquire the right of ownership to the specified property since the time period of registration of this right in accordance with the prescribed procedure.

     Point 2 of Article 220 of CC shall also stipu-late that in instances when newly created immovable property is subject to the state reg-istration, the right of ownership to it shall originate from the moment of this registration, unless otherwise specified by the legislation. According to point 3 of the said Article of CC before the completion of creation of the immovable property, or, in the relevant cases, before its state registration, unless otherwise specified by the legislation, the rules on the right of ownership for the building materials and other property that is the ground for the creation of the immovable property shall be subject to application.

     Article 1088 CC, in particular, shall specify that the component of inheritance of a member of the consumer co-operative shall include the share of the deceased member of the co-operative (point 4); the heir of the member of the garage co-operative shall have the right to be admitted as a member of the relevant co-operative (point 6); the solution of the issue who of the heirs may join the consumer co-operative in the event when the rights of the testator concerning the related legal person were transferred to several heirs, as well as the procedure, ways and time periods of payments to the heirs, who did not become the participants of the co-operative, of the amounts due to them or, instead of these amounts issuing the property in kind, shall be specified by the legislation on consumer co-operatives and by the constituent documents of the relevant legal person (point 7).

     The legal status of garage co-operatives under part two of point 6 of Article 116 of CC shall be fixed by the Code in question and by other legislation.

     At present, Resolution of the Council of Ministers of the Republic of Belarus of 5 August 1977 No. 254 "On organization of co-operatives on constructing and maintenance of open car parks or garages for storage of means of transportation owned by citizens" with further alterations and addenda shall be referred, in particular, to other legislation. The given Resolution approved the Model Regulations of the co-operative on constructing and maintenance of open car parks or garages for storage of means of transportation owned by citizens (hereafter is also referred to as Model Regulations). The Model Regulations shall regulate the procedure of organization of the co-operative, aim, rights and duties of the co-operative, funds of the co-operative, rights and duties of members of the co-operative, management bodies of the co-operative, as well as the cessation of the activity of the co-operative.

     Point 2 of Resolution of the Council of Ministers of the Republic of Belarus of 5 August 1977 No. 254 shall entrust the executive committees of city (regional) Council of deputies with powers on registration of citizens (part one) who wish to join the co-operative on constructing and maintenance of open car parks or garages, as well as specify the categories of citizens who may be registered (part two), who may join the co-operative primarily (part three), and those who are out of turn (part four).

     Decision of Grodno city executive com-mittee of 19 June 2002 No. 528 has approved the Provision on procedure of registration of people of the city of Grodno who wish to join the co-operative on constructing and maintenance of garages for storage of individual means of transportation, organization and activities of those co-operatives (hereinafter is also referred to as Provision).

     The Provision equally with the issues related to registration shall regulate other issues: a member of the garage co-operative who was removed therefrom shall be deprived of the right to use the garage (point 17); in the event of removal from the co-operative the removed member of the co-operative shall be returned the shares after estimation of the garage by the specialized commission (GOUP RTI), and in the event of constructing by economic method - the cost of build-ing materials, executed works at the moment of removal after making the share by a newly admitted member of the co-operative (point 18); calculation of the sum that is subject to payment for the removed member of the co-operative shall be carried out by the general meeting (inspection group) (point 19); the share of the deceased member of the co-operative shall be passed on to his/her heirs in accordance with the prescribed procedure. Heirs - members of the family of the deceased shall have preferential right to further use the given co-operative under the condition of join it by one of the heirs. The heirs who have no mean of transportation or those who made their refusals to use the garage shall be paid the cost of the share they inherit in accordance with the procedure determined by points 17, 18 of the Provision (point 22).

     The analysis of the specified norms shall indicate that point 17, paragraph two of point 22 of the Provision shall practically reproduce the content of point 25 and part two of point 27 of the Model Regulations. Point 18 of the Provision in part of payment of shares for the removed member of the co-operative is in line with part one of point 20 of the Model Regulations. Point 19 of the Provision in its turn in part of calculation of the sum that is subject to payment for the removed member of the co-operative by the general meeting (inspection commis-sion) is not at variance with point 29 of the Model Regulations that fixes the competence of the general meeting of the co-operative, as well as with points 35 and 36 of the Model Regulations that shall regulate the activities of the inspection commission.

     The Constitutional Court also emphasizes that certain issues that found their stipulation in the Provision (points 22, 24-26) are regulated directly in CC. Those are the grounds for acquisition of the right of ownership (Article 219 of CC), origination of the right of ownership to newly creating prop-erty (Article 220 of CC), inheritance of a share of a member of the consumer co-operative (Article 1088 of CC).

     A number of issues of the Provision as it follows from CC shall be subject to specification directly in the Regulations of the garage co-operative. Thus, according to point 2 of Article 116 of CC the Regulations of the consumer co-operative must contain apart from information specified in point 2 of Article 48 of CC the conditions and the procedure of joining the members of the co-operative and termination of the membership in it; the rights and duties of the members of the co-operative; information about the amount of shares of members of the co-operative; information about the composition and the procedure of making shares by the members of the co-operative and about the procedure of adoption by them decisions, including on the issues the decisions on which shall be subject to adoption unanimously or by the qualified majority of voices, about the procedure of cover by the members of the co-operative of the losses they beard.

     Thus, the challengeable in the application points 17, 18, 19 and 22 of the Provision are based on the norms of the Model Regulations and are not at variance with them.

     At the same time, the Constitutional Court underlines that certain provisions of the Model Regulations are outdated and are not in full in line with the legislation. Thus, point 7 of the Model Regulations shall specify that the enterprises, establishments and organizations may not be the members of the co-operative, as well as to take part in construction of open car parks and garages of the co-operative at their own cost. However, according to point 1 of Article 116 of CC the consumer co-operative shall be the voluntary association of citizens or citizens and legal persons on the basis of membership in order to meet material (property) and other requirements of participants by way of integration by their members of their property shares.

     At present, the issues of organization and activities of open car parks are regulated by Decree of the President of the Republic of Belarus of 3 October 2006 No. 589 "On regulation of operation of automobile parking places", as well as by Resolution of the Council of Ministers of the Republic of Belarus of 5 January 2007 No. 9 that approved the Rules of organization (building), maintenance of automobile parking places and their use. According to point 3 of the given Rules the right to carry out organization and building of automobile parking places shall have legal persons and (or) individual entrepreneurs who have taken in accordance with the prescribed procedure the decision to organize and build the automobile parking place in co-ordination with the relevant local executive and administrative bodies.

     The Constitutional Court deems that the Model Regulations shall be brought into line with the provisions of the Constitution, the Civil Code, acts of the President of the Republic of Belarus, other normative legal acts of the Republic of Belarus related to organization and activities of garage co-operatives and automobile parking places.

     The Constitutional Court also takes into consideration that on the grounds of subitem 4.1 of point 4 of the Plan of measures on securing the phased settlement of socially significant problems of population approved by Resolution of the Council of Ministers of the Republic of Belarus of 14 March 2006 No. 343 the authorized bodies shall prepare the draft normative legal act on the issues of activities of garage co-operatives.

     On the basis of the abovementioned and guiding by Articles 40, part one of Article 116 of the Constitution, Article 22, 24 of the Code of the Republic of Belarus on judicial system and status of judges, the Constitutional Court

     RULED:

     1. To note that points 17, 18, 19 and 22 of the Provision on the procedure of registration of people of the city of Grodno who wish to join the co-operative on constructing and maintenance of garages for storage of individual means of transportation, organization and activities of those co-operatives approved by Decision of Grodno city executive committee of 19 June 2002 No. 528 are based on the norms of the Model Regulations of a co-operative on constructing and maintenance of open car parks or garages for storage of means of transportation owned by citizens approved by Resolution of the Council of Ministers of the Republic of Belarus of 5 August 1977 No. 254.

     2. Considering the fact that a number of other norms of the Model Regulations of a co-operative on constructing and maintenance of open car parks or garages for storage of means of transportation owned by citizens approved by Resolution of the Council of Ministers of the Republic of Belarus of 5 August 1977 No. 254. are outdated and is not in full in line with the legislation, to propose the authorized bodies to take the measures on bringing by-laws related to the activities of garage co-operatives into line with the Constitution, the norms of the Civil Code, the acts of the President 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 ac-cordance with the legislation.

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