5 January 2005 № D-182/2005
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 K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, R.I. Filipchik, G.B. Shishko, 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 applications of citizens as regards the constitutionality of effective procedure and conditions for return of the resources while terminating share in building of living accommodation.
The applications, in particular, note that the issues of return of money resources for the persons withdrawn from organizations of citizens having built as a result of different reasons, including owing to high rise in the cost of building in comparison with the initially stipulated cost are not properly specified and their settlement shall depend on admittance of new citizens having built in exchange of those withdrawn. There are no normatively fixed time limits for return of money resources.
The problem of return of shares for the citizens withdrawn from organization of citizens having built had been already considered by the Constitutional Court in 2001. On 12 June 2001 it was adopted Decision where the Constitutional Court noted that the terms for the shares returning specified by Temporal provision on procedure of indexation of shares repayment for citizens in instances of their withdrawal from housing and building co-operatives approved by Resolution of the Cabinet of Ministers of the Republic of Belarus of 6 June 1996 No. 375 shall not take into account the peculiarities of creation and expenditure of financial resources of housing and building co-operatives and that shall infringe upon the rights and lawful interests of the members of co-operatives, make worse functioning of housing and building co-operatives as legal entities, delay completion of building of living accommodation and their putting into operation.
The Constitutional Court in the given Decision had proposed the Council of Ministers of the Republic of Belarus: to specify such a procedure of return of the shares which may secure legal protection of both those who are withdrawing and those who are remaining to be the members of housing and building co-operatives, other organizations of citizens having built; to envisage the possible mechanisms of rendering assistance for housing and building co-operatives, other organizations of citizens having built in settlement of the issues concerning return of the shares for citizens withdrawn from among the members of the co-operative (other organizations of citizens having built), taking into account valid excuse of withdrawal, other deserving attention circumstances; in case of necessity to prepare and to make the relevant proposals for the law maker.
Resolution of the Council of Ministers of the Republic of Belarus of 1 December 2001 No. 1735 "On procedure and conditions of return (repayment) of means entered from different resources while terminating (renewal) sharing in building (reconstruction) of living accommodation" has found to be invalid since 1 January 2002 Resolution of the Cabinet of Ministers of the Republic of Belarus of 6 June 1996 No. 375 "On approval of Temporal provision on procedure of indexation of shares returning for citizens in instances of their withdrawal from housing and building co-operatives". At the same time, the Ministry of Architecture and Building with participation of oblast executive committees, Minsk city Executive Committee, public joint-stock company "Savings Bank "Belarusbank" were charged to elaborate and with the agreement of the Ministry of Economy, the Ministry of Finance to approve the provision on procedure and conditions of return (repayment) of means entered from different resources, while terminating (renewal) of participation in building (reconstruction) of living accommodation with the term for its putting into operation since 1 January 2002.
The Ministry of Architecture and Building of the Republic of Belarus of 28 January 2002 No. 3 has approved the Provision on procedure and conditions of return (repayment) of means entered from different resources, while terminating (renewal) of participation in building (reconstruction) of living accommodation (hereinafter is also referred to as Provision).
Point 7 of the Provision envisages that in case of voluntary withdrawal or exclusion of the investor from the organizations of citizens having built (persons having shares in building) common meeting of organization of citizens having built (authorized body) shall take the decision on exclusion of the investor from the composition of organization of citizens having built (on cancellation of contract with a member of sharing building), and on return of payments to the proper quarter. The returning sum of means shall be subject to indexation under the procedure specified by the Provision, taking into account the index of alteration of the cost of building and erection works approved by the date of payment.
In accordance with point 18 of the Provision, calculation of the liable to return payments of the investor shall be approved by organization of citizens having built (authorized body) during seven days after adoption of decision on withdrawal of the investor from the organization of citizens having built (cancellation of contract with a share holder in building).
The Constitutional Court notes that the calculation (computation) under consideration in point 18 of the Provision, in practice is not the real settle with a withdrawn member of organization of citizens having built, but the determination of the amount of the sums which are due to be paid.
Maximum possible term for making the payment by the new investor shall be fixed by the body authorized to take a decision on inclusion of a new investor (point 22 of Provision), therefore, repayments for the withdrawn member is putting off to the fixed term.
Analysis of effective procedure and conditions of refund of the means for the withdrawn member of organization of citizens having built while terminating sharing in building shall signify that the issues raised by the Constitutional Court in its Decision of 12 June 2001 found no proper settlement, and as a result there is a violation of the rights and lawful interests of the citizens - withdrawn members of organizations of citizens having built who are not returned promptly their own means. Up to the present moment there is no specification of the effectual mechanism of creation of resources in case of failure to become new members (instead of those withdrawn) of the organizations of citizens having built over the long period of time, and in the end that shall also affect the financial position of the organization of citizens having built, slowing down the building process because of deficiency of financing.
There is the necessity of adjustment of legal regulation of mutual relations of citizens having built and Housing and Building Co-operatives, other similar organizations. Model Rules 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 is evidently out of date, its norms are not in line with the norms of new Civil and Housing Codes, with other acts of legislation of the Republic of Belarus. Settlement of many of issues on the level of constituent documents of organizations of citizens having built is not effective, since in those instances there is no proper securing of the rights and lawful interests of citizens.
The Constitutional Court deems that the repayment of the indexed sums of shares for the withdrawn members shall not necessarily be related to the entry of new member the organizations of citizens having built, if there will be specified the procedure and conditions of those repayments from the special resource (special funds). In the opinion of the Constitutional Court, in case of valid reasons for withdrawal from the number of persons building, the guarantors of those payments may be the local bodies of state power, banks non-banking financial and credit, insurance organizations, economic entities.
Guiding by part one of Article 116 of the Constitution, Articles 7, 11, 36, 38, 40, 401 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To propose the Council of Ministers of the Republic of Belarus to solve the issues connected with real payment for the persons withdrawn from organizations of citizens having built of the due sums of money by securing optimum accounting of the interests of both organizations of citizens having built and citizens withdrawn from them.
2. The present Decision shall come into legal force from the date of adoption.
3. To publish the present Decision in accordance with the legislation.
Presiding Officer — Chairman of the of the