2 March 2005 № D-184/2005
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, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin, has examined on the grounds of part four of Article 122 of the Constitution of the Republic of Belarus application on the issue of constitutionality of point 2 of Decision of Minsk city executive committee of 11 April 1996 No. 240 "On registration of foreign citizens and stateless persons who arrive in Minsk temporarily and compensation of relevant municipal economy expenses" (hereinafter is also referred to as Decision of Minsk city executive committee of 11 April 1996 No. 240) in part of collection of money resources from foreign citizens and stateless persons for temporal staying in the city of Minsk. The Decision in question has been approved by point 1 of Decision of Minsk city executive committee of 8 June 1999 No. 27 "On approval of decisions of Minsk city executive committee of 11 April 1996 No. 240 "On registration of foreign citizens and stateless persons who arrive in Minsk temporarily and compensation of relevant municipal economy expenses" and of 22 April 1999 No. 373 "On making alterations in Decision of Minsk city executive committee of 21 January 1997 No. 52".
Having analysed the relevant provisions of the Constitution, Laws "On legal status of foreign citizens and stateless persons in the Republic of Belarus", "On national due", "On local government and self-government in the Republic of Belarus", "On status of the capital of the Republic of Belarus - the city of Minsk" and other enforceable enactments of the Republic of Belarus.
Under the Constitution foreign nationals and stateless persons on the territory of Belarus shall enjoy rights and liberties and execute duties on equal terms with the citizens of the Republic of Belarus, unless otherwise specified in the Constitution, the laws and international treaties (Article 11); all shall be equal before the law and entitled without discrimination to equal protection of their rights and legitimate interests (Article 22); no one shall be compelled to discharge duties that are not specified in the Constitution of the Republic of Belarus and its laws or renounce his rights (Article 58).
Article 3 of the Law "On legal status of foreign citizens and stateless persons in the Republic of Belarus" shall stipulate that the restrictions of the rights and freedoms of foreign citizens and stateless persons may be fixed only in instances, if it is necessary for the protection of the rights and fundamental freedoms of citizens of the Republic of Belarus, ensuring of national security, safeguarding of public law and order and health protection of the population. Foreign citizens and stateless persons in the Republic of Belarus shall be equal before the law regardless of their origin, social and property status, race and nationality, sex, education, language, attitude towards religion, occupation and kind of work, as well as other circumstances.
Preamble of Decision of Minsk city executive committee of 11 April 1996 No. 240 shall specify that it was adopted for the purposes of execution of legislation regulating legal status of foreign citizens and stateless persons in the Republic of Belarus and stipulating the rules of their staying in the Republic of Belarus. The Decision in question has approved the Provision on registration of arriving in the city of Minsk of foreign citizens and stateless persons (hereinafter is also referred to as Provision), which specify the procedure of registration of the specified persons in the city of Minsk, registration of their passports etc. Point 2 of the Decision in question shall fix the obligation of foreign citizens, who are at the age of 18, to deduct the funds at the rate of 20 per cent of minimum wage for each day of residing in the city of Minsk with a view to compensate budget expenditure for the social sphere and for the development of infrastructure of the city. According to point 6 of the Provision control over making payment for residence and registration in the city of Minsk shall be charged with the bodies authorized for introduction of the registration. Moreover, the obligation to pay the fixed sum shall be also applied to the next of kin, for example, children who have become foreigners and arrived in the city of Minsk to their parents, etc.
Analysis of Decision of Minsk city executive committee of 11 April 1996 No. 240 shall signify that the obligation of foreign citizens and stateless persons as regards paying for residing and registration in the city of Minsk shall have the nature of the tax payment (due).
The Constitutional Court emphasizes that collection of the national due from the foreign citizens and stateless persons is stipulated in accordance with point 6 of Article 2 of the Law "On national due" and Resolution of the Council of Ministers of the Republic of Belarus of 26 March 2003 No. 402 "On rates of national due and granting additional privileges concerning its payment" for issuing entry visa of the Republic of Belarus, permission for temporarily staying in Belarus, registration and extension of the term of registration, other actions. Other payments from the mentioned persons are not envisaged by the specified enforceable enactments.
List of local taxes and dues entered the local budgets shall be stipulated annually by the Law on Budget of the Republic of Belarus for the relevant financial (budgetary) year. Analysis of the laws on budget of the Republic of Belarus adopted in 1996-2005 shall make it possible to conclude that within the fixed years there were no specification of the local due from the foreign citizens and stateless persons in connection with their temporary staying in the Republic of Belarus.
Laws "On local government and self-government in the Republic of Belarus", "On status of the capital of the Republic of Belarus - the city of Minsk", "On legal status of foreign citizens and stateless persons in the Republic of Belarus" and Resolution of the Council of Ministers of the Republic of Belarus of 25 October 1999 No. 1654 "On approval of the Rules of staying of foreign citizens and stateless persons in the Republic of Belarus" shall give the bodies of local government and self-government no right to impose any taxes and dues for the foreign citizens and stateless persons who arrive temporarily in the Republic of Belarus.
Study of international experience on collection of such payments has signified that in other European states (Russia, Lithuania, Latvia, Poland, Germany, Romania, Great Britain, Switzerland) the local bodies shall set no local dues from the foreign nationals and stateless persons. An exception is the health-resort due collected while entering the territory of certain cities and some territories.
Under Article 8 of the Constitution the Republic of Belarus shall recognize the supremacy of the universally acknowledged principles of international law and ensure that its laws comply with such principles. Article 27 of the Law "On international treaties of the Republic of Belarus" stipulates that international treaties of the Republic of Belarus shall be subject to faithful execution by the Republic of Belarus in accordance with the norms of international law. Universally acknowledged principles of international law and the norms of effective international treaties of the Republic of Belarus shall be a part of law effective in the territory of the Republic of Belarus.
Certain international treaties concluded by the Republic of Belarus stipulate in particular that there is no due for issuing visas and regulation of staying regime for the citizens of the states, which concluded the given treaties. Such a norm is stipulated in Article 4 of the Agreement between the Government of the Republic of Belarus and Federal Government of the Federal Republic of Yugoslavia as regards repeal of visas ratified of 9 November 1999. The Agreement in question shall stipulate no collection of dues from the citizens of this country (at present - Serbia and Montenegro) during the period of their temporal staying in the Republic of Belarus and registration in the city of Minsk.
Thus point 2 of Decision of Minsk city executive committee of 11 April 1996 No. 240 on collection from foreign citizens and stateless persons of money funds for each day of residence in the city of Minsk with a view to compensate budget expenses for social sphere and for the development of infrastructure of the city is not in line with Articles 8, 11, 22, 58 of the Constitution, laws and other enforceable enactments of the Republic of Belarus, international treaties.
Based on the abovementioned, guiding by part one of Article 116 of the Constitution, part four of Article 122 of the Constitution, Articles 7, 36, 38, 40, 401 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To find to be at variance with the Constitution of the Republic of Belarus, laws and other enforceable enactments of the Republic of Belarus, international legal acts of point 2 of Decision of Minsk city executive committee of 11 April 1996 No. 240 "On registration of foreign citizens and stateless persons who arrive in Minsk temporarily and compensation of relevant municipal economy expenses" and point 1 of Decision of Minsk city Council of deputies of 8 June 1999 No. 27 which approved the given Decision of Minsk city executive committee in part of collection from the foreign citizens and stateless persons of money funds for each day of residence in the city of Minsk.
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