1 July 2004 № D-173/2004
The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, judges T.S. Boiko, G.A. Vorobei, K.I. Kenik, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin on the grounds of part one of Article 116 and part four of Article 122 of the Constitution of the Republic of Belarus has examined the motion on legality of setting by Decision of Vilejka region executive committee of reducing coefficients to the norms of burden costs and planned accumulation in building.
Having analyzed the relevant provisions of the Constitution of the Republic of Belarus, Law of the Republic of Belarus "On local government and self-government in the Republic of Belarus", Decree of the President of the Republic of Belarus of 19 May 1999 No. 285 "On some measures on stabilization of prices (tariffs) in the Republic of Belarus" and other enforceable enactments, the Constitutional Court found the following.
For the purposes of improvement of the system of price formation Decree of the President of the Republic of Belarus of 19 May 1999 No. 285 (with alterations and addenda) has approved the list of goods (works and services), where the prices (tariffs), additional prices (discounts) on which shall be regulated by the Council of Ministers of the Republic of Belarus, by the republican state bodies, by other state organizations subordinated to the Government of the Republic of Belarus, by the National Bank, by oblast executive committees and by Minsk city executive committee. The list in question shall envisage that the prices in building, except for the building at the cost of foreign investments (in co-ordination with the Ministry of Economy), shall be regulated by the Ministry of Architecture and Building.
At present, the norms of burden costs and planned accumulations for building and erection organizations, which carry out building, erection and special building works by contract are determined by the enforceable enactments of the Government of the Republic of Belarus.
Thus, Resolution of the Council of Ministers of the Republic of Belarus of 11 February 1993 No. 67 "On new estimate norms and prices in building" has approved the limited norms of burden costs and planned accumulations (point 2) for building and erection organizations, irrespective of the forms of ownership, which carry out building, erection and special building works by contract.
Since 1 January 1996 Resolution of the Cabinet of Ministers of the Republic of Belarus of 27 October 1995 No. 599 "On setting of reducing coefficients as to the norms of burden costs and planned accumulations for building and erection organizations" has set as to the norms of burden costs and planned accumulations 0,996 and 0,96 respectively. The Ministry of Architecture and Building has been charged within a month period to specify the procedure of application of the coefficients in question.
For the purposes of setting the unified procedure of switching in 2001-2002 to new estimated normative base in building, the Resolution of the Council of Ministers of the Republic of Belarus of 6 July 2001 No. 997 "On taking up resources and estimated norms in building" has approved new norms of burden costs and planned accumulations for building and erection organizations, which carrying out building, erection and special building works by contract (point 2). Point 3 of the indicated Resolution has made it possible to apply for the calculations of the performed works under the previously concluded building contracts the limited norms of burden costs and planned accumulations for the building and erection organizations, which carry out building, erection and special building works by contract which were approved by Resolution of the Council of Ministers of the Republic of Belarus of 11 February 1993 No. 67.
In spite of the fact that point 2 of Resolution of the Council of Ministers of the Republic of Belarus of 6 July 2001 No. 997 reads about the approval of the norms of burden costs and planned accumulations, in case of direct specification of the level of these norms, the Government envisaged limited norms (in per cent as to the sum of the basic wages of the workers and the value of operation of machines) of burden costs and planned accumulations.
The Constitutional Court deems that the term "limited norms" shall be examined as the highest size which may not be the subject to increasing by concluding the contracts, but which may be reduced.
Minsk oblast executive committee in its Decision of 18 March 2003 No. 191 "On measures on realization of decision of Minsk oblast council of deputies "On budget of oblast for 2003" has recommended the organizations of communal property - customers while concluding new contracts with organizations of any form of ownership for building and repair works, which carrying out by contract for the cost of budgetary funds to apply reducing coefficient as to planned accumulations and burden costs (except for the repair works of slate or stale roofs of the housing stock): building, reconstruction and capital repairs - 0,8, current repairs - 0,5 (sub-item 7.2 of point 7).
Vilejka region executive committee in the fulfilment of the recommendations of Minsk oblast executive committee, as well as for the purposes of "optimisation and reduction of budgetary expenditure, improvement of the structure of management of budgetary sphere and organizations of communal economy" in its Decision of 27 February 2003 No. 84 "On additional measures on saving budgetary funds in 2003" determined that the organizations of communal property while concluding new treaties with organizations of any form of ownership for building and repair works carrying out by contract and at the cost of budgetary funds shall use reducing coefficient to the planned accumulations and burden costs: as regards building, reconstruction and capital repair - 0,8, current repairs - 0,5 (sub-item 1.3 of point 1).
In the opinion of the Constitutional Court, Decision of Vilejka region executive committee as regards setting of reducing coefficients is directed to economizing of budgetary resources, and that shall have positive social results, since reducing of expenditure shall make it possible to increase the volume of building works, to carry out reconstruction and heavy repair of a big number of objects of infrastructure of the region: schools, hospitals, palaces of culture, sport constructions.
Under Article 121 of the Constitution the determination, within the limits specified by law, of the procedure governing the management and disposal of municipal property shall fall exclusively within the exclusive competence of the local councils of deputies.
Point 5 of part ten of Article 9 of the Law "On local government and self-government in the Republic of Belarus" shall envisage that the executive committee disposes of municipal property of an administrative territorial unit according to the procedure specified by the council.
Communal property shall consist of treasury of an administrative and territorial unit, as well as the property assigned to the communal legal entities. The treasury of the relevant administrative and territorial unit shall be the means of the local budget and other communal property, which is not assigned to the communal legal entities (part one of Article 36 of the Law "On local government and self-government in the Republic of Belarus". In accordance with part one of Article 41 of the given Law the executive committees shall implement the local budgets in the interests of the population. According to part one of Article 33 of the Law "On budget system of the Republic of Belarus and state extra budget funds" local Councils of deputies within their competence shall determine independently the directions of use of the funds of local budgets, except for the financial recourses of purposeful significance transferred them from the higher budget.
Based on the stated above, the Constitutional Court considers that Vilejka region executive committee, having envisaged in its Decision of 27 February 2003 No. 84 reducing coefficients as to planned accumulations and burden costs, which are subject to be applied by the organizations-customers while concluding new treaties with organizations of any form of ownership for building and repair works which are carrying out by contract for the cost of budgetary funds made no violation of the relevant provisions of Resolutions of the Council of Ministers of 11 February 1993 No. 67 and of 6 July 2001 No. 997, since the given Resolutions shall specify the limited norms of burden costs and planned accumulations.
At the same time, the Constitutional Court pays attention that reducing coefficients according to Decision of Vilejka region executive committee of 27 February 2003 No. 84 shall be applied only with respect to the new treaties concluding after adoption of the Decision in question and its enforcement. Moreover, in accordance with Article 67 of the Law "On enforceable legal acts of the Republic of Belarus" an enforceable enactment shall have no retroactive effect, i.e. shall not cover the relations appeared before its enforcement, except for the instances, if it mitigates or revokes the responsibility of citizens and by some other way improve the status of persons who are under the effect of an enforceable enactment, or if the enforceable enactment or the act of its enforcement directly specifies that its effect shall cover the relations appeared before its enforcement.
In case of failure to observe the requirements in question, building organizations shall have the right to appeal against the actions of the state bodies to the economic court in accordance with the procedure specified by the legislation.
Guiding by part one of Article 116, part four of Article 122 of the Constitution of the Republic of Belarus, 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 sub-item 1.3 of point 1 of Decision of Vilejka region executive committee of 27 February 2003 No. 84 "On additional measures on economy of budgetary funds in 2003" to be in line with the Constitution and the acts of legislation of the Republic of Belarus.
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
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