30 January 2004 № J-168/2004
The Constitutional Court of the
with participation of representatives:
of the House of Representatives of the National Assembly of the Republic of Belarus: A.M. Arkhipov - Head of Standing Committee of the House of Representatives of the National Assembly of the Republic of Belarus on legislation and judicial legal issues; Y.A. Morozov, member of Standing Committee of the House of Representatives of the National Assembly of the Republic of Belarus on human rights, national relations and mass media; A.V. Chuprakov; adviser consultant of Department of civil legislation of the Main Expert and Legal Department of the Secretariat of the House of Representatives of the National Assembly of the Republic of Belarus;
Council of the Republic of the National Assembly of the Republic of Belarus - V.V. Bury, Head of the Department of civil, social and economic legislation of the of the Main Expert and Legal Department of the Secretariat of the of the Council of the Republic of the National Assembly of the Republic of Belarus;
has examined in open court session the case "On the conformity to the Constitution of the
The court session was attended by: V.N. Vyshkevich -Deputy Chairman of the Supreme Court of the
The proceedings have been brought by the Constitutional Court of 16 December 2003 as a result of the constitutional motion of the House of Representatives of the National Assembly of the Republic of Belarus on the grounds of Article 116 of the Constitution of the Republic of Belarus, Articles 5 and 6 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 43 of the Rules of Procedure of the Constitutional Court of the Republic of Belarus.
The subject to verification was point 3 of Article 760 of the Civil Code of the Republic of Belarus (Vedamastsi Natsiyanalnaga skhodu Respubliki Belarus, 1999, No. 7-9, art. 101) which stipulate that foreign currency and currency valuables may be subject of the loan contract in the territory of the Republic of Belarus with the observance of the rules of Articles 141, 142 and 298 of the Code in question.
In its motion on verification of the constitutionality of point 3 of Article 760 of the Civil Code (hereinafter CC) the House of Representatives has specified that the understanding of the given norm in law applying practice shall signify about uncertainty of the legal requirements it contains and is interpreted as prohibition of the use of the foreign currency while concluding loan contracts between the citizens with the absence of special legislative regulation of the instances, procedure and conditions of the use. The motion has also specified that even if before adoption and enforcement of the Law "On currency regulation and currency control" (National register of legal acts of the Republic of Belarus, 2003, No. 85, 2/978) the use of the foreign currency while concluding by the natural persons of the loan contracts found no regulation, and that shall not manifest prohibition on behalf the state to carry out the actions allowed by CC. Due to that the House of Representatives deems that point 3 of Article 760 of CC in the meaning attached to it by the practice of application shall be in conflict with the requirements of the Constitution.
Moreover, the House of Representatives has specified that the significant number of cases concerning the loan contracts concluded before entry into legal force of Article 11 of the Law "On currency regulation and currency control" has not been examined. Due to that the motion specifies that since the lawmaker gave no retrospective effect as regards part three of Article 11 of the given Law, which allows the use of the foreign currency in the loan contracts, then there shall be applied point 3 of Article 760 of CC, the uncertainty of which will be resulted in further violation of the constitutional rights of citizens.
Having heard judge-speaker V.Z. Shuklin, information from the representatives as the parties, the specialist, analyzed the appropriate provisions of the Constitution, the Civil Code and the Banking Code, the Law "On currency regulation and currency control" and other normative legal acts of the Republic of Belarus, studied the materials of the case and judicial practice, the Constitutional Court found the following.
In accordance with the Constitution securing of the rights and freedoms of citizens of the
The constitutional principle of freedom of economic activities, which are not banned by the law, has found its reflection in civil and currency legislation. According to Article 2 of CC the citizens are free in concluding the contracts; interference in private business shall not be permissible, except for the cases, where such an interference is carrying out on the grounds of legal norms in the interests of national security, public order, protection of morals, health of population, rights and freedoms of other persons; participants of civil legal relations shall enjoy and exercise their civil rights of their own will and in their own interests, are free in establishment of their rights and obligations on the basis of the contract and in determination of any conditions of the treaty which are not in contradiction with the legislation.
At the same time, the
Article 760 of CC shall specify the procedure of conclusion and conditions of the loan contract. Under this contract one party (loan giver) shall transfer into the property of another party (loan debtor) money or other things specified by origin features, and the loan debtor shall be obliged to return the loan giver the same sum of money (sum of loan) or the equal amount of other things received of the same origin and quality (point 1); the loan contract shall be considered to be concluded from the moment of passing money or other things (point 2); the foreign currency and currency valuables may be subject-matter of the loan contraсt in the territory of the Republic of Belarus with the observance of the rules of Articles 141, 142 and 298 of CC (point 3).
The procedure and the conditions of the use of money (currency) in the territory of the
In accordance with Article 142 of CC the types of the property as the currency valuables, as well as the procedure of carrying out transactions with them shall be specified by the legislation. The right of ownership to the currency valuables shall be subject to protection in the
Article 298 of CC shall envisage the possibility of payment of pecuniary obligation in Belarusian roubles in the sum equivalent to the definite sum in foreign currency or in standard (conventional) monetary units; the use of the foreign currency and payment documents in foreign currency while making payments in the territory of the Republic of Belarus under the obligations shall be admissible in instances, procedure and under the conditions specified by the legislation.
The provisions, which are similar to the given norms of the civil legislation are contained in Article 11 of the Banking Code of the
Sub-item 2.1 of point 2 of Decree of the President of the Republic of Belarus of 5 February 1997 No. 1 "On measures on securing the regulation order while carrying out currency transactions" (Collection of decrees, edicts of the President and Resolutions of the Government of the Republic of Belarus, 1997, No. 4, art. 132) with alterations and addenda has established the prohibition of carrying out currency transactions (buying up, sale, currency exchange, including into Belarusian roubles and other property) or other use of the foreign currency without the relevant permission (license). The specified Decree shall envisage the administrative liability of the persons for carrying out the currency transactions without the relevant permissions (licenses), confiscation and returning to the state revenues of the foreign currency and other money resources found with the guilty persons.
In accordance with sub-item 2.2.2 of point 2 of Decree of the President of the Republic of Belarus of 23 February 2000 No. 87 "On improvement of the system of the currency regulation and control in the Republic of Belarus" (National register of legal acts of the Republic of Belarus, 2000, No. 23, 1/1043) with further alterations and addenda (lost its legal force as a result of adoption of the Law "On currency regulation and currency control") the National Bank has been entrusted with the specification of the rules of issue of special permissions (licenses) for carrying out currency transactions and the issue of those permissions (licenses).
According to Article 16 of the Law "On the National Bank of the
Point 1 of Decree of the President of the
The norms entrusting the National Bank with regulation of the currency valuables management in the territory of the
Thus, the function of regulation of circulation of the foreign currency and currency valuables in the territory of the
For the purposes of specification of the instances, procedure and conditions for carrying out currency transactions, including the foreign currency loan contracts concluding by the natural persons - residents, the National Bank has adopted the relevant enforceable enactments. Residents are considered to be the citizens (natural persons) of the Republic of Belarus, as well as foreign citizens (natural persons) and stateless persons (natural persons) who have residence permits in the Republic of Belarus (or substitute document) issued by the competent state bodies of the Republic of Belarus (point 1.5 of the Provision on the procedure of carrying out foreign currency transactions in the territory of the Republic of Belarus of 1 August 1996 No. 768 approved by the Governing Board of the National Bank (Bulletin of normative and legal information. 1996. No. 11) with further alterations and addenda (hereinafter Provision of 1 August 1996 No. 768).
According to point 9.1 of Section 9 of the Provision of 1 August 1996 No. 768 the citizens - residents and non-residents may have currency valuables in their own property brought into or transferred or remitted in the Republic of Belarus from abroad, received or acquired in the territory of the Republic of Belarus in accordance with the effective legislation, keeping them on the accounts and as the deposits in the authorized banks and use for the purposes not banned by the legislation of the Republic of Belarus. In addition, point 9.11 of Section 9 of the Provision in question the ban for granting citizens-residents of the foreign currency loans has been placed only with respect to legal entities - residents.
In such a situation the natural persons - residents who are interested in conclusion of the foreign currency loan contracts had made the conclusion on the presence of their right to carry out the transactions in question. There have been also made no clear specification in other enforceable enactments of the National Bank of the instances, procedure and conditions of the use of the foreign currency while concluding the loan contracts between natural persons - residents.
At the same time, position of the National Bank, as it follows from the reply in response to the request of the
The Constitutional Court considers point 3 of Article 760 of CС, where the law maker established that the foreign currency and currency valuables may be the subject-matter of the loan contract in the territory of the Republic of Belarus with the observance of the rules of Articles 141, 142 and 298 of the specified Code to be in line with the Constitution. However, as it follows from the above mentioned, the norms of other enforceable enactments regulating relations in the specified sphere before the enforcement of the Law "On currency regulation and currency control" have been imperfect, contradictory, uncertain and given the grounds for their multi-valued understanding and application in practice.
This has been resulted in numerous instances of concluding the foreign currency loan contracts between the natural persons - residents who supposed that those contracts are authorized by the legislation and, therefore, in case of no refund of the foreign currency they made appeals to the court of law for the protection of the violated, in their opinion, rights. The Constitutional Court emphasizes that at the very moment of examination of the present case a number of the state bodies (the Council of Ministers, the Council of the Republic of Belarus, the Ministry of Economy, Ministry on Taxes and Dues, Ministry of Internal Affairs etc.), as well as certain scientific organizations and higher educational institutions shall recognize the lawfulness of the previously concluded loan contracts.
The same findings were made by certain state bodies by analyzing the approaches of the National Bank in other acts of the currency regulation concerning law relations with participation of other categories of the natural persons. For example, in its reply forwarded by the Ministry of Internal Affairs to the Constitutional Court, has paid attention to the fact that the Rules of carrying out currency transactions as regards capital movement approved by Resolution of the Governing Board of the National Assembly of 28 April 2001 No. 100 stipulates that the National Bank shall permit the natural persons under the conditions of observance by them of the requirements of the legislation of the Republic of Belarus carrying out of those currency transactions related to the capital movement without the special permission of the National Bank for carrying out the specific type of the currency operation related to the capital movement, such as credits obtaining, borrowings for the term of more than 180 days (point 22).
It was more difficult for the citizens to understand the lawfulness or unlawfulness of their actions while concluding the foreign currency loan contracts.
Analysis of judicial practice as for this category of cases has also pointed out its unlawfulness. The were instances when the courts of law enforced the recovery of money in Belarusian roubles for the benefit of an appellant, but in the proceedings the parties made no refusals as regards the fact of conclusion of the foreign currency loan contract, and there were transactions found to be invalid and the foreign currency as the subject-matter was returned to the state revenues. In a number of instances the proceedings were terminated due to the refusal of an appellant from his/her requirements or the claim has been left without examination in view of repeated non-appearances of a person under the claim of whom there have been brought the civil proceedings.
The Supreme Court of the Republic of Belarus as the body, which directed judicial practice, in 2001 while preserving the effect of the same norms of the legislation on the grounds of which decisions have been brought for the benefit of the loan-givers, had changed it against the interests of the participants of the foreign currency loan contracts who rely on the protection of their rights on behalf of the state, and had become to make orientation for the courts of law towards recovery of the foreign currency into the state revenues, but even if taking into account the multi-valued legal regulation, there were all the grounds for the solution of the disputes for the benefit of the citizens. In such a situation, in the opinion of the Constitutional Court, it should inform the relevant bodies about the necessity of improvement of the acts of legislation for the purposes of achievement their unique understanding, as well as to follow the requirements of Article 112 of the Constitution as regards the use of the possibilities of the Constitutional Court for the fair solution of the arising legal disputes.
The Constitution enshrines that the individual, his rights, liberties and guarantees for their attainment manifest the supreme value and goal of the society and the state (Article 2).
In accordance with point 14 of Conception of improvement of the legislation of the Republic of Belarus approved by Decree of the President oа the Republic of Belarus of 10 April 2002 No. 205 (National register of legal acts of the Republic of Belarus, 2002, No. 46, 1/3636) ensuring the rights and freedoms of citizens of the Republic of Belarus, guarantees of their realization shall be the basic vector of the development of the legislation. Securing the balance of the individual, social and the state interests shall be also referred to the directions of its development.
Due to that the Constitutional Court shall pay attention of the state bodies to the necessity of adoption of the enforceable enactments, which would be based on the principles of the state ruled by law, would be coordinated and logically built, and the norms they contain as regards the rights and freedoms of the citizens would be accessible for understanding by all the classes of the population. It is also necessary to intensify the work on explanation of the effective legislation among the citizens. The
The Constitutional Court points out that only the Law "On currency regulation and currency control" which is in force since 5 November 2003 shall envisage the ban on the use of the foreign currency, securities in the foreign currency and (or) payment documents in the foreign currency while carrying out currency transaction between the residents, except for the cases specified by the given Law and by other acts of currency legislation. As for the relations among the natural persons - residents who did not act as individual entrepreneurs while carrying out currency transactions, the Law shall allow to use the foreign currency, securities in the foreign currency and payment documents in the foreign currency in instances: endowment (including donations), as well as suspension of endowment; loan giving, returning of loans and interests on the use of the loans; putting them into storage and their return.
Concerning the raised by the House of Representatives issue on the possibility of giving retroactivity to the Law "On currency regulation and currency control" as regards the law relations arising from the foreign currency loan contracts between natural persons - residents the Constitutional Court shall note the following.
Under part six of Article 104 of the Constitution the law shall have no retrospective action unless it extenuates or revokes the responsibility of citizens. Moreover, in accordance with part one of Article 67 of the Law "On enforceable enactments of the Republic of Belarus" (National register of legal acts of the Republic of Belarus, 2002, No. 7, 2/136) an enforceable enactment shall have no retrospective action, i.e. shall not cover the relations arising before its enforcement, except for the cases when it not only mitigates or repeals the responsibility of citizens, but also improves the position of the persons in question.
Due to that, as well as taking into account the contradictory nature, uncertainty of the norms which regulated law relations under the foreign currency loan contracts between natural persons - residents, the Constitutional Court considers that the specified contracts, which were concluded according to pint 3 of Article 760 of CC before enforcing the Law the provisions of Article 11 of the given Law "On currency regulation and currency control", shall be subject to application with respect to them the provisions of Article 11 of the given Law as regards the disputes which are examining by the courts of law or have been already examined by the courts of law, but the relevant decisions under which have not been exercised or were exercised partly.
On the grounds of the above stated and guiding by parts one, four and seven of Article 116 of the Constitution, Articles 5, 6, 9, 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To find point 3 of Article 760 of the Civil Code where the law maker has stipulated that the foreign currency and currency valuables may be the subject-matter of the loan contract in the territory of the Republic of Belarus with the observance of the rules of Articles 141, 142 and 298 of the specified Code to be in line with the Constitution of the Republic of Belarus.
2. To note that before enforcing the Law of 22 July 2003 "On currency regulation and currency control" the provisions of other enforceable enactments which regulated relations in the given sphere where imperfect, contradictory, uncertain, and that gave grounds for their multi-valued understanding and application in practice. That found its reflection not only in numerous instances of conclusion of the foreign currency loan contracts between natural persons - residents and their further complaints to the court of law for the protection, as they deemed, of the violated rights, but also in finding the lawfulness of those contracts at the moment of examination of the case in the Constitutional Court by a number of state bodies (Council of Ministers, Council of Republic of National Assembly, Ministry of Economy, Ministry on Taxes and Dues, Ministry of Internal Affairs etc.), as well by certain scientific organizations and higher educational institutions.
3. To emphasize the contradictoriness and inconsistency of judicial practice on the disputes between natural persons - residents, which are following from the foreign currency loan contracts.
In this connection, to pay attention of the Supreme Court of the Republic of Belarus, as the body directing judicial practice and which has changed this practice in 2001 with preservation of the same norms of the legislation, to the fact that its turn was made against the interests of the participants of foreign currency loan contracts who counted on the protection of their interests on behalf of the state and owing to uncertainty of the content of legal norms who had the grounds to take on behalf the state bodies the measures on fair solution of the disputes. In such a situation for the delivery of lawful decisions it should be used all the possibilities including improvement of the acts of the legislation for the purposes of securing their strict and unique understanding or to meet the requirements of part two of Article 112 of the Constitution for the timely verification by the Constitutional Court of the constitutionality of the norms of legal acts, which are subject to application while solving the specified disputes.
4. To find that the law relations as regards the foreign currency loan contracts concluded by natural persons - residents in accordance with point 3 of Article 760 of the Civil Code before enforcement of the Law of 22 July 2003 "On currency regulation and currency control" the disputes on which are at the stage of examination in the courts of law or have been already examined by the courts of law, but decision thereon are not exercised in full or partly, there should be applied the provisions of Article 11 of the Law "On currency regulation and currency control" and that is based on part six of Article 104 of the Constitution and part one of Article 67 of the Law "On enforceable enactments of the Republic of Belarus" under which an enforceable enactment shall have no retrospective action, i.e. shall not cover the relations arising before its enforcement, except for the cases when it not only mitigates or repeals the responsibility of citizens, but also improves in some other way the position of the persons in question.
5. For the National Bank of the Republic of Belarus to bring its acts into line with the Law of 22 July 2003 "On currency regulation and currency relation" as well as to ensure unique legal regulation of relations and application of the given acts, as well as together with other state bodies to take the measures on more wide explanation for the citizens of their rights and obligations in the specified field of law relations.
6. To publish the present Judgment within the period of time specified in legislation in newspapers "Zvyazda", "Nationalnaya gazeta", as well as in National register of legal acts of the
7. The present Judgment shall come into legal force from the date of its proclamation, is final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the