Acts of the Constitutional Court
DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
21 November 2003 № D-164/2003
On legal regulation of the issues of payment for technical maintenance of the houses of dwelling and building co-operatives considering land tax
     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, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, 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 collective and individual petitions of citizens on different conditions of payment of the land tax by the citizens - owners of the flats in the houses of dwelling and building co-operatives and by the citizens who have privately owned flats in tenement-houses of the state housing stock.
 
     Having analysed the relevant provisions of the Constitution of the Republic of Belarus, Land Code of the Republic of Belarus, Law of the Republic of Belarus "On payments for land" and other enforceable enactments, the Constitutional Court found the following.
 
     According to the Law "On payments for land" (hereinafter - Law) the payers of the land tax shall be legal and natural persons who were granted the plots of land for possession, use or into the ownership (Article 5); the object for taxation shall be the plot of land which is in possession, in use or which is owned (Article 4).
 
     Analysis of the provisions of Articles 30, 31 of the Land Code of the Republic of Belarus (hereinafter - Code) shall indicate that the right to regular use, the right to inheritable life-long possession by the plot of land and the right to private property of the plot of land shall be certificated by the state act which is the starting point for originating the right in question. In certain instances under petition of the landowner, the land user the relevant executive and administrative body may give permission to use the given plots of land until the issue of the document in question under condition of specification of the borderlines of the plot of land in kind (in the locality).
 
     The Constitutional Court shall pay attention that Resolution of the Supreme Council of the Republic of Belarus of 18 February 1991 "On carrying out land reform in the Republic" enterprises, establishments and organizations which have in use the plots of land granted for them before enforcing the Land Code of Byelorusian SSR of 11 December 1990 (it was effective till 1 January 1999) had been obliged till 1 January 1994 to draw up the documents certifying the right to possession or the right to regular use of the land. After expiry of the specified term the previously granted them right to use the plots of land has lost its legal force (point 8). The Council of Ministers has been entrusted with securing the relevant allocation of the funds and material and technical resources, which are necessary for implementation of the land reform (point 9).
 
     In accordance with Article 143-1 of the effective Code the plots of land located in the territory of the Republic of Belarus irrespective of the form of ownership and regardless of the designated purpose shall be subject to compulsory state land cadastral register, and the rights thereto and transactions with them shall be subject to compulsory state registration.
 
     At the same time, study of law applying practice shall signify that, if the right to use the plots of land built-up by the houses of dwelling and building co-operatives is executed according to the provisions of the Code, then the majority of dwelling maintenance and servicing organizations shall have no acts of land use for the plots of land occupied by the housing stock which is within the balance of those dwelling maintenance and servicing organizations.
 
     Land tax from the plots of land, where dwelling houses of state housing stock are located, which are in factual use of dwelling maintenance servicing associations (hereinafter - DMSA), shall be calculated and paid in proportion to the site of building. The payers of the land tax in accordance with Article 5 of the Law shall be legal entities - DMSA. Moreover, on the basis of point 57 of Instruction on the procedure of calculation and payment for the land by legal entities approved by Resolution of State Tax Office of the Republic of Belarus of 18 April 2000 No. 33 (with alterations and addenda), payments for land shall be referred to the costs for production and realization of goods (works, services).
 
     The Constitutional Court emphasizes that the Law "On budget of the Republic of Belarus, 2003" contains the number of measures of social support of the population in the field of housing and communal services: under Article 9 of the given Law in 2003 local budgets shall finance up to 35 per cent of the costs as regards rendering housing and communal services for the population in regions and up to 28 per cent in the city of Minsk. Funds of the purpose due for financing the costs related to maintenance of housing stock in accordance with Article 11 shall be channelled to cover the costs on maintenance of the housing stock, including dwelling and building co-operatives, partnerships of owners, as well as to the subsidies for legal entities on recovery of a portion of the costs concerning rendering housing and communal services for the population.
 
     Provision on the procedure of use of the means of the purpose due for financing the costs related to keeping and maintenance of the housing stock, including dwelling and building co-operatives, partnerships of owners, as well as to the subsidies for legal entities on recovery of a portion of the costs concerning rendering housing and communal services for the population, approved by Resolution of the Ministry of Housing and Communal Economy of the Republic of Belarus of 25 March 2002 No. 3, shall specify that recovery of the costs of legal entities (except for those the costs of keeping of which are financing from the budget) concerning keeping and running repairs of the housing stock, including dwelling and building co-operatives, youth dwelling complexes, partnerships of owners shall be carried out minus calculated sums of payment of citizens for technical maintenance of dwelling houses and other profitable resources (rental fee etc.).
 
     Thus the legislation shall regulate the issues of social support of the population in the field of housing and communal economy taking into account the constitutional principle of equality of all before the law and the right without discrimination to equal protection of their rights and legitimate interests (Article 22 of the Constitution) and shall stipulate equal social support of citizens regardless of whether they live in the houses of the state housing stock or in the houses of housing and building co-operatives.
 
     At the same time, the Constitutional Court pays attention to the fact that DMSA shall pay the land tax from the sums of payment made by the tenants for technical servicing of the house where the sum of this tax is included in its value. The source of payment of the land tax by the dwelling and building co-operative, which is the payer of the tax, shall be money of the members of the co-operative. Moreover, when technical services of the houses of dwelling and building co-operatives are rendered by DMSA, while making calculation for technical servicing by them, there is no consideration of the fact that dwelling and building co-operatives, due to the Law, shall calculate and pay the land tax independently. Therefore, the sums of the land tax paying by DMSA are subject to no inclusion into the cost of services concerning technical maintenance of the houses of dwelling and building co-operatives.
 
     Due to that, the Constitutional Court deems that for the purposes of securing protection of the rights and legitimate interests of citizens of the Republic of Belarus living in the houses of dwelling and building co-operatives the issues of payment of the services of DMSA for maintenance of the houses of dwelling and building co-operatives shall be subject to normative regulation taking into account the constitutional principle of social equity and the provisions of the Law "On payments for land".
 
     Guiding by Article 40, part one of Article 116 of the Constitution of the Republic of Belarus, Articles 7, 36, 38, 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 for the purposes of securing protection of the rights and legitimate interests of citizens of the Republic of Belarus living in the houses of dwelling and building co-operatives to secure normative regulation of the issues of payment of the services of dwelling maintenance and servicing associations on maintenance of the houses of dwelling and building co-operatives taking into account the constitutional principle of social equity and the provisions of the Law of the Republic of Belarus "On payments for land", by excluding ungrounded difference of citizens in payment of the land tax and giving no allowance for increase of payments for technical maintenance.
 
2. The present Decision shall come into legal force from the date of its adoption.
 
3. To publish the present Decision in accordance with the legislation.
 
Presiding Officer —
Chairman of the Constitutional Court
of the Republic of Belarus                                                                                               G.A. Vasilevich