16 December 2003 № D-166/2003
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 T.S. Boiko, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin, having examined on the grounds of part four of Article 122 of the Constitution of the Republic of Belarus the appeal on lawfulness of imposition of local due for the services put for 2003 by Mogilov city Council of deputies, services of departments of associations "Guard" concerning guarding the flats and installation of guarding signallization.
As a result of making analysis of the relevant provisions of the Constitution of the Republic of Belarus, Laws of the Republic of Belarus "On budget of the Republic of Belarus for 2003", "On taxes and dues collected to the budget of the Republic of Belarus", "On local government and self-government in the Republic of Belarus" and other enforceable enactments, the Constitutional Court found the following.
According to sub-item 1.3 of point 1 of Article 10 of the Law "On budget of the Republic of Belarus for 2003" (hereinafter - Law) oblast, Minsk city Councils of deputies, Councils of deputies of based territorial level shall impose in the territory of the relevant administrative and territorial units the dues for the services (the due for services of hotels, campings, motels, restaurants, bars, cafes and other objects of service). The specified Councils of deputies on the basis of point 2 of the given Article shall determine independently the base and the objects of taxation, concrete rates, payers, privileges, procedure of calculation and terms for payment of local taxes and dues in accordance with the Law in question and with other legislative acts of the Republic of Belarus.
Decision of Mogilov city Council of deputies of 24 December 2002 No.23-2 "On budget of the city of Mogilov for 2003" had set since 1 January 2003 in the territory of the city of Mogilov the local due for the services (sub-item 7.2 of point 7) and approved the Provision on due for the services in the territory of the city of Mogilov for 2003 (hereinafter - Provision).
Point 2 of the Provision specifies that the services rendered by economic entities concerning guarding the flats and installation of guarding signalization shall be subject to imposition by the due. The object of imposition by the due for the services shall be the receipts from services which shall be the cost of a service under realization calculated on the grounds of effective prices (rates) with the due for the services taking into account.
By acknowledging the right of Mogilov city Council of deputies to set the local due for the services as the right based on the provisions of Article 10 of the law "On budget of the Republic of Belarus for 2003", the Constitutional Court emphasizes the following.
The law maker, by granting oblast, Minsk city Councils of deputies, Councils of deputies of based territorial level to set the local dues for the services, has specified at the same time that services of hotels, campings, motels, restaurants, bars, cafes and other objects of service (sub-item 1.3 of point 1 of Article 10 of the Law) may be subject to imposition by the due in question. Moreover, the Constitutional Court pays attention to the fact that the law maker envisages no exhaustive list of the objects of the service and specify no criteria of referring the services to the services of objects of service.
Guarding activities in the Republic of Belarus shall be regulated by Decree of the President of the Republic of Belarus of 23 December 1998 No. 24 "On measures for improvement of guarding activities in the Republic of Belarus" (hereinafter - Decree) with alterations and addenda made by Decrees of 31 August 1999 No. 34 and of 30 August 2002 No. 22.
Guarding activities according to the Decree shall be guarding against anti-legal infringements of natural persons, objects (property) of legal and natural persons, including transferring goods, as well as designing, installation, adjustment, technical maintenance of guarding means and systems.
According to point 1 of Decree guarding activities shall be carried out by the listed in it organizations. They are association "Guard" under the Ministry of Internal Affairs (hereinafter - association "Guard"), Security Service of the President of the Republic of Belarus, Ministry of Defence, Committee of State Security, State Committee of frontier troops which are entitled to carry out guarding of natural persons, objects (property) of legal and natural persons against anti-legal infringements; other state bodies, enterprises, establishments, organizations regardless of their forms of ownership which carry out guarding of their permanent members of the staff and the objects (property) belonging to those bodies, enterprises, establishments, organizations on the basis of special permissions (licences).
Powers of association "Guard" related to carrying out guarding activities are specified in point 3 of Decree, according to which association "Guard" shall work out and take the measures directed to realization of state policy in the field of guarding activities; carry out guarding of public order and make arrangements for prevention a crime at the objects under guard, at sentries zones and patrol routs; secure the observance of technical specifications in the sphere of designing and production of the means and systems of guarding signalization, exercise control over their introduction and operation; exercise control over securing guarding of the objects of the bodies, enterprises, establishments, organizations (with exception of the objects which are under safeguarding of Security Service of the President of the Republic of Belarus, Ministry of Defence, Committee of State Security and other objects with special regime of guarding); carry out on contractual basis (in instances specified by the legislation, - from the funds of republican and local budgets) guarding activities and maintenance of public order; carry out certification of means and systems of guarding; issue special permissions (licences) for the bodies, enterprises, establishments, organizations for guarding their staff workers and belonging to those bodies, enterprises, establishments, organizations objects (property), as well as for designing, installation, adjustment and technical maintenance of means and systems of guarding (with exception of means of individual use); conclude with the bodies, enterprises, establishments, organizations, which have special permissions (licences), the contracts about conditions and rules of exercise of the relevant guarding activities; exercise control over guarding activities which is carrying out on the grounds of special permissions (licences); adopt within its powers obligatory for the bodies, enterprises, establishments, organizations.
The Constitutional Court emphasizes that the analysis of the content of powers of association "Guard" specify no unique conclusion that the given types of activities shall be referred to the services carrying out by other "objects of service" specified in the Law together with the services of hotels, campings, motels, restaurants, bars, cafes listed in sub-item 1.3 of point 1 of Article 10 of the Law "On budget of the Republic of Belarus for 2003".
Taking into account the abovementioned, the Constitutional Court deems that the concrete list of objects of service, which may be subject to imposition by the local due should be determined on the legislative level. Such an approach towards regulation of the issues of local taxation will be in line in full with the provisions of Article 121 of the Constitution according to which the setting of local taxes and dues in accordance with the law shall fall exclusively within the exclusive competence of the local councils of deputies.
Guiding by part one of Article 116, 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 that Mogilov city Council of deputies in accordance with sub-item 1.3 of point 1 of Article 10 of the Law of the Republic of Belarus "On budget of the Republic of Belarus for 2003" shall have the right to set the local due for services. However, association "Guard" under the Ministry of Internal Affairs of the Republic of Belarus was referred by Mogilov city Council of deputies to "objects of service" without taking into account sufficient legal grounds and without the nature of activities of the specified association.
2. To propose the National Assembly of the Republic of Belarus for the purposes of following unified tax policy in the Republic of Belarus and removal from ill-grounded practice of setting by local Councils of deputies of the dues for the services to specify in the law the criteria of referring of organizations (types of activities) concerning rendering services to the objects of service.
3. The present Decision shall come into legal force from the date of adoption.
4. To publish the present Decision in accordance with the legislation.
Presiding Officer — Chairman of the of the