5 June 2003 № D-158/2003
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, 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 motion on the issue of lawfulness of imposition by Novopolotsk city Council of deputies of the local due for the right to delivery of hydrocarbon raw materials for industry processing under supply giving conditions, found the following.
Novopolotsk city Council of deputies by its Decision of 28 June 2002 No. 83 "On imposition of local dues and on approval of provisions on procedure of calculation and payment of local dues imposed for 2002" (sub-item 1.4 of point 1 and sub-item 2.4 of point 2) has imposed in the territories subordinated to Novopolotsk city Council of deputies and Novopolotsk executive committee since 1 July 2002 the local due for the right to delivery of hydrocarbon raw materials for industry processing under supply giving conditions and approve the Provision on the procedure of calculation and payment of the due for the right to carry out delivery of hydrocarbon raw materials for industry processing under supply giving conditions (hereinafter refers also as Provision), which was amended by Decision of Novopolotsk city Council of deputies of 19 September 2002 No. 98.
According to the Provision legal entities, their branch offices, representations and other disintegrated departments irrespective of their subordination and forms of ownership (except for organizations having the competence of state governing), individual entrepreneurs who carry out delivery of hydrocarbon raw materials for industry processing under supply giving conditions for the enterprises within administrative subordination have been found to be the payers of the due in question.
Under Article 121 of the Constitution of the Republic of Belarus 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. The Constitutional Court in a number of its decisions has more than once paid attention to the necessity of strict observance of the specified constitutional norms: of 16 November 2001 "On local due for use of car parking in specially equipped places"; of 4 December 2001 "On local hunting due"; of 9 October 2002 "On constitutionality of setting of local due from natural persons while crossing by them the boarder of the Republic of Belarus through control-clearance points"; of 14 February 2003 "On constitutionality of Decision of Pinsk city Council of Deputies of 27 December 2001 No. 104 "On budget of the city of Pinsk 2002" in part of setting of the local due from the uses of infrastructure of the city".
Having analyzed the relevant provisions of Article 10 of the Law of the Republic of Belarus "On budget of the Republic of Belarus 2002", the Constitutional Court pays attention to the fact that oblast, Minsk city Council of deputies, Councils of deputies of the based territorial level shall set in the territory of the relevant administrative territorial units local taxes and dues under the list specified in point 1 of this Article. By setting local dues from the user and dues for the services, the local Councils of deputies, Councils of deputies of the based territorial level shall determine independently the base and objects of taxation, concrete rates, the payers, privileges, procedure of calculation and the terms for payment of taxes and dues, unless otherwise is not specified by the legislative acts of the Republic of Belarus.
Local due for the right to delivery of hydrocarbon raw materials for industry processing under supply giving conditions imposed by Novopolotsk city Council of deputies has not been stipulated in the list specified in point 1 of Article 10 of the Law "On budget of the Republic of Belarus 2002". The Constitutional Court, taking into account the due (for the right to delivery of hydrocarbon raw materials for industry processing under supply giving conditions) and analysis of the content of the norms of the Provision, which shall specify all the main elements of this due, finds no legal grounds for refer of this due to the dues from the user or to the dues for the services, as well as to no one of the local dues, where the right to impose them shall be granted the local Council of deputies by point 1 of Article 10 of the Law "On budget of the Republic of Belarus 2002".
The Constitutional Court deems that Decision of Novopolotsk city Council of deputies of 28 June 2002 No. 83 "On imposition of local dues and on approval of provisions on procedure of calculation and payment of local dues imposed for 2002" in part of imposition за the local due for the right to delivery of hydrocarbon raw materials for industry processing under supply giving conditions and the provision thereon (sub-item 1.4 of point 1 and sub-item 2.4 of point 2) shall be at variance with Article 121 of the Constitution of the Republic of Belarus and Article 10 of the Law "On budget of the Republic of Belarus 2002".
Moreover, study of the materials of the case has indicated that on 18 November 2002 the public prosecutor of the city of Novopolotsk made the protest to Novopolotsk city Council of deputies against sub-item 1.4 of point 1 of the given decision on the grounds of its inconsistency with point 1 of Article 10 of the Law "On budget of the Republic of Belarus 2002". Novopolotsk city Council of deputies has rejected the protest of the public prosecutor in its Decision of 27 December 2002 No. 121.
The Constitutional Court shall also pay attention to Resolution of cassation instance of the Economic Court of Vitebsk oblast of 28 February 2003, which shall specify, in particular, that the economic court by examining the dispute on finding to be illegal non-normative acts of the Inspection of the Ministry on taxes and dues of the city of Novopolotsk (rules on collection of the sums of the due), by making analysis of legal force of Decision of Novopolotsk city Council of deputies of 28 June 2002 No. 83, has solved the issue on legal effect of an enforceable enactment, and that is, in pursuance of Articles 5 and 11 of the Law "On the Constitutional Court of the Republic of Belarus", Article 4 of the Law "On judicial system and status of judges in the Republic of Belarus", shall fall within the competence of the Constitutional Court. However, appealing instance of the Economic Court of Vitebsk oblast has taken no measures for realization of the provisions of Article 112 of the Constitution under which if, during the hearing of a specific case, a court concludes that an enforceable enactment is contrary to the Constitution, it shall make a ruling in accordance with the Constitution and raise, under the established procedure, the issue of whether the enforceable enactment in question should be deemed unconstitutional.
Plenum of the Supreme Court of the Republic of Belarus has explained this order in its Ruling of 28 November 2001 No. 8 "On procedure of appealing of economic courts of the Republic of Belarus to the Constitutional Court of the Republic of Belarus with the proposal on verification of constitutionality of enforceable enactments" issued for the purposes of unique application by the economic courts of the Republic of Belarus of Articles 112 and 116 of the Constitution of the Republic of Belarus, Article 6 of the Law of the Republic of Belarus "On Constitutional Court of the Republic of Belarus".
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 sub-item 1.4 of point 1 and sub-item 2.4 of point 2 of Decision of Novopolotsk city Council of deputies of 28 June 2002 No. 83 "On imposition of local dues and on approval of provisions on procedure of calculation and payment of local dues imposed for 2002", which has imposed the local due for the right to delivery of hydrocarbon raw materials for industry processing under supply giving conditions and approved the provision thereof, to be at variance with Article 121 of the Constitution of the Republic of Belarus and Article 10 of the Law of the Republic of Belarus "On budget of the Republic of Belarus 2002".
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 of the