Having analysed the relevant provisions of the Constitution of the Republic of Belarus, the Civil Code of the Republic of Belarus, Decree of the President of the Republic of Belarus of 14 July 2003 No. 17 "On licensing of certain types of activities", laws of the Republic of Belarus "On entrepreneur activities in the Republic of Belarus", "On taxes and dues collected into the budget of the Republic of Belarus", "On local government and self-government in the Republic of Belarus", "On budget of the Republic of Belarus for 2002", other acts of tax legislation the Constitutional Court, found the following.

     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.

     List of local taxes and dues, which in 2002 oblast, Minsk city Councils of deputies, Councils of deputies of based territorial level set in the territory of the relevant administrative and territorial units, is contained in Article 10 of the Law "On budget of the Republic of Belarus, 2002". The due for the right to trade is among the dues from the user (sub-item 1.1 of point 1 of Article 10).

     Therefore, Novopolotsk city Council of deputies, by approving the Provision on the procedure of calculation and payment of the local due for the right to trade, in its Decision of 27 December 2001 No. 56 "On approval of the provisions on the procedure of calculation and payment of local dues set for 2002", as well as by the following making alterations and addenda into the specified Provision (decisions of 28 March 2002 No. 68 and of 28 June 2002 No. 82), has realized the powers granted by the Law "On budget of the Republic of Belarus for 2002). According to point 2 of Article 10 of the given Law oblast Councils of deputies, Minsk city Council of deputies, Councils of deputies of based territorial level shall specify themselves the base and objects of taxation, concrete rates, payers, privileges, procedure of calculation and terms of payment of local taxes and dues unless otherwise stipulated by the legislative acts of the Republic of Belarus.

     In the opinion of the Constitutional Court, Novopolotsk city Council of deputies has established the necessary elements, which make it possible to consider the obligation to pay the local due in question to be determined.

     Under Article 56 of the Constitution citizens of the Republic of Belarus shall contribute towards the funding of public expenditure through the payment of state taxes, dues and other payments.

     The Constitutional Court emphasizes that this is constitutional obligation has specific, public and legal nature, and this is conditioned by public and legal nature of the state and state power. Taxes, duties and dues shall be the necessary condition for existence of any state, and that is why the obligation to pay them shall cover all the taxpayers as an absolute requirement of the state.

     At the same time, the Constitutional Court pays attention to the fact that according to point 44 of the list of types of activities, which are subject to special permissions (licensing) and state bodies and organizations authorized to their issue, approved by Decree of the President of the Republic of Belarus of 14 July 2003 No. 17, retail trade and public catering shall be referred to the types of activities, which are subject to special permission (licensing). The right to carry out activities, which are subject to licensing, owing to point 2 of Article 22 and part two of point 3 of Article 45 of the Civil Code is arising from the moment of obtaining such a license or within the time period fixed in it and shall be terminated on the expiry of the time period of its effect unless otherwise specified by the legislation. According to Article 7 of the Law "On entrepreneur activities in the Republic of Belarus" an entrepreneur is obliged to obtain in the prescribed procedure a special permission (license) for the activities in the spheres, which are subject to licensing in accordance with the legislation of the Republic of Belarus.

     Point 4 of the Provision on licensing of certain types of activities approved by Decree of the President of the Republic of Belarus of 14 July 2003 No. 17, shall specify that the license shall be issued for the concrete type of the activities (with specification of the works and services forming the activities in question) and is effective in the whole territory of the Republic of Belarus or in its part in accordance with the legislation. The body issuing licenses shall collect, for the consideration of the application with addendum of essential documents for obtaining the license, for the prolongation of the term of its effect, the license due in the sum equivalent to 10 EURO; for the issue of the license there shall be collected the due in the sum in the sum equivalent to 90 EURO (point 37 of the Provision). License due shall be placed by the applicant for the license or by the license-holder to the special account of a tax body according to the location of licensing body and entered the relevant budget (point 38 of the Provision).

     The Constitutional Court deems that, if the legislative acts of the Republic of Belarus specify the duties and dues for the right to trade, for the purposes of exclusion of ill-grounded raising of the rates of the local dues from the user, the right to set such a local due by the local Councils of deputies should be specified in details by the lawmaker.

     In its Decision of 14 February 2003 "On the constitutionality of Decision of Pinsk city Council of deputies of 27 December 2001 No. 104 "On budget of the city of Pinsk for 2002" in part of imposition of the local due from the users of infrastructure of the city" the Constitutional Court had paid attention to the stipulated in part two of Article 132 of the Constitution the principle of unity of the fiscal, tax and currency policy which shall be pursued in the territory of the Republic of Belarus, as well as to the fact that under Article 121 of the Constitution 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. In that connection the Constitutional Court had specified that for the purpose of ensuring the protection of the rights and lawful interests of tax payers, securing the adoption by local Councils of deputies of optimal decisions in the field of local taxation and exclusion from the instances of duplication of decisions of local Councils of deputies of different levels, the law should specify all the most important elements of local taxes and dues (payers, objects of taxation, rates, procedure and terms for payment) within which local Councils of deputies may determine the concrete objects of taxation, rates, payers, privileges, procedure of calculation and terms for payment of local taxes and dues as it is envisaged in point 2 of Article 10 of the Law "On budget of the Republic of Belarus for 2002" and without the specification of which local taxes and dues may not be considered to be set lawfully.

     Study of applications of citizens to the Constitutional Court on the issues of setting local taxes and dues shall signify that the majority of these applications are related to setting local taxes and dues from the user, i.e. those local dues the parameters of the most important elements of which, in contrast to those set in point 3 of Article 10 of the Law "On budget of the Republic of Belarus 2003", have been never specified.

     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 Decision of Novopolotsk city Council of deputies of 27 December 2001 No. 56 "On approval of the provisions on the procedure of calculation and payment of local dues set for 2002" with alterations and addenda made by Decisions of 28 March 2002 No. 68 and of 28 June 2002 No. 82 in part of the local due for the right to trade had been adopted within the powers granted by the Law of the Republic of Belarus "On budget of the Republic of Belarus for 2002".

2. To propose the National Assembly of the Republic of Belarus for the purposes of observance of the constitutional provision on the unified fiscal, tax, credit and currency policy which shall be pursued in the territory of the Republic of Belarus (part two of Article 132 of the Constitution of the Republic of Belarus) and for securing the protection of the rights and lawful interests of taxpayers while adopting the law on budget of the Republic of Belarus for 2004 to pay attention to the necessity of specification of exhaustive list of local taxes and dues, which local Councils of deputies may set in the relevant territory, as well as to determine the parameters of the most important elements of local dues from the user (payers, objects of taxation, limits of rates).

3. The present Decision shall come into legal force from the date of its adoption.

4. 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