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, has examined on the grounds of part one of Article 116, part four of Article 122 of the Constitution of the Republic of Belarus the complaint on lawfulness of setting by Pinsk city Council of deputies of the local due from the users of infrastructure of the city in the presence of the imposed by Brest oblast Council of deputies purpose due for maintenance and development of infrastructure of the city (region).

     Having analyzed the relevant provisions of the Constitution, the Laws of the Republic of Belarus "On budget of the Republic of Belarus, 2002", "On local government and self-government in the Republic of Belarus", "On enforceable legal acts of the Republic of Belarus" and other enforceable legal acts, the Constitutional Court has found the following.

     In accordance with sub-item 1.5 of point 1 of Article 10 of the Law "On budget of the Republic of Belarus, 2002" Decision of Brest oblast Council of deputies of 21 December 2001 No. 94 "On budget of oblast, 2002" (hereinafter referred to as Decision of Council No. 94) had imposed a purpose due for maintenance and development of infrastructure of the city (region) (sub-item 7.2 of point 7). According to the Provision on the due in question approved by Decision of Brest oblast Council of deputies of 26 February 2002 No. 102 its payers shall be legal entities regardless of the place of their state registration and tax registration which (organizational departments thereof) are situated in the territory of Brest region, as well as natural persons (tenantry, owners of living accommodation, members of organization of citizens building their own houses), users of natural and liquefied gas with the exception of liquefied gas-cylinders. Funds of the due shall enter both into the budget of a city or a region in accordance with the locality of payers (80 per cent) and into the budget of Brest oblast (20 per cent).

     Point 8 of Decision of Council No. 94 had recommended the city and region Councils of deputies to impose the dues from a user. At the same time, like in the Law "On budget of the Republic of Belarus, 2002" (sub-item 1.1 of point 1 of Article 10), the list of types of dues from the users are open since it accepts imposition besides directly enumerated dues from a user other dues from a user.

     Pinsk city Council of deputies in its Decision of 27 December 2001 No. 104 "On budget of the city of Pinsk, 2002" had imposed the local due from the users of infrastructure of the city and approved the Provision thereon, and into which there were made alterations and addenda by Decisions of 30 April 2002 No. 117 and of 20 September 2002 No. 126.

     By acknowledging the right of Pinsk city Council of deputies to imposition of the local due from the users of infrastructure of the city as the right based on the provisions of Article 10 of the Law "On budget of the Republic of Belarus, 2002", the Constitutional Court, at the same time, shall pay attention to the following.

     According to the Provision on the local due from the users of infrastructure of the city the payers of the specified due shall be: the owners of means of transport; owners of individual house and gardens; citizens who are providing living accommodation (a renter); citizens who drawing up visas and permits for exit abroad in the department of visas and permits of Pinsk city department of interior; citizens who expressed the assent to register themselves as an individual entrepreneur; economic entities which are granting the right to placing of a trading kiosk (pavilion); economic entities which are granting permit of the executive committee to placing in the territory of the city of their branch offices, representations and other separate departments without making a legal entity; legal entities which are out of the bounds of the city and which are not registered in the inspection of the Ministry on Taxes and Dues within the city of Pinsk, whose branch offices, organizational departments, representations, shops etc. are in the territory of the city with making no legal entities (sub-items 1.1 - 1.8 of point 1); legal entities, their branch offices, representations, individual entrepreneurs who and which are arriving temporary in the city for carrying out cultural and large-scale, trade and other activities (sub-item 2.7 of point 2).

     While applying the relevant norms of the given Provision in practice the same natural or legal person may be forced to pay several times the due from the users of the infrastructure of the city. For example, a natural person, the owner of a conveyance, shall pay the due at the rate of two base values by registration of a conveyance and at the rate of one base value - by technical check-up (sub-item 2.1 of point 2). The same citizen may be the owner of an individual house and grounds or a citizen who was granted the living accommodation (a renter), and he/she will be also forced to pay the due as an individual householder - at the rate of 2,840 roubles per year from each resident (a registered person) or as a citizen who are granting a living accommodation, - at the rate of one base value (sub-items 2.2 and 2.3 of point 2). The same citizen while applying for the permit for exit abroad shall pay the due at the rate of 1,500 roubles (sub-item 2.4 of point 2). If the same citizen expresses the assent to be registered himself/herself as an individual entrepreneur, he/she shall pay the due at the rate of 10 base values (sub-item 2.5 of point 2). By granting the rate to place a trade kiosk he/she shall pay the due at the rate of 40 base value s (sub-item 2.6 of point 2). Thus, according to the Provision the same natural person shall be forced to pay five times the due from the users of infrastructure of the city. Moreover, in accordance with Decision of Brest oblast Council of Deputies of 26 February 2002 No. 102 if a citizen (a renter, an owner of a dwelling house, a member of an organization of citizens building their own houses) is the user of natural and liquefied gas with the exception of liquefied gas-cylinder, he/she shall also pay the due for maintenance and development of infrastructure of the city at the rate of 10 per cent of gas cost.

     With respect to many of payers of the due from the users of infrastructure of the city which are specified in the Provision approved by Decision of Pinsk city Council of deputies, there are effective legislative acts of the Republic of Belarus under which they are payers of compulsory payments while carrying out similar actions or in the presence of the definite property.

     Thus, as for the citizens who expressed their assent to be registered as an individual entrepreneur(s) they are subject to pay for state registration the sum which is equivalent to 6 EURO (Provision on state registration and liquidation (termination of activities) of economic entities approved by Decree of the President of the Republic of Belarus of 16 March 1999 No. 11 in the wording of Decree of 17 December 2002 No. 29).

     Legal entities, owners of conveyances, under the Law "On road funds in the Republic of Belarus" are the payers of the automobile (motor) conveyance acquisition tax (Article 9), the automobile (motor) road users tax (Article 11).

     Under the Law "On national duty" and in accordance with Resolution of the Council of Ministers of the Republic of Belarus of 26 February 1993 No. 105 the citizens shall pay the national duty for issuing the documents for the right to exit abroad and enter from abroad.

     The Constitutional Court deems that while specifying the circle of payers Pinsk city Council of deputies had no regard to all the provisions of part one of point 2 of Article 10 of the Law "On budget of the Republic of Belarus, 2002" under which oblast, Minsk city Councils of deputies of base territorial level shall specify independently the base and the objects of taxation, concrete rates, payers, privileges, procedure of calculation and terms for payment of local taxes and dues, unless otherwise specified by the legislative acts of the Republic of Belarus.

     The analysis of the norms of the Provision on purpose due for maintenance and development of infrastructure of the city (region) approved by Brest oblast Council of deputies as well as of the Provision on local due from the users of infrastructure of the city approved by Pinsk city Council of deputies shall signify about their similarity in point. Thus, payers of the due from the users of infrastructure of the city imposed by Pinsk city Council of deputies may not be the persons who are referred to the payers of the purpose due for maintenance and development of infrastructure of the city (region) set by Brest oblast Council of deputies, as well as persons who are payers of other compulsory payments imposed by the legislative acts in connection with carrying out the similar actions or in the presence of the definite property.

     The Constitutional Court emphasizes that as for the given instance those persons may be referred to legal entities, their branch offices, representations, individual entrepreneurs who and which are arriving temporary in the city for carrying out cultural and large-scale, trade and other activities specified by sub-item 2.7 of point 2 of the Provision on local due from the users of infrastructure of the city.

     Imposition by Pinsk city Council of deputies of the due from the users of infrastructure of the city shall prevent from realization freely by the citizens of their rights envisaged in the legislative acts. In particular, point 5 of the Provision on local due from the users of infrastructure of the city shall envisage that without the presentation of a document on payment of the due the city executive committee shall not conclude a contract of tenancy of a living accommodation and shall issue no certificate on the right of ownership to real estate; according to point 6 without presentation of the receipt on payment of the due there is no undertaking of the documents by the department of visas and permits.

     By specifying its position on the given issue, the Constitutional Court shall pay 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 deems that with 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, 2002" and without the specification of which local taxes and dues may not be considered to be set lawfully. As a preferable variant for the solution of the issue would be specification in the law of the exhaustive list of local taxes and dues within which local Councils of deputies may impose in the relevant administrative territory local taxes and dues as it took place in the laws on budget in the period since 1998 up to 2001.

     Decisions of local Councils of deputies of base territorial level in the sphere of local taxation which involve directly the constitutional rights of citizens, as the practice of examination of the decisions in question the Constitutional Court of the Republic of Belarus (Decisions 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 of the boarder of the Republic of Belarus through control-crossing points") there is a great number of shortcomings as for their content. Due to that the Constitutional Court considers it necessary to strengthen control and supervision over the conformity between decisions of local bodies of government and self-government with the Constitution and the laws 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 that Pinsk city Council of deputies in accordance with sub-item 1.1 of point 1 of Article 10 of the Law "On budget of the Republic of Belarus, 2002" shall have the right to impose the local due from the users of infrastructure of the city. However, by imposing the specified due, Pinsk city Council of deputies has violated the requirements of the legislative acts, as well as there is no clarification of the provisions of Decision of Brest oblast Council of deputies of 21 December 2001 No. 94 "On budget of oblast, 2002" in part of determination of the circle of payers of the due and in part of finding their responsibility for non-payment or untimely payment of the due.

To find point 1 of the Provision on local due from the users of infrastructure of the city approved by Decision of Pinsk city Council of deputies of 27 December 2001 No. 104 with alterations and addenda made thereinto, as well as other norms of the Provision based on the given point to be at variance with the Constitution and the laws of the Republic of Belarus and to be void from the date of adoption of those Decisions.

For Pinsk city Council of deputies to bring the specified Provision into line with the legislation and with the present Decision.

To propose Pinsk city executive committee and the Inspection of the Ministry on Taxes and Dues within the city of Pinsk according to the procedure specified in the legislation to solve the issue on repayment or as in payment on other accounts of the sums of payments made and collected from the persons listed in point 1 of the Provision on local due from the users of infrastructure of the city approved by Decision of Pinsk city Council of deputies of 27 December 2001 No. 104 with alterations and addenda thereinto.

2. To propose the Parliament to specify in the law on budget for the next year or in other legislative acts in order to secure the protection of the rights and lawful interests of tax payers and in order to exclude from the instances of duplication of decisions of local Councils of deputies the exhaustive list of local taxes and dues, which local Councils of deputies may impose in the relevant territory, as well as to determine parameters of the most important elements of local taxes and dues (payers, objects of imposition, size of rates, procedure and terms for payment) within the frame of which local Councils of deputies may set the concrete objects of taxation, size of rates, payers, privileges, procedure of calculation and terms for payment of local taxes and dues.

3. The present Decision shall come into legal force from the day 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