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 V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin, having examined on the grounds of Article 40, part one of Article 116, part four of Article 122 of the Constitution of the Republic of Belarus address of citizens on ill-founded, in their opinion, collection of local due while crossings border by them, found the following.

     Under Article 121 of the Constitution of the Republic of Belarus setting in accordance with the law of local taxes and dues shall fall exclusively within the exclusive competence of the local Councils of deputies.

     Article 10 of the Law "On budget of the Republic of Belarus 2002" (hereinafter also referred to as the Law) shall specify the list of local taxes and dues which shall be imposed in 2002 by oblasts, Minsk city Councils of deputies, Councils of deputies of based territorial level in the territory of the relevant administrative territorial units. Among those taxes and dues there are dues from natural persons while crossing by them the border of the Republic of Belarus through control-crossing points (sub-item 1.7 of point 1 of Article 10 of the Law).

     On the grounds of point 2 of Article 10 of the Law oblasts, Minsk city Council of deputies, Councils of deputies of based territorial level shall specify independently the base and the objects for taxation, concrete rates, payers, privileges, procedure of calculation and terms for payment of local taxes and dues, unless otherwise is established by the legislative acts of the Republic of Belarus. At the same time, according to point 3 of Article 10 of the Law payers of local taxes and dues may be legal and natural persons.

     In accordance with point 8 of Decision of Brest oblast Council of deputies of 21 December 2001 No. 94 the powers on imposition of the due from natural persons while crossing by them the border of the Republic of Belarus through control-crossing points by Brest oblast Council of deputies have been transferred to city and region Councils of deputies.

     Decision of Brest city Council of deputies of 28 December 2001 No. 93 "On budget of the city of Brest 2002" has imposed the local due from natural persons while crossing by them the border of the Republic of Belarus through control-crossing point "Warsaw bridge" and has approved the provisions on the due in question. Thereafter, Decision of Brest city Council of deputies of 7 June 2002 No. 117 the specified due has been also imposed while crossing by natural persons the border through the point of customs clearing No. 104 "Brest-Central". Provisions on local due from natural persons while crossing by them the border of the Republic of Belarus through control-crossing points have been approved by Decision by the given Council of deputies of 7 June 2002 No. 117 in a new wording.

     Kamenets region Council of deputies has imposed the local due from natural persons while crossing by them the border of the Republic of Belarus through control-crossing point "Peschatka" by Decision of 27 December 2001 No. 97 "On budget of region 2002". Provisions on the specified due have been approved by Decision of Kamenets region Council of deputies of 29 January 2002 No. 106 (effective with alterations and addenda made thereinto by Kamenets region Council of deputies of 21 June 2002 No. 116).

     Local due from natural persons while crossing by them the border of the Republic of Belarus through control-crossing points "Domachevo - Slovatychi" and "Tomashovka" has been imposed by Decision of Brest region Council of deputies of 27 December 2001 No. 174 "On budget of region 2002" (point 5). Joint Resolution of Brest region executive committee and presidium of Brest region Council of deputies of 8 January 2002 No. 21/245 "On imposition of due from natural persons while crossing by them the border of the Republic of Belarus through control-crossing points "Domachevo - Slovatychi", "Tomashovka" has duplicated Decision of Council of deputies on imposition of due and approved the provisions thereon. Resolution of region executive committee and presidium of region council of 19 March 2002 No. 176/266 has approved the Provisions on local due from natural persons while crossing by them the border of the Republic of Belarus through control-crossing points "Domachevo - Slovatychi" and "Tomashovka" in a new wording. Brest region Council of deputies has approved the specified Resolutions by its Decisions of 21 March 2002 No. 194 and No. 201.

     At present the Provisions on local due from natural persons while crossing by them the border of the Republic of Belarus through control-crossing points "Domachevo - Slovatychi" and "Tomashovka" shall be effective taking into account alterations made in previous order: originally by joint Resolution of Brest region executive committee and presidium of region Council of deputies of 29 April 2002 No. 295/272, and after that by Decision of Brest region Council of deputies of 27 June 2002 No. 210 on approval of Resolution on making alterations.

     Such an order of setting of local taxes and dues as well as making alterations in the Provisions thereon has been applied by Brest region executive committee and presidium of region Council of deputies on the grounds of Decision of Brest region Council of deputies of 27 December 2001 No. 174 "On budget of region 2002" where point 16 contains instructions for region executive committee: a) to consider the remarks and proposals expressed at session of region Council of deputies while discussing budget 2002, and based on the possibilities to adopt with regard to them the relevant decisions; b) having regard to the fact that in the process of execution of budget 2002 there are possible deviations both as regards revenues and expenditures from their original scope, to make specifications on revenues and expenditures of local budget, on mutual settlements of regional budget with rural and settlement Councils in co-ordination with presidium of the Council of deputies and furtherafter approval at session of region Council of deputies.

     Prior to that, the Constitutional Court in its Decisions of 18 August 1999 "On Decision of Grodno city executive committee of 4 March 1999 No. 185 "On imposition of local dues" and of 16 November 2001 "On local due for use of car parks and parking in specially equipped places" had expressed its legal position on unconstitutionality of delegation by local Councils of deputies their exclusive competence to executive committees.

     By force of Article 121 of the Constitution of the Republic of Belarus which shall specify the issues of exclusive competence of local Councils of deputies, Article 10 of the Law "On budget of the Republic of Belarus 2002", Articles 14, 16, 19, 25 of the Law "On local government and self-government in the Republic of Belarus" setting of local taxes and dues may not be also delegated to presidium of Council, which in accordance with the legislation shall perform organizational and co-ordinating functions.

     The mentioned in the given Decision Provisions on local due from natural persons while crossing by them the border of the Republic of Belarus through control-crossing points shall have necessary for specification of the due indications on its payers, rates, procedure of calculation and payment; there are also envisaged the privileges on payment. The Provisions shall also stipulate the procedure of use of the means of the local due in question.

     As for the question of applicants on collection of the due from natural persons while crossing by them the border of the Republic of Belarus through control-crossing points without rendering them additional services, the Constitutional Court emphasizes that in accordance with the Law "On taxes and dues collected into the budget of the Republic of Belarus" taxes and dues, raised into the budget of the Republic of Belarus shall be obligatory deductions of money resources from payers within the rates specified in law. Legislation makes no distinct differentiation between those notions.

     In the opinion of the Constitutional Court dues shall be referred to money obligations collected individually not for a service but in connection with the service rendered by a state body which acts in common interests by realizing its state and authoritative powers.

     In this particular case a service, in connection with which the due shall be collected, is determined in the Law "On budget of the Republic of Belarus 2002" - giving natural persons the possibility to cross the border of the Republic of Belarus through control-crossing points while realizing the right to exit abroad. Procedure of use of the means of the due, which has been established by the Provisions of the due in question, shall stipulate their allocation to the improvement of infractructure and equipping with services and utilities of control-crossing points and adjoining frontier posts, financing of arrangements on regulation of passage, securing public order, organization of cleaning, illumination at entrances to frontiers passings, for the needs of maintenance of engineering equipment, as well as for other needs connected with activities of state bodies on securing the possibility of realization by the citizens of their right to exit beyond the bounds of the territory of the Republic of Belarus.

     Guided by Article 40, 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 emphasize that Decisions of Brest city Council of deputies of 28 December 2001 No. 93 "On budget of the city of Brest 2002", of Kamenets region Council of deputies of 27 December 2001 No. 97 "On budget of region 2002", of Brest region Council of deputies of 27 December 2001 No. 174 "On budget of region 2002" in part of imposition of local due from natural persons while crossing by them the border of the Republic of Belarus through control-crossing points shall be in conformity with Article 121 of the Constitution of the Republic of Belarus and with Article 10 of the Law of the Republic of Belarus "On budget of the Republic of Belarus 2002".

2. To pay attention of Brest region Council of deputies to unconstitutionality of delegation of its exclusive competence to the executive committee and to presidium of Council of deputies.

To propose Brest region Council of deputies to alter the practice of further approval of provisions on local dues and as regards alterations in those provisions after their adoption by executive committee and presidium of local Council of deputies.

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 effective legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich