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, G.B. Shishko, V.Z. Shuklin, having examined on the basis of Article 40 and part one of Article 116 of the Constitution of the Republic of Belarus complaint of Ljuban region council of Belarusian social association of veterans, as well as single citizens on the issue of granting invalids of the Great Patriotic war privilege on compulsory insurance of buildings owned by them, found the following.

According to point 1 of Decree of the President of the Republic of Belarus of 8 October 1997 No. 18 "On compulsory insurance of buildings owned by citizens" object of compulsory insurance shall be buildings (dwelling houses and household (subsidiary) structures, including garages located within the limits of certain plot of land) owned by citizens of the Republic of Belarus, by foreign citizens and by stateless persons (hereafter - insurants) and which are constantly used for living in and for household needs by insurants, members of their families or by other persons with the consent of a proprietor. Point 4 of the given Decree shall stipulate waiver (exemption from pay) of the premium of invalids of the Great Patriotic war and those persons equated therewith. According to the Procedure of waiver of the premium and of granting privileges on compulsory insurance of buildings owned by citizens approved by resolution of the Council of Ministers of the Republic of Belarus of 8 January 1998 No. 16 waiver of the premium shall be made on the grounds of statement and presentation of documents: for invalids of the Great Patriotic war and for the persons equated therewith - passports, certificates of an invalid of the Great Patriotic war, certificates of an invalid on the right to privileges, certificates of a participant of the war with the relevant insert. Decision on the results of examination of statements shall be taken by the head of the branch office of Belarusian unitary insurance company "Belgosstrakh". Instruction on accounting of buildings, on calculation and payment of insurance premium, specification and payment of insurance compensation on compulsory insurance of buildings owned by citizens, approved by the Ministry of finance of the Republic of Belarus of 16 April 1998 with further alterations, shall contain no additional norms in comparison with the aforespecified norms regulating the issue at question.

Analysis of the law enforcing practice shall signify that Belgosstrakh shall consider to be insurants only citizens - owners of buildings in whose favour buildings are registered: if a building has been registered in favour of an invalid of the Great Patriotic war a privilege shall be granted regardless of the presence of joint co-owners and regardless of the structure of a family; if, for example, a building has been registered in favour of a wife of an invalid of the Great Patriotic war, there shall be granted no privilege. Such a procedure for granting privileges shall be specified by the fact that since insurants in that type of insurance shall be owners of buildings, and the right of ownership to real estate in accordance with Article 220 of the Civil Code of the Republic of Belarus (hereafter - the CC) shall be subject to registration, then the privileges on payment shall be granted only the persons who registered their right of ownership in the specified procedure. While examining the claims of Belgosstrakh concerning recovery of arrears on compulsory insurance of buildings by insurants - spouses of invalids of the Great Patriotic war, as a rule, there is no consideration to the arguments of defendants that the given real estate is in collective joint ownership where one of the participants shall be an invalid of the Great Patriotic war who shall have the specified in the legislation right to exemption from insurance premium.

State registration of housing stock in the Republic of Belarus shall be carried out in accordance with resolution of the Council of Ministers of 3 September 1999 No. 1372 "on procedure of state accounting of housing stock" and Instruction on the procedure of state registration of housing stock in the Republic of Belarus approved by order of the Ministry of housing and communal economy in the Republic of Belarus No. 176, the Ministry of economics of the Republic of Belarus No. 119, the Ministry of finance of the Republic of Belarus No. 379, the Ministry of statistics and analysis of the Republic of Belarus No. 262 of 3 December 1999. Those enforceable legal enactments shall have no affect, unlike collective share holding ownership, of juridically significant fact of collective joint ownership on real estate under regulation.

The Constitutional Court emphasizes that the determinative features of buildings as objects of compulsory insurance shall be, first of all, their belonging to the citizens as property, secondly, permanent use of the buildings in question for the needs of insurants, members of their families or other persons with the consent of the proprietors.

According to point 2 of Article 246 of the CC property may be in joint ownership with specification of a share of each of the owners in the right of ownership (share holding ownership) or without specification of those shares (joint ownership). Participants of collective joint ownership in accordance with Article 256 of the CC, unless otherwise is stipulated in the agreement among them, shall jointly possess and make use of collective property. Disposal of property which is in joint ownership shall be carried out with the consent of all participants which is presupposed to be regardless of the fact who of the participants has made a transaction on property disposal.

According to point 1 of Article 259 of the CC the property, made by spouses in marriage, shall be in their joint ownership, if an agreement specifies no other regime of the property in question. Point 13 of ruling of Plenum of the Supreme Court of the Republic of Belarus of 4 June 1993 No. 5 "On practice of settlement by the courts of law of disputes connected with right of ownership in dwelling house" (with alterations and addenda made by ruling of Plenum of the Supreme Court of 25 March 1999 No. 2) has specified that the house built or acquired by married spouses shall be their joint collective property no matter who has been granted life-long hereditary succession of a plot of land for building and service operation of a dwelling house, no matter who of them is specified in the contract of acquisition of a house, as well as in whose favour the house is registered.

The Constitutional Court emphasizes that, if a building which is subject to insurance is in collective joint ownership of its participants, where one of them is an invalid of the Great Patriotic war, and since the lawmaker shall not specify that the privilege is granted within a part of joint property which would be due to him/her in case of division (partition) of that property, invalids of the Great Patriotic war and persons equated therewith shall be subject to exemption from payment of insurance premium for the buildings owned by them, including those buildings jointly owned with other participants of that property regardless of the fact in favour of whom of the participants of collective joint ownership the building is registered and who of the participants of that property is the insurant.

Different approach to granting the specified by the legislative act privilege shall entail inequality of citizens who shall refer to the same category of the subjects of law and who shall have the right to concrete privilege. Under Article 58 of the Constitution no one shall be compelled to discharge duties that are not specified in the Constitution of the Republic of Belarus and its laws or renounce his rights.

The Constitutional Court deems that the right stipulated by Decree of the President of the Republic of Belarus of 8 October 1997 No. 18 for the invalids of the Great Patriotic war and for those persons equated therewith to exemption from payment of insurance premium should be secured by appropriate mechanism of its realization which shall not infringe upon the rights of the given category of citizens.

Guided by Article 40, part one of Article 116, Articles 7, 36, 38, 40, 40¹ of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court

RULED:

1. To note that effective legislation shall grant invalids of the Great Patriotic war and persons equated therewith the privilege in payment of insurance premium on compulsory insurance of buildings owned by them also in instance, when those buildings are in collective joint ownership of an invalid (person equated therewith) or of a spouse.

2. To propose the Council of Ministers of the Republic of Belarus to secure realization by invalids of the Great Patriotic war and persons equated therewith of their right to be exempted from payment of insurance premium on compulsory insurance of buildings owned by them as collective joint ownership with other participants of that property in accordance with the effective legislation.

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

4. To publish the present Decision in accordance with legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich