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.G. Tikovenko, R.I. Filipchik, G.B. Shishko, Shuklin V.Z., has examined on the basis of Article 40, part one of Article 116 of the Constitution of the Republic of Belarus application of the Chairperson of the Board of Directors of public joint-stock company "Savings bank "Belarusbank" N.A. Ermakova on lawfulness of granting soft credits for building (reconstruction) or acquisition of living accommodations for the citizens of pension age, as well as on the rightness of the procedure of determination of aggregate family income and status of a family according to resolution of the Council of Ministers of the Republic of Belarus of 20 December 2000 No. 1955. The application has specified that according to the legislation the public joint-stock company "Savings bank "Belarusbank" shall be entrusted with granting soft credits. Specified resolution of the Council of Ministers of 20 December 2000 No. 1955 has approved Provision on referring citizens to the category of able-bodied citizens of moderate means for granting state support while building (reconstructing) or acquiring living accommodation (hereafter - Provision).

Under point 1 of that Provision able-bodied citizens shall be citizens who are able to carry out labour activities. As it is noted in the application, in practice soft credits are granted for both the citizens at the able-bodied age and for the citizens of pension age (including 70 - 80 years and more), as well as for single persons of moderate means. Due to low scale of pension and high cost of dwelling, payments of credit and interests shall be the most part of the pension of citizens. In case of untimely refund of credit with a view to clear off overdue repayment, bank shall collect higher interests. The application also specifies that one of the conditions to obtain soft credit shall be availability of certain amount of property owned by citizens.

Citizens should make valuation of property by themselves, and that is difficult for them. As a result that may lead to the facts of presenting by citizens of untrue information.

The Constitutional Court, having analysed provisions of the Constitution, laws and other enforceable enactments of the Republic of Belarus, found the following. The Constitution enshrines that the Republic of Belarus is a unitary, democratic, social state based on the rule of law (Article 1) and proclaim safeguarding the rights and liberties of the citizens of the Republic of Belarus to be the supreme goal of the State (Article 21).

The Constitution enshrines equality of all before the law and the right without discrimination to equal protection of their rights and legitimate interests (Article 22). By specifying the mechanism for safeguarding the rights and liberties of the citizens Article 59 of the Basic Law shall entrusted the State with obligation to take all measures at its disposal to create the domestic and international order necessary for the exercise in full of the rights and liberties of the citizens of the Republic of Belarus. State bodies, officials and other persons who have been entrusted to exercise state functions shall take necessary measures to implement and safeguard the rights and liberties of the individual.

The Basic Law enshrines the right of citizens to housing. This right shall be safeguarded by the development of state, and private housing and assistance for citizens in the acquisition of housing. The State and local self-government shall grant housing free of charge or at available prices in accordance with the law to citizens who are in need of social protection (Article 48). According to Article 13 of the Housing Code (hereafter - HC) the right to obtain soft credits, subsidies and other forms of state support for building (reconstruction) or acquisition of living accommodation shall have able-bodied citizens of the Republic of Belarus of moderate means who are registered as those who are in need of improving living conditions, as well as citizens who are subject to Article 84 of HC (persons whose living accommodations have become unsuitable for living in as a result of natural disaster, technogen and social catastrophes; children-orphans and children who are without parents care; other).

The amount of subsidies and soft credits shall be fixed based on maximum norm of total housing floorspace of the living accommodation of social use. Citizens who are not subject to Article 84 of HC shall have the right to extraordinary granting of soft credits and subsidies. Housing legislation shall also envisage the right of disable citizens of moderate means who are registered as those need of improving living conditions to non-permanent granting of the living accommodation of social use (Article 12 of HC). The law-maker has authorized the Council of Ministers to determine conditions and procedure of referring citizens to the category of citizens of able-bodied moderate means for granting them soft credits, subsidies and other forms of state support while building (reconstructing) or acquiring living accommodation, as well as the amount of soft credits and subsidies (Article 13 of HC).

Decree of the President of the Republic of Belarus of 14 April 2000 No. 185 "On granting citizens soft credits for building (reconstruction) or acquisition of living accommodations" envisages allocation of soft credits through public joint-stock company "Savings bank "Belarusbank". In the opinion of the Constitutional Court delegation by law-maker to the Government of the specified right shall correspond to the competence of the Council of Ministers which is stipulated by the Constitution and the laws of the Republic of Belarus. Under Article 107 of the Basic Law the Government shall ensure execution of a uniform economic, financial, credit and monetary policy, and state policy in the field of social security and performance of other tasks. Articles 4 and 5 of the Law "On the Council of Ministers of the Republic of Belarus and subordinated to it state bodies" envisage that the Council of Ministers shall work out basic lines of housing policy, create conditions to maintain the level of social security established by the legislation of the Republic of Belarus, take measures on securing social protection of citizens, improve the system of social protection.

According to Article 17 of HC, which shall specify the competence of the Council of Ministers in the field of regulation of housing relations, the Council of Ministers is entrusted with securing execution of the republican budget in part of financing, subsidising and crediting housing building. Branch legislation, regulating pension and other legal relations, shall give definitions of persons who are considered to be able-bodied or disable (Article 35 of the Law "On pension security", Article 2 of the Law "On employment of population of the Republic of Belarus", Article 19 of the Law "On payments for land" and other). Disable citizens, in particular, are citizens of pension age and other persons. Considering a person to be disable one shall give him the right to use certain privileges and guarantees, for example, to draw survivor's pension. The Constitutional Court deems that the Council of Ministers shall hold to the uniform terminology specified in the legislation while using the notions "able-bodied citizen" and "disable citizen". However, for more full realization by citizens of the right to housing the Government, according to Article 13 of HC and to other laws, shall have the right to specify more wide circle of persons referring to the category of able-bodied citizens of moderate means and, therefore, they have the right to state support while building (reconstructing) and acquiring living accommodation.

Analysis of the Provision and the practice of its application manifests that the to the specified category of citizens the Government shall refer various social strata of the population. The provision shall cover both citizens of moderate means at able-bodied age and pensioners, invalids and other citizens who are in need of social protection for whom the state, in accordance with the legislation, has granted the possibility of feasible work in order to get over or to reduce vital difficulties. Based on that, point 1 of the Provision shall refer to able-bodied citizens of moderate means, who have the right to receive soft credits, subsidies and other forms of state support for building (reconstruction) or acquisition of living accommodation, those citizens who are registered and are in need of improvement of living conditions and who are able to carry out labour activities whose average monthly aggregate income per each member of the family does not exceed double average monthly average per head minimum consumer budget of the family of 4 persons calculated for 12 months previous the month of opening credit line (submitting documents for receiving subsidies), and who dispose of declared property the total cost of which shall not exceed: for receiving soft credit - double maximum amount of soft credit for the given family; for receiving subsidy - the cost of flat of standard-type consumers' qualities based on maximum norm of granting total dwelling space of social use for the given family.

Under point 8 of the Provision value appraisal of the declared property shall be carried out by citizens themselves at the prices effective on the day of opening credit line (submission of documents for receiving subsidy). At the same time, the cost of completed or non-completed building of an object shall be determined at the prices of 1991 based on regional index of changing the cost of construction and mounting work, cost of physical depreciation of an object on the day of appraisal and other conditions. Point 10 envisages that citizen shall bear responsibility for intentional concealment or distortion of information on aggregate income and property status. Article 47 of the Constitution shall guarantee citizens the right to social security in old age, in the event of illness, disability, loss of fitness for work and loss of a bread-winner and in other instances specified in law.

The State shall display particular concern for veterans of war and labour, as well as for those who lost their health in the defence of national and public interests. Preamble of the Law "On social protection of invalids in the Republic of Belarus" stipulates that each invalid who is not able to cover his necessities of life by his own shall have the right to guaranteed State assistance. State policy with respect to invalids shall have the purpose to take effectual measures on their social protection, on ensuring equality and participation in the life of society enjoying full rights. According to Article 37 of the Law "On prevention of disablement and rehabilitation of invalids" for stimulating and supporting equal participation of invalids in the life of society, in productive labour the State shall secure taking economic measures (loans, privileged taxation, preferential tariffs, duties, purpose subsidies, special funds etc.). According to the Law "On veterans" State policy as regards veterans shall be built on the principles of their social and legal protection, provision with dwelling and other.

Taken into account services of veterans the State shall guarantee them additional rights and privileges on the grounds of the Law in question and other legislative acts (Article 6). Provisions of the given laws shall specify responsibility of the State to render address social assistance to the pensioners, invalids and other citizens while building (reconstructing) acquiring dwelling included. In the opinion of the Constitutional Court entrusting by point 8 of the Provision citizens with no typical function of valuation of property personally owned shall be at variance with the Constitution and with other enforceable enactments of the Republic of Belarus. 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.

Analysis of the provisions of the enforceable enactments which shall specify conditions for valuation of property, - the Law "On economic insolvency (bankruptcy)", Decree of the President of the Republic of Belarus of 5 January 2001 No. 5 "On improvement of the work with the property distributed into public revenue", resolution of the Government of 12 February 1996 No. 92 "On approval of Provision on making examination of reliability of valuation of property contributing as an endowment to the authorized (capital) fund of a legal entity" - as well as other enforceable enactments shall signify that proper and reliable valuation of the cost of property may be carried out only by the specialist of special knowledge in that sphere of activities. For the realization of those aims the State, in particular, has charged authorized state bodies with making valuation of different types of property. Other persons (entities) may carry out evaluating activities in the Republic of Belarus by taking out relevant licence.

The Constitutional Court deems that valuation of the cost of the property the amount of which shall be one of the grounds for granting soft credits while building (reconstructing) or acquiring living accommodation should be made by the authorized competent bodies in order to fairly and objectively solve the issue on the right of citizens to receive soft credits granting by the State.

On the basis of the abovestated and guided by Article 40, part one of Article 116 of the Constitution, Articles 7, 11, 36, 38, 40, 40¹ of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court

RULED:

1. To find the Provision on referring citizens to the category able-bodied citizens of moderate means for receiving state support while building (reconstructing) or acquiring living accommodation approved by resolution of the Council of Ministers of the Republic of Belarus of 20 December 2000 No. 1955 in part of specification of the categories of citizens who shall have the right to receive soft credits, subsidies and other forms of state support to be in conformity with the Constitution, the Housing Code and other laws of the Republic of Belarus.

2. To propose the Council of Ministers to analyse execution of the Provision on referring citizens to the category able-bodied citizens of moderate means for receiving state support while building (reconstructing) or acquiring living accommodation approved by resolution of the Council of Ministers of the Republic of Belarus of 20 December 2000 No. 1955 with the purpose of unquestionable and proper repayment by the citizens of the received soft credit.

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

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

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich