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 K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.Z. Shuklin, has examined on the grounds of Article 40, part one of Article 116 and part four of Article 122 of the Constitution the complaints of the Council of Association of gardening partnerships (co-operatives) “Garden” of Minsk oblast, certain gardening partnerships concerning legal regulation of organization and activities of gardening partnerships, as well as their state registration and re-registration, found the following.

The complaints have specified that certain executive committees had recommended gardening partnerships to carry out reorganization in form of transformation of gardening partnerships into consumers’ co-operatives with making reference to the requirements of Decree of the President of the Republic of Belarus of 16 March 1999 No. 11 “On regulation of state registration and liquidation (termination of activities) of economic entities” (with alterations and addenda made thereto by Decree of 16 November 2000 No. 22) under which non-commercial organizations are obliged till 1 July 2001 to bring their constituent documents in accordance with that Decree, with the Civil Code of the Republic of Belarus and with other legislation.

Applicants have noted that: 1) there is no necessary legal ground for transformation of gardening partnerships into consumers’ co-operatives, since that transformation shall not follow from the Civil Code and from Decree of the President of the Republic of Belarus of 16 March 1999 No. 11, and non-commercial organizations may exist in other forms which are not specified directly in the Civil Code; 2) even if that transformation will be carried out, there should be no pay for it; 3) functioning of gardening partnerships in many respects is aggravated by imperfection and contradictoriness of effective legislation on gardening partnerships.

Gardening partnerships, formed before official publication of new Civil Code of the Republic of Belarus, shall act on the basis of the statutes of gardening partnerships adopted in accordance with Type statute of gardening partnership (hereafter — Type statute) approved by resolution of the Council of Ministers of BSSR and Belarusian Council of Trade Unions of 30 January 1989 No. 55 (with alterations made by resolution of the Council of Ministers of the Republic of Belarus of 13 July 1992 No. 428). Those statutes have been adopted by general meetings of the members of partnerships, have been agreed with enterprises under which partnerships were organized, as well as registered by region, city executive committees according to the location of a partnership.

According to Type statute gardening partnership shall acquire the rights of a legal entity from the moment of registration of its statute.

Members of a gardening partnership in the plots of land allotted thereto shall build gardening houses and other structures, shall make necessary plantings, carry out agricultural and technical measures etc. Gardening houses, housekeeping buildings in gardening area, fruit and berry plantings shall be owned primordially by the members of partnerships.

Members of a gardening partnership shall pay entrance, membership and purpose fees, their rates and procedure of payment shall be determined by general meeting of a partnership.

Entrance fees paid by members of gardening memberships shall be spent, in accordance with point 39 of Type statute, while solving organizing issues of a partnership, and membership and purpose fees — in accordance with credit and debit calculations of a partnership, in particular, for development (planing) of territories, erection of housekeeping structures and constructions in general use, for water supply, electrification, road building, building of bridges and fencing the territory of a partnership etc.

A person, who has dropped out (expelled from) the members of a gardening partnership, shall be returned purpose fees paid in the fund of a partnership for erection of housekeeping structures and constructions in general use (minus depreciation), for water supply, electrification, road building, building of bridges and fencing the territory of a partnership, for carrying out development measures of an area. Entrance and membership fees paid for maintenance of workers and employees, for cultural measures, fees for repair of common use housekeeping structures and constructions, as well as payments for use of water, electric energy and motor transport shall not be returned to the specified person.

A person, who has been accepted to be a member of a gardening partnership in place of the person dropped out (expelled from) the members of a partnership, shall be obliged to pay entrance fee, as well as sums of purpose fees liable to be paid by the person dropped out (expelled from) a partnership (with depreciation of structures and constructions taken into account), cost of gardening house and of other structures and constructions, fruit and berry plantings, as well as to pay other outlays on the development of the plot of land.

Having analyzed the norms of the civil and land legislation which refer to the issues of organization and activities of gardening partnerships, the rights and obligations of their members, Type statute of a gardening partnership, law applying practice, the Constitutional Court come to the following conclusions.

New Civil Code contains separate chapter as for legal entities (Articles 44 — 123). Peculiarities of various types of legal entities, their legal status shall depend on what kind of rights their founders (participants) do have with regard to a legal entity, as well as in what kind of organizational legal forms they have been created (Article 44 and 46 of the Civil Code).

Gardening partnerships, in their legal nature, type and aims of activities, are non-commercial organizations, since they have no aim to make profit. Gardening non-commercial partnerships may deal with entrepreneur activities so far as it serves to achieve the aims they created for and as it is in conformity to those aims.

According to paragraph one of point 3 of Article 46 of the Civil Code legal entities which are non-commercial organizations may be created both in the form of consumers’ co-operatives, social and religious organizations (associations) financed by the owner of establishments, charitable and other funds, and in other forms specified in legislation.

Having studied legal nature of non-commercial organizations with the provisions of Articles 46 and 116—123 of the Civil Code taken into account, the Constitutional Court deems that notwithstanding certain similarity in legal regulation of some issues of organization and activities of gardening partnerships and consumers’ co-operatives, gardening partnerships may act as independent organizational legal form of non-commercial organizations, existence of that form is admissible under the Civil Code (Article 46) and under Land Code (Articles 75—77 etc.).

Legal status of effective gardening partnerships and status of consumers’ co-operatives, which is specified in accordance with the Civil Code, shall have definite distinctions as following:

1) means of a gardening partnership shall be formed of entrance, membership and purpose fees of a partnership and of other receipts in accordance with effective legislation (point 39 of Type statute), whereas the means of a gardening co-operative shall be formed of entrance, membership fees and of shares, as well as of other receipts;

2) gardening non-commercial partnership shall be responsible under its obligations by all the property owned thereby. A partnership shall not be responsible under the obligations of its members, even if they are drawn in the keeping of collective gardening, and its members — shall not be responsible under the obligations of a partnership (point 14 of Type statute). Gardening consumers’ co-operative shall be also responsible under its obligations by all the property owned thereby. Co-operative shall not be responsible under obligations of its members, even if they are drawn in the keeping of collective gardening, and its members — shall not be responsible under the obligations of a co-operative with the exception of instances specified in legislation. That shall concern the obligation of the members of a co-operative to compensate the losses by way of additional fees during three months after approval of yearly balance. In case of nonfulfilment of obligations co-operative may be liquidated judicially on request of creditors. Members of consumers’ co-operative shall bear subsidizing responsibility under obligations of co-operative to the extent of unpaid part of additional fee of each member of co-operative (point 4 of Article 116 of the Civil Code).

3) the name of consumers’ co-operative should contain specification of the basic aim of its activities, as well as the word “co-operative” (point 3 of Article 116 of the Civil Code).

The Constitutional Court also emphasizes that the Civil Code, having envisaged in Article 46 the possibility to create non-commercial organizations in other forms except for those stipulated in the given Article, Article 1088 which determines peculiarities of succesion of a part (share) of a contributor of a commandite (limited) partnership, partner (shareholder) of a household company and a member of consumers’ co-operative, specified only country-cottage and gardening consumers’ co-operatives. The comparison of the Articles in question shall give the grounds to make the conclusion on certain imperfection in that part of the wording of Article 1088 of the Civil Code. Since it is admissible the existence of non-commercial organizations, including in the sphere of collective gardening and horticulture, in other organizational legal forms (except for consumers’ co-operatives), as it follows from the content of point 3 of Article 46 of the Civil Code, then Article 1088 of the Civil Code shall that specification should not be ended in country-cottage and gardening co-operatives. Moreover, the Land Code, adopted after the Civil Code (of 4 January 1999 and of 7 December 1998 respectively) gardening partnerships are determined as one of the subjects of land relations (Articles 75 — 77).

In the opinion of the Constitutional Court land legislation, in the given case, is not at variance with the provisions of Article 46 of the Civil Code. While determining legal regulation of land relations with participation of gardening partnerships, the lawmaker has stipulated thereby one of the possible forms of non-commercial organizations which are not specified in Article 46 of the Civil Code but which are permissible under that Article. The right to choose organizational legal form shall be the right of gardening partnerships, unless otherwise is specified in legislation.

At the same time the Constitutional Court notes that Type statute is not in conformity with new civil and land legislation. Thus point 1 of Type statute envisages that a plot of land allotted for a gardening partnership shall be granted for permanent use of an enterprise, establishment, organization, from among the workers of which gardening partnership has been formed. According to Article 75 of the Land Code of the Republic of Belarus citizens, who wish to get a plot of land for collective gardening housekeeping, shall submit an application to executive and administrative body in accordance with the place of residence or the working place (legal entity) which shall secure for creation of a gardening partnership under the procedure determined by the Council of Ministers of the Republic of Belarus. According to Article 76 of the Land Code the land allotted for collective gardening housekeeping shall be the land of common use and the plots of land which are in life long inheritable possession or in private ownership of members of a gardening partnership. Redemption by a member of a gardening partnership of the plot of land into the property shall not be the ground for termination of the membership in a gardening membership (part one of Article 77 of the Land Code).

Many other norms of the Type statute, which shall refer to the issues of organization of gardening partnerships, adoption and registration of statutes, the rights and obligations of the members of gardening partnerships, the grounds for elimination from a partnership etc., are also subject to revision.

The Constitutional Court in its Decision of 26 April 2000 “On the necessity to improve land legislation concerning the rights of members of gardening partnerships who are owners of plots of land” has proposed the Council of Ministers of the Republic of Belarus to speed up adoption of new Type statute of a gardening partnership based on civil and land legislation, and, in case of necessity, to make competent bodies of state power proposals envisaging more full legislative protection of the rights of the members of gardening partnerships who are owners of the plots of land. However, new Type statute has not been adopted until now, that causes in practice additional problems in activities of gardening partnerships.

In the opinion of the Constitutional Court, the issues concerning activities of gardening partnerships may be also solved by way of preparation of draft law on non-commercial associations of citizens in the sphere of collective gardening and horticulture which shall specify legal nature and status of those associations, their peculiarities and differences. In addition, there may be used approaches of Russian legislation which shall enshrine the right of citizens to create gardening, horticulture or country-cottage non-commercial associations, gardening, horticulture or country-cottage consumers’ co-operatives or gardening, horticulture or country cottage non-commercial co-partnerships (point 1 of Article 4 of the Law of Russian Federation of 15 April 1998 “On gardening, horticulture or country-cottage non-commercial associations of citizens”).

After adoption of new Civil Code of the Republic of Belarus legal entities, which have been existed in organizational legal forms under the Code, had been obliged in pursuance of Article 1141 of the Civil Code to make alterations in their statutes in order to bring them into line with the norms of the Code. At the same time, on the legislative level there have been specified the rule that legal entities, which have been bound to bring their constituent documents into line with the Code, shall have exemption from pay of registration fee while registrating those alterations.

Point 17 of the 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 wording of Decree of 16 November 2000 No. 22) shall stipulate that there is no pay for state registration of alterations and addenda into constituent documents of commercial and non-commercial organizations in case of amendment of legislation under which alterations or addenda into constituent documents are required.

In that connection the Constitutional Court deems that, while making registration of alterations and addenda into the statutes of gardening partnerships with a view to bring them into line with new civil and land legislation (without reorganization into gardening co-operatives), there shall be no pay for state registration.

Based on the aforestated and guided by Article 40, part one of Article 116 and part four of Article 112 of the Constitution, by 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 the existence of gardening partnerships as independent organizational and legal form of non-commercial organizations to be in conformity with the norms of the Civil Code of the Republic of Belarus. Equally with that there is no exclusion of the right of gardening partnerships to be reorganized into gardening co-operatives.

2. Gardening partnerships shall be obliged to make into their statutes alterations and addenda following from new civil and land legislation. At the same time, one shall bear in mind that collection of pay for registration of alterations and addenda into their constituent documents due to amendment of legislation under which alterations or addenda into constituent documents are required (if gardening partnerships are not be reorganized into gardening co-operatives) shall have no legal ground.

3. To propose the Council of Ministers of the Republic of Belarus in accordance with the requirements of the Civil Code of the Republic of Belarus and the Land Code of the Republic of Belarus (Article 75) to secure within its competence proper regulation of the issues and, in case of necessity, to make relevant bodies of state power proposals envisaging more full legislative protection of the rights of members of gardening partnerships.

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

5. 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