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, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, G.B. Shishko, V.Z. Shuklin, has examined on the grounds of Article 40, part one of Article 116 of the Constitution the motion of Minsk city executive committee on the issue of legal regulation of placement of outdoor advertising and pay for it, found the following.

Relations originating during the process of placement of outdoor advertising shall be regulated by Law “On advertising”, by Resolution of the Council of Ministers of the Republic of Belarus of 22 April 1999 No. 572 “On approval of Provision on procedure of placement of outdoor advertising” (hereafter — Provision) and by other acts of legislation.

According to Article 2 of the Law “On advertising” outdoor advertising shall be placards, stands, illuminated indicator boards and other technology of its stable placement in the definite area.

According to Article 11 of the given Law spreading of outdoor advertising shall be admissible under permit of the relevant local administration. Issue of permits for spreading outdoor advertising, with the requirements specified in part one of the given Article taken into account, shall envisage collection of pay in the procedure and at the rates fixed by relevant local administration. Placement of advertising in the territory of any objects, in the territory of historical and cultural, ritual and special protected natural complexes included, as well as determination of the rate and procedure of pay for spreading of that advertising shall be carried out under the agreement of an owner or a person who is authorized thereto by that owner (unless otherwise, as regards that person, specified in law or in agreement), as well as in the presence of decision envisaged by part two of the given Article.

Point 2 of Resolution of the Council of Ministers of the Republic of Belarus of 22 April 1999 No. 572 “On approval of Provision on procedure of placement of outdoor advertising” establishes that there shall be prohibited interference of republican state bodies, local executive and administrative bodies, as well as of other legal and natural persons in the content of advertising information placing as outdoor advertising, except for cases specified in Law “On advertising” in part of inadmissibility of spreading undue and other advertising which contain violations of legislation of the Republic of Belarus on advertising.

Minsk city executive committee has noted in its motion that inadmissibility of interference of local executive and administrative bodies in the content of advertising information placing as outdoor advertising shall be at variance with Article 120 of the Constitution, as well as with Article 11 of the Law “On advertising” envisaging placement of outdoor advertising only under permit of relevant local administration.

In the opinion of Minsk city executive committee requirements contained in the Constitution and in the Law shall also make it possible for local administrations to determine the content of advertising information while issuing (or refusing) an advertiser of permit to place outdoor advertising.

Having analyzed Laws “On local government and self-government in the Republic of Belarus”, “On status of the capital of the Republic of Belarus — city of Minsk” and other enforceable enactments determining the competence of republican and local bodies of state governing which shall, within their powers, resolve the issues of placement of outdoor advertising, the Constitutional Court came to the following conclusions.

1. Under Article 120 of the Constitution local councils of deputies and executive and administrative bodies, within the limits of their competence, resolve issues of local significance, proceeding of national interests and the interests of the people who reside in the relevant territory.

According to Article 5 of the Law “On local government and self-government in the Republic of Belarus” local government and self-government shall be exercised in accordance with the principle of self-sufficiency and independence of the Councils, other bodies of local self-government, within their powers, in resolving the issues of local life.

In pursuance of requirements of part one of Article 48 of the specified Law creation, placement, construction or reorganization of economic and social objects, use of natural resources in relevant territory, resolving other issues of economic, social and cultural activities affecting interests of population, shall be carried out with the consent of executive committee (local administration).

Peculiarities of powers of Minsk city Council of deputies, Minsk city executive committee shall be specified in the Law “On status of the capital of the Republic of Belarus — city of Minsk”. According to Article 2 of the given Law status of the city of Minsk as the capital of the Republic of Belarus shall stipulate specific character of creation of the objects of infrastructure of international importance, granting by the State of additional guarantees connected with performance by the city of Minsk of the functions of the capital of the Republic of Belarus.

Minsk city executive committee with a view to secure the specified functions equally with other functions shall work out and approve the projects of detailed plans, plans for regulation of building, town development, construction and maintenance norms and rules of the city of Minsk (Article 9 of the Law). Minsk city council for the same purposes shall approve the Statute of the city of Minsk where peculiarities of town development system, Rules of equipping with services and utilities and maintenance of the city of Minsk are also shall be specified (Article 10 of the Law).

Resolution of the Council of Ministers of the Republic of Belarus of 22 April 1999 No. 572 has restricted possibilities of influence of local executive and administrative bodies on the content of advertising information placing as outdoor advertising. In practice that has been reduced to the right of local executive and administrative body to refuse to place advertising, if advertiser has repeatedly placed before undue and other advertising which contained violations of legislation (point 28 of Provision).

Agreement of advertising information shall be carried out in accordance with point 3 of Provision with a territorial body of the Ministry of enterprise and investments.

In the opinion of the Constitutional Court, such an approach shall not duly take into account the provisions of the Constitution and laws which specify the powers of local administrations and local self-government and their responsibility for development of social infrastructure in the territory within their jurisdiction. Objects of outdoor advertising are active elements which shall form technical and aesthetic quality of habitat, shall affected psychology of the population, behaviour tendencies, mode of life, shall determine priority trends of economic development, development of local production of commodities and services included. The Constitutional Court considers that that shall stipulate the necessity of participation of local administrations and bodies of self-government in determination of advertising policy, content tendency of advertising information at the stage of its agreement by territorial body of the Ministry of enterprise and investments.

2. Article 11 of the Law “On advertising”, as well as point 6 of the Provision shall not exclude the possibility of installation of hardware of outdoor advertising on the surface of buildings, constructions (house-top, facade, fronts) which are of historical and cultural value, as well as in the territory of zones of protection, of regulating building, of conservation of natural environs or of protection of cultural level. The provision in question envisages that installation of outdoor advertising should be agreed with relevant body of architectural and town-planning activities of local executive and administrative body, as well as with the body which shall have the given property in day-to-day operation, whereas according to the Law “On protection of historical and cultural heritage” solution of those issues shall be the competence of the Committee on protection of historical and cultural heritage under the Ministry of culture of the Republic of Belarus (Articles 8 and 70).

Since point 13 of the Provision shall not permit other agreements connected with placement of outdoor advertising, placement of outdoor advertising on the surface of buildings, constructions (house-top, facade, fronts) which are of historical and cultural heritage, or in zones of their protection, in other zones with special regime of their protection and use shall be practically carried out without agreement of specially authorized body (local committees of architectural and town-planning activities shall not be bodies in question). That is violation of requirements of the Law “On protection of historical and cultural heritage” (Articles 8, 50, 51 and 70).

Due to the abovementioned, the Constitutional Court deems that issues of agreement of placement of outdoor advertising on material historical and cultural values (fronts, house-top, facade, buildings, constructions) or in zones of their protection should be solved in the Provision in strict compliance with requirements of the Law “On protection of historical and cultural heritage”.

3. According to part three of Article 11 of the Law “On advertising” there shall be pay for issue of permits for spreading outdoor advertising. That pay shall be collected in the procedure and at the rates fixed by relevant body of local administration.

Part four of Article 11 of the given Law shall also envisage the possibility of collection of pay for spreading outdoor advertising. Specification of the rate of that pay, as well as the procedure of making it shall be carried out on the ground of the contract with the owner or with other person authorized by him thereto. At the same time, as for the objects of communal ownership, executive or administrative body, which is empowered to dispose of communal ownership within its competence, shall act on behalf of the owner (point 5 of Article 9 of the Law “On local government and self-government in the Republic of Belarus”).

Consequently, if one is based on the requirements of the Law “On advertising”, then it is necessary to differentiate of pay for permits to place outdoor advertising and pay for use of space for placement of advertising.

In that connection alteration of the procedure of making pay for spreading outdoor advertising, in spite of well-grounded proposals of Minsk city executive committee, shall be possible on the legislative level only.

Based on the aforestated and guided by Article 40, part one of Article 116 of the Constitution, by Articles 7, 36, 38, 40 and 40¹ of the Law “On the Constitutional Court of the Republic of Belarus” the Constitutional Court 

RULED: 

1. To note, that provisions of Laws “On status of the capital of the Republic of Belarus — city of Minsk”, “On local government and self-government in the Republic of Belarus”, shall have direct character of their effect and shall have priority as regards by-laws in part of specification of the powers of Minsk city executive committee and its responsibility for development of social infrastructure in the territory of the city of Minsk, solution of the issues concerning outdoor advertising included.

2. To propose the Council of Ministers of the Republic of Belarus:

to make into Resolution of the Council of Ministers of the Republic of Belarus of 22 April 1999 No. 572 “On approval of Provision on procedure of placement of outdoor advertising” alterations and addenda directed to securing under the laws of proper participation of local executive and administrative bodies, in particular, of Minsk city executive committee, while adjusting advertising information;

to solve the issue concerning placement of outdoor advertising on the objects which are of historical and cultural value and in zones of their protection in accordance with the Law “On protection of historical and cultural heritage” by making relevant alterations and addenda into the given Provision;

to examine the proposal of Minsk city executive committee concerning collection of pay for placement of outdoor advertising taken into account that habitat (in particular, city space), which is forming by the complex of components and which is an object of common use of the population, shall be commercial value while choosing site and method for placing outdoor advertising with the purpose of possible submission to the National Assembly of the Republic of Belarus draft law on relevant alterations and additions into the Law “On advertising” oriented towards the considerations of the interests not only of the owners of the sites of placement of advertising, but also interests of the city of Minsk as a whole in the development of infrastructure which meet the status of the capital.

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

4. The present Decision shall be subject to publication in accordance with legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich