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, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin, having studied on the grounds of Article 40 of the Constitution of the Republic of Belarus complaints of citizens - members of gardening associations - on disposal by them of plots of land which are privately owned, found the following.

     Relations concerning possession, enjoy, disposal and withdrawal of plots of land which are owned by citizens shall be regulated by the Civil Code of the Republic of Belarus, by the Land Code of the Republic of Belarus, by number of other enforceable enactments. Among them there are Type rules of gardening association approved by jointly resolution of the Government and Belarusian Council of Trade Unions of 30 January 1989 No. 55 (hereafter - Type rules).

     The procedure of granting of plots of land for keeping collective gardening shall be determined by the Land Code of the Republic of Belarus, in particular, it is envisaged that citizens who wish to get plots of land for keeping collective gardening shall submit an application to an executive and administrative body according to the place of residence or working place (to legal entity) which shall secure creation of gardening association in the procedure determined by the Council of Ministers of the Republic of Belarus. Article 76 of the Code specifies that land which is granting for keeping collective gardening are comprised of the land of common use and of the plots of land which are in life-long inherited possession or in private ownership of members of gardening association. There shall be given a state act for a plot of land granted in private ownership to a member of gardening association by region executive and administrative body which certifies the right of ownership to that plot of land.

     Thus member of gardening association shall have the right to get plot of land to private ownership and realize one's rights to plot of land in accordance with civil legislation. Under Article 262 of the Civil Code gardening plots may be granted by their owners to other persons on the right of long-life inherited, permanent use as well as fixed-date use, on lease included.

     Constitution of the Republic of Belarus envisages safeguarding the rights and liberties of the citizens of the Republic of Belarus as the supreme goal of the State (Article 21). Restriction of personal rights and liberties shall be permitted only in the instances specified in law, in the interest of national security, public order, the protection of morals and health of the population as well as rights and liberties of other persons (Article 23). The State shall guarantee everyone the right of property and shall contribute to its acquisition. A proprietor shall have the right to possess, enjoy and dispose of assets either individually or jointly with others. The inviolability of property and the right to inherit property shall be protected by law (Article 44).

     Effective Type rules of gardening association had been adopted during the period when legislation of the Republic of Belarus permitted no private ownership of land. According to Article 1 of Type rules plot of land for gardening association shall be given with no fixed term use for an enterprise, establishment, organization. Point 21 of Type rules envisages that a member of gardening association shall reserve the right to enjoy the allocated to him garden plot only in case of his absence in connection with sending him for work abroad, living for work in the regions of Furthest North, in the localities of the same status, as well as in other instances of temporary absence when his living accommodation are being reserved for in the established order. A person who has been recommended by the absent member of association may enjoy garden plot for the time of his absence by permission of the board of gardening association on condition of observance by that person of the requirements of the Rules of association.

     In connection with enforcing of new Civil Code of the Republic of Belarus, new Land Code of the Republic of Belarus and new Housing Code of the Republic of Belarus there have been emerged a number of issues concerning possession, enjoyment and disposal of plots of land which are in the property of citizens - members of gardening association. Complaints to the Constitutional Court contains issues on the procedure of lease of plots of land which are privately owned by members of gardening association, including the instances of their temporal living for beyond the boarders of the Republic of Belarus.

     The Constitutional Court emphasizes that land legislation does not regulate in full relations connected with realization by members of gardening associations of the competence of the owner to plots of land owned by them. In particular, there is no specification of the procedure of lease of the given plot of land for other persons, as well as of disposal of plots of land both while temporal living of a member of gardening association for beyond the boarders of the Republic of Belarus, as it is specified in Type rules, and in other instances.

     The Constitutional Court pays attention that in case of termination in accordance with effective legislation of membership in gardening association a person, dropped out of or expelled from the membership of gardening association, shall be obliged during one year to dispose of plot of land which is privately owned by him (Article 77 of the Land Code of the Republic of Belarus). At the same time the Code envisages no consequences for non-observance by member of gardening association of that requirement after expiry of the assign him one year term for disposal of plot of land. Article 53 of the Land Code of the Republic of Belarus enumerating instances which allow coercive withdrawal of plots of land which are in property of citizens, legal entities of the Republic of Belarus, which shall be carried out under decision of the court, does not determine retirement and expulsion from membership of gardening association.

     In that connection, in the opinion of the Constitutional Court, there is a necessity in improvement of the Land Code of the Republic of Belarus, as well as early adoption of new Type rules of gardening association based on effective civil and land legislation, that shall promote more full protection of the rights of gardening association who are owners of plots of land.

     Based on the aforestated and guided by Article 40 of the Constitution of the Republic of Belarus and Articles 7, 36 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court

RULED:

1. To propose the Council of Ministers of the Republic of Belarus to speed up adoption of new Type rules of gardening association 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 associations who are owners of plots of land.

2. The present Decision shall come into legal force from the day of its adoption.

3. 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