23 July 1999 № J-86/99
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 and judges T.S. Boiko, K.I. Kenik, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.I. Shabailov, G.B. Shishko, V.Z. Shuklin
with the participation of representatives as a litigant: the House of Representatives of the National Assembly of the Republic of Belarus: - V.M. Alexandrov, T.N. Glindzich;
Minsk urban executive committee - I.I. Diukova, A.N. Sidorienya, I.A. Vanitski;
has considered in open Court session the case "On the conformity of the Provision on the methods and conditions of towing, storage and realization of vehicles which obstruct interyard territory, impede of cleaning streets and roads, adopted by decision of Minsk urban executive committee of 28 December 1995 No. 783, and point 7.3 of decision of Minsk urban executive committee of 9 December 1998 No. 1330 "On the methods of parking of vehicles, maintaining of the roadway net and interyard territory" to the Constitution and the laws of the Republic of Belarus".
At the Court session were present: E.A. Smirnov - Deputy Chairman of the Supreme Court of the Republic of Belarus; A.V. Ivanovski - Deputy Procurator-General of the Republic of Belarus; V.G. Golovanov - Deputy Minister of Justice of the Republic of Belarus.
The proceedings were instituted by the Constitutional Court on 7 June 1999 according to the motion filled by the House of Representatives of the National Assembly of the Republic of Belarus under Article 116 of the Constitution, Articles 5 and 6 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 43 of the Regulations of the Constitutional Court.
The subjects of examination were Provision on the methods and conditions of towing, storage and realization of vehicles which obstruct interyard territory, impede of cleaning streets and roads, adopted by decision of Minsk urban executive committee of 28 December 1995 No. 783 (hereafter - Provision), and point 7.3 of decision of Minsk urban executive committee of 9 December 1998 No. 1330 "On the methods of parking of vehicles, maintaining of the roadway net and interyard territory".
In its proposition the House of Representatives of the National Assembly of the Republic of Belarus has raised the issue on the review of the constitutionality of the Provision and point 7.3 of decision of 9 December 1998 No. 1330, which envisage coercive tow of vehicles, pointing out that it contradicts the Constitution and does not comply with the Administrative Code of the Republic of Belarus and the Law "On local government and self-government in the Republic of Belarus".
Having heard A.V. Maryskin, judge-speaker, representatives as litigants, analyzed the relevant Articles of the Constitution, Administrative Code of the Republic of Belarus (hereafter - AC), the Law "On local government and self-government in the Republic of Belarus", other enforceable enactments of the Republic of Belarus, studied the complaints of the citizens to the Constitutional Court, as well as decisions of local executive and regulatory authorities dealing with the issues of coercive tow of vehicles, other materials of the case the Constitutional Court held the following.
Point 1 of the Provision envisages, in particular, coercive tow on the penalty parkings of State Automobile Inspection (SAI) of vehicles, which were left by their owners: on the storage on the carriageway of streets and roads, if it impedes for their cleaning (sub-item 1.1.1); within the coverage of street signs, which prohibit stop and parking, if it limits road and street capacity, impede the movement of special automobiles (sub-item 1.1.2); within the limits of green space and plantations, which ruin the herbage and violate the rules of accomplishing and maintaining of the city (sub-item 1.1.3); in the night time in the yards of the apartment units and housings, and also in other places which are not covered by the existing order of registration of vehicles, except for individual owners (sub-item 1.1.4); on the interyard territories within the coverage of street signs, which limit the movement of vehicles (sub-item 1.1.5). Abovementioned Provision covers also different cases of the coercive tow of vehicles, as well as the methods and rate of payment connected with such a tow.
According to the point 7.3 of decision of Minsk urban executive committee of 9 December 1998 No. 1330 the Department of State Automobile Inspection of State Department of Internal Affairs of Minsk urban executive committee, Oblast State Automobile Inspection Regional Department - Regional Bureau of Internal Affairs are permitted for coercive tow of vehicles which impede the passage to the penalty parkings is permitted in the exceptional cases, if it is no possibility for passage of special transport, including on the interyard territories.
In accordance with the Constitution the individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State (Article 2). Safeguarding the rights and liberties of the citizens of the Republic of Belarus shall be the supreme goal of the State (Article 21) which shall 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 (Article 59). Restriction of personal rights and liberties shall be permitted only in the instances specified in law, in the interests 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).
Article 1131 of AC establishes the administrative liability for the contumacy of the driver of vehicles to the signals of regulating the road traffic, for the violation of the requirements of street signs, traffic lane markings, for the breach of the rules of transportation of people and other rules of the road traffic, in its turn Article 1191 of AC - administrative liability, in particular, for the breach of the drivers of the rules of stop and parking of vehicles.
Joint order of road traffic, including the rules of parking, in the territory of the Republic of Belarus, for the breach of which administrative liability is established in AC, shall be regulated in the Rules of the road traffic adopted by resolution of the Council of Ministers of the Republic of Belarus of 21 March 1996 No. 203. Here in the opinion of the Constitutional Court the rules of parking of vehicles which leads to the adopting by the local executive and regulatory authorities decisions which establishes the rules in question are not settled in detail enough.
The practice shows that not only Minsk urban executive committee, but also some other local executive and regulatory authorities adopted decisions establishing the rules of parking and envisaging for such violations coercive tow of vehicles, besides grounds and conditions of coercive tow differ vastly. In the Constitutional Court opinion the rules of parking of vehicles and liability for their violation must be unified.
Acting AC does not contain coercive tow of vehicles on the penalty parkings of State Automobile Inspection (SAI) as the measure of the administrative duress. The Constitutional Court considers that the establishment and executing such measure of duress character must be based on the law with clear definition of the legal nature, basis, conditions, method and legal consequences of its execution, which will guarantee both securing safe traffic movement and protection of the rights and legal interests of the owners of vehicles. While executing coercive tow of vehicles their owners shall be guaranteed the right to get immediate information about the location of the vehicle.
The Constitutional Court draws attention to the necessity of solution by the local executive and regulatory authorities the issues connected to the maximum possible satisfaction of the needs of the owners of the vehicles both in the guarded and non-guarded parkings which will serve the decrease of the quantity of violations dealing with the storage and parking of vehicles.
The Constitutional Court notes that in accordance with the Law "On state guard" (Articles 6, 14) it is envisaged the right of the bodies of state guard to exercise while executing their powers measures for the tow of vehicles. Those measures are established for the safeguard of the highest officials of the state, heads of the foreign states and governments during their visits on the territory of the Republic of Belarus, other persons defined in the established order.
Study of the foreign experience has showed that in the number of states for the purpose of safe movement, protection of the rights and guarding by the law interests of other persons the coercive tow of vehicles is allowed, if they were left in the places were parking is not allowed or they impede for movement or menace its safety. However its implementation is based on the law.
The Constitutional Court considers that in its decision Minsk urban executive committee by establishing non-envisaged in the law measure of the administrative duress has exceeded its competence. Administrative Code, the Law "On local government and self-government in the Republic of Belarus", other laws give local executive and regulatory authorities no right to establish such measures of administrative duress.
Provision and point 7.3 of the decision of the Minsk urban executive committee of 9 December 1998 which envisages coercive tow of vehicles, limits also the right of the owner to possess use and disposal of the estate on its own will. Such limitations in accordance with Articles 23, 44 of the Constitution are allowed only in cases specified in law.
The analysis of the grounds of the coercive tow of vehicles on the penalty parkings of State Automobile Inspection, which are envisaged by the Provision in question shows that those of them which are envisaged in sub-items 1.1.1, 1.1.3, 1.1.4 of the Provision do not connected directly with the securing of the safe movement and solution of the raised in such cases disputes between the owners of the vehicles and appropriate structures of local executive and regulatory authorities may be exercised with the help of other measures which do not lead to the coercive tow of vehicles. At the same time the Constitutional Court notes that the necessity of coercive tow of vehicles could be caused, in particular, by the goals of securing of safety of movement, passing of special transport (fire trucks, ambulance cars etc.) for taking urgent measures on protecting the rights and freedoms of other persons.
Taking into account the possibility of drafting and adopting by the state bodies in accordance with their competence enforceable enactments and with the object of excluding gaps in the legal regulation, the Constitutional Court guiding by Article 9 of the Law "On the Constitutional Court of the Republic of Belarus" considers it necessary to define the term during which separate norms of the Provision and point 7.3 of the decision of 9 December 1998 will keep their powers until the adoption in the determined by the Constitutional Court term measures which will secure bringing of the specified acts in accordance with the present Judgment.
Based on the aforesaid and guided by Article 116 of the Constitution, Articles 5, 6, 9, 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To find the Provision on the methods and conditions of towing, storage and realization of vehicles which obstruct interyard territory, impede for cleaning streets and roads, adopted by decision of Minsk urban executive committee of 28 December 1995 No. 783, and point 7.3 of decision of Minsk urban executive committee of 9 December 1998 No. 1330 "On the methods of parking of vehicles, maintaining of the roadway net and interyard territory" to be at variance with the Constitution and the laws of the Republic of Belarus.
To consider the Provision to be invalid from the day of adoption of the present Judgment with exception of sub-items 1.1.2, 1.1.5 of point 1 and norms of the Provision in part where they secure the order of realization of mentioned in sub-items 1.1.2, 1.1.5 grounds for the coercive tow of vehicles, which equally with point 7.3 of the decision of 9 December 1998 will lose its legal power since 30 November 1999.
2. For Minsk urban executive committee as well as for other local executive and regulatory authorities to bring their decisions into line with the present Judgment.
3. To propose the National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus to regulate the issues connected with the present Judgment.
4. To publish the present Judgment in terms defined by legislation in "Narodnaya gazeta" and "Zvyazda", as well as in those publications where the decisions of other local executive and regulatory authorities on the coercive tow of vehicles have been published.
5. The present Judgment shall come into force from the day of its proclamation, shall be final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the