27 October 1999 № D-89/99
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. Maraschino, judges T.S. Boiko, K.I. Kenik, V.V. Podgrusha, A.G. Tikovenko, R.I. Filipchik, G.B. Shabailov, V.Z. Shuklin, having studied on the ground of Article 40 of the Constitution of the Republic of Belarus the complaints of the citizens touching the issues of payment for public utilities including the move for a certain period of time to rural area as well as recalculation of pay for them, established the following.
Under part one of Article 21 of the Constitution of the Republic of Belarus safeguarding the rights and liberties of the citizens of the Republic of Belarus shall be the supreme goal of the State.
The State shall guarantee the citizens of the Republic of Belarus to move freely and choose their place of residence within the Republic of Belarus (Article 30 of the Constitution).
Place of residence shall be recognized populated area where a citizen lives permanently or mainly (Article 19 of the Civil Code of the Republic of Belarus).
According to point 1 of Article 210 of the Civil Code the owner shall enjoy the rights to possess, enjoy and dispose of one's assets. Article 2 of the Civil Code establishes that the parties of civil law relations shall obtain and exercise one's civil rights by one's will and in one's interests. Point 2 of Article 214 of the Civil Code envisages that the quantity and value of property owned by citizens shall not be limited with the exception of instances when those limits are specified in law in the interests of national security, public order, the protection of the morals and health of the population as well as the rights and liberties of other persons.
In accordance with part one of Article 101 of the Housing Code citizens and legal entities of non-government forms of ownership may have dwelling houses, flats and other living accommodation as property without limitations of their quantity and space.
Use of living accommodation is inseparably linked with consumption of public utilities by the persons who live therein. According to part two of Article 28 of the Housing Code public utilities fee (hot and cold water supply, sewerage, gas, electric and thermal energy, lifts, removal and neutralization of hard household waste, other services) shall be charged according to tariffs under which landlord pays those services unless otherwise specified in the legislation of the Republic of Belarus.
Resolution of the Council of Ministers of the Republic of Belarus of 25 of August 1999 No. 1332 "On regulation of payments of population for use of living accommodation and public utilities" envisages that pay for use (technical maintenance servicing) of living accommodation and public utilities shall be made under the contracts concluded by tenants (owners) of living accommodation with housing and operating organizations, and in the presence of individual devices for accounting water and gas consumption - under contracts with communal and gas supply organizations (point 1.5).
Legal regulation of those contracts is determined by the Civil Code and by other enforceable enactments. Effective legislation proceeds from the principle of pay only for the consumed public utilities. According to part four of Article 65 of the Housing Code pay for public utilities shall be charged based on the factual use of the given services in kind. Law of the Republic of Belarus "On drinking water supply" envisages obligation of the users of drinking water to pay timely also only for the used water in accordance with the fixed tariffs (Article 19).
Point 3 of the Provision of the procedure of recalculation of public utilities fee and suspension (renewal) of giving public utilities approved by order of the Ministry of Housing and Communal Economy of the Republic of Belarus of 21 February 1996 No. 22 has established that public utilities fee (hot and cold water supply, sewerage, gas, electric and thermal energy, lifts, removal and neutralization of hard household waste) in case of absence of devices of flat account of water and gas consumption shall not be collected if a citizen has moved out from the permanent place of living for a term of more than ten days in succession. In the given case there shall be made recalculation of public utilities fee.
In accordance with the Rules of use of living accommodation, keeping of dwelling house and houseside territory in the Republic of Belarus approved by Resolution of the Council of Ministers of the Republic of Belarus of 8 May 1986 No. 129 (with alterations and addenda made thereto by Resolution of 13 November 1995 No. 623) for recalculation of public utilities fee it is necessary to present document confirming temporary absence or to let living accommodation in case of move from it to representatives of housing and operating organization.
Approximate list of documents which may confirm temporary absence of citizens as well as the circle of bodies and officials who have the right (obliged) to issue them does not specified in the given Rules. There is also no regulation of the procedure of letting of living accommodation in case of move to representatives of housing and operating organizations. Based on the essence of relations analogy of law (as while reserving living accommodation) here is not absolutely acceptable. At the same time there are often in practice instances when citizens who have several living accommodation as property and (or) under the contract of tenancy, for example, in urban and rural area may not document their absence in one of the given living accommodation in connection with dwelling at that time in one of the others due to refusal of relevant bodies of issue of those certificates and, therefore, are compelled to pay for public utilities (hot and cold water supply, sewerage, gas, electric and thermal energy, lifts, removal and neutralization of hard household waste, other services) which they practically did not used. For example, these are instances of temporal living of citizens during spring-summery period of year in the territory of cottage co-operatives and gardening companionships who do not use their living accommodation in the permanent place of residence but who are obliged to make payment for relevant public utilities in full. Appeal against actions of officials in connection with refusal of issue necessary documents about the place and time of actual residing may not be considered to be optimal way out of the situation in question.
Moreover, individual citizens who have the right to privileges for public utilities fee may not use them due to impossibility to get necessary documents. Herewith, in the opinion of the Constitutional Court to the principle of equity will be the solution of the issue on the use of privileges on public utilities fee proportionally to the dwelling time in each of living accommodation.
There is also no regulation in full of the issue on civil legal responsibility of those citizens who may present for the recalculation of public utilities fee inadequate for reality information about one's temporal absence on the place of residence.
Based on the aforesaid and guided by Article 40 of the Constitution of the Republic of Belarus, 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 take additional measures on adjustment of legal regulation of the procedure and conditions of public utilities fee by the citizens who have several living accommodation, in particular, in urban and rural area, in instance of absence in one of them due to dwelling at that time in another living accommodation;
to solve the issue on the possibility of use privileges on pay of public utilities proportionally to the dwelling time in each of living accommodation;
to consider the issue on the possible strengthening civil legal responsibility of the citizens for presenting for recalculation of public utilities fee inadequate for reality information about one's temporal absence on the place of residence.
2. To publish the present Decision in accordance with effective legislation.
Presiding Officer —
Chairman of the
of the