2 June 1999 № J-80/99
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, judges T.S. Boiko, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.I. Shabailov, G.B. Shishko, V.Z. Shuklin
with participation of:
a representative of the Council of the Republic of the National Assembly of the Republic of Belarus - V.V. Svetin,
representatives of the House of Representatives of the National Assembly of the Republic of Belarus - N.E. Kossiakov, N.N. Meshkova
has examined in open Court session the case "On the conformity between the Constitution of the Republic of Belarus and part two of Article 5 of the Law "On privatization of housing resources in the Republic of Belarus".
The Court session was attended by: E.M. Tsarenko - Deputy Chairman of the Supreme Court of the Republic of Belarus, A.P. Yegorov - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus, A.V. Ivanovski - Deputy Procurator-General of the Republic of Belarus; P.P. Miklashevich - First Deputy Minister of Justice of the Republic of Belarus.
The proceedings were brought of 30 April 1999 as a result of the constitutional motion of the Council of the Republic of Belarus on the grounds of Article 116 of the Constitution of the Republic of Belarus, Articles 5 and 6 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 43 of the Rules of Procedure of the Constitutional Court.
The subject to verification was part two of Article 5 of the Law of the Republic of Belarus of 16 April 1992 "On privatization of housing recourses in the Republic of Belarus" (Vedamastsi Vyarkhovnaga Saveta Respubliki Belarus, 1992, No. 15, art. 247; Vedamastsi Natsiyanalnaga Skhodu Respubliki Belarus, 1998, No. 20, art. 220), which envisage that a flat occupied by several tenants may be privatized simultaneously by all the tenants into commonly shared property.
Having heard Ms V.V. Podgrusha, Judge-speaker, representatives as litigants, expert - Mr V.F. Chigir, Doctor of Law, Professor, studied the materials of the case, analysed the provisions of the Constitution, the Law "On privatization of housing resources in the Republic of Belarus", other enforceable enactments, complaints of the citizens on the issues of privatization of dwelling facilities, the Constitutional Court has established the following.
Under Article 48 of the Constitution citizens of the Republic of Belarus shall be entitled to housing, and this right shall be safeguarded by the development of state, and private housing and assistance for citizens in the acquisition of housing. The State shall guarantee everyone the right of property and shall contribute to its acquisition (Article 44 of the Constitution). The privatization by the citizens of the occupied by them dwelling facilities is one of the most wide spreaded grounds of acquisition by the citizens of the right to living accommodation, the way of realization by them of the constitutional right to housing.
The Law "On privatization of housing resources in the Republic of Belarus", as it is mentioned in the preamble, is directed to the creation of the conditions for exercising the right of the citizens to free choice of the way of covering the needs in housing, as well as to securing effectual use and maintenance of the housing resources, that meets the aims of housing policy of the state.
In accordance with Article 2 of the Law on privatization of housing resources the main principles of privatization of housing shall be, in particular, free of charge tranfer to the citizens of the Republic of Belarus of state and public housing according to the procedure specified in the given Law; interconnection of privatization with solution of housing problem; voluntary basis; combination of paid and free of charge character; equal rights of all citizens of the Republic of Belarus to take part in privatization of housing resources.
The objects of privatization under Article 4 of the Law on privatization of housing resources shall be dwelling facilities in the houses of state and public housing resources (living houses and dwelling facilities which are owned by the state, collective farms and other co-operative organizations, their associations, trade unions and other social organizations).
Having analysed the provisions of Article 5 of the specified Law which determines the dwelling facilities which are subject to no privatization, as well as the peculiarities of privatization of certain types of dwelling facilities, the Constitutional Court considers that prohibitions and restrictions for privatization of dwelling facilities should be specified only by the circumstances which in principle shall exclude the possibility of transfer of dwelling facilities to private property or demand objectively the establishment of special procedure for their privatization.
Dwelling facilities in the flats occupied by several tenants, and separate apartments shall have on points of fact the same legal regime. The establishment of the property right to separate living premises inside the flat shall not change the purpose usage of both the living premises and the flat as a whole and, eventually, shall not influence on the legal regime of the public facilities (corridor, kitchen, lavatory cum bathroom etc.) since they remain in public usage. As applied to the dwelling facilities in the flats occupied by several tenants, there is an absence of the objective grounds for the establishment of differences in their privatisation, by way of allowance for simultaneous privatisation of the given flats into commonly shared property by all tenants included.
The rule which is contained in part two of Article 5 of the Law on privatisation of housing resources practically means legislative establishment of inequality of the rights of the citizens to privatisation depending on the conditions of their living, that is at variance with the provisions of Article 22 of the Constitution which proclaims the equality of all before the law and that all shall be entitled without any discrimination to equal protection of their rights and legitimate interests.
The State, by securing on the legislative level the right to privatization of the occupied dwelling facilities, shall oblige by force of the requirements of Articles 21 and 59 of the Constitution to ensure the possibility of realization of the right, guarantee the realization of the proclaimed in the Constitution principle that the individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State (Article 2).
The Law on privatization of housing resources has established that privatization of housing resources shall be carried out on paid, free of charge or mixed ground (Article 9). The citizens of the Republic of Belarus shall have the right to non-permanent receipt of housing quota. At the same time, they are given the possibility for privatization of living accommodation free of charge, if the amount of housing quota (sum of quota) is equal to the cost of the occupied living accommodation, to the quota (sum of quota) in the cost of redemption of living accommodation or possibility for usage of the remaining amount of housing quota in accordance with Article 16 of the Law in question, if the quota amount (sum of quota) has exceeded the cost of living accommodation.
The establishment of the dependency of the right of a tenant of living accommodation in the flat which is occupied by several tenants to its privatization on the consent of other tenants has led in practice to the exclusion of many tenants from the process of privatization despite the provisions of Articles 21, 22, 44 and 48 of the Constitution, the principles of privatization of living accommodation which are proclaimed in Article 2 of the Law on privatization of housing resources, to the restriction of the right of those tenants to privileged privatization of living accommodation in accordance with the specified Law.
The Constitutional Court may not agree to the submissions that the introduction of restriction for privatization of dwelling facilities in the flats occupied by several tenants shall protect the interests of those tenants who do not wish to privatize the occupied by them living premises. The Constitutional Court pays attention to the disproportion of the introduced restrictions, since the guaranteed by the Constitution and the laws the right of the citizens of the Republic of Belarus to privatization of the occupied by them dwelling facilities in the flats occupied by several tenants is geared to the subjective discretion of other tenants, their wish to privatize the flat into commonly shared property.
Article 23 of the Constitution shall permit the restriction of personal rights and liberties only in the instances specified in law, in the interest of national security, public order, the protection of the morals and health of the population as well as rights and liberties of other persons. At the same time the Constitutional Court deems that restriction of the rights and liberties of some persons by the interests of the protection of the rights and liberties of other persons may take place only when the protecting rights and interests are of more significant value. The lawmaker, while securing the guarantees of the rights and interests of persons, establishing their restrictions or determining any peculiarities of their protection, in the opinion of the Constitutional Court, must proceed from the estimation of the significance of one or another right in all the system of constitutional rights and liberties, keeping to such a balanced approach that the realization of any of the rights of the citizens involves no irreversible consequences and causing no significant damage other rights, especially those to which priority significance is attached. The given legal position was stated by the Constitutional Court in its Judgment of 25 March 1999 on the case "On interpretation of the Judgment of the Constitutional Court of the Republic of Belarus of 19 December 1994 "On the conformity between the Constitution and the note to Article 177 of the Criminal Code of the Republic of Belarus".
The Constitutional Court holds that the lawmaker, having established the rules of privatization of dwelling facilities in the flats occupied by several tenants, did not secured to the full extent the right of tenants, who wish to realize their right to privatization of the occupied by them dwelling facilities in those flats, in accordance with the provisions of the Constitution, its fundemental principles which concern the real safeguard of the proclaimed rights. The citizens who live in the flats occupied by several tenants shall have the right to privatization of the occupied by them dwelling facilities with the absence of the consent of other tenants as well.
In accordance with Article 11 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court emphasizes, that point 4 of the Provision on privatization of dwelling facilities in the houses of state and public housing resources, their service and repair approved by Resolution of the Council of Ministers of the Republic of Belarus of 30 June 1992 No. 398 (in wording of Resolution of the Council of Ministers of the Republic of Belarus of 5 August 1998 No. 1236 - Sbor decretov, ukazov Presidenta i pastanov Urada Respubliki Belarus (Collection of decrees, edicts of the President and resolutions of the Government of the Republic of Belarus), 1998, No. 22, art. 596), shall reproduce in full the norm of part two of Article 5 of the Law on privatization of housing resources with more precise definition that the flat may be privatized into commonly shared property simultaneously by all tenants (with their consent). The procedure of privatization of dwelling facilities in the flats occupied by several tenants shall be determined by point 28 of the Provision in question. The norm of part two of Article 5 of the Law on privatization of housing resources is also reproduced in paragraph two of point 2 of Resolution of the Plenum of the Supreme Court of the Republic of Belarus of 17 December 1998 No. 9 "On application by the courts of the Law of the Republic of Belarus "On privatization of housing resources in the Republic of Belarus".
Under Articles 137 and 142 of the Constitution of the Republic of Belarus the Basic Law shall have the supreme legal force. Where there is a discrepancy between a law and the Constitution, the Constitution shall apply. The laws, decrees and other acts which were applied in the territory of the Republic of Belarus prior to the entry into force of the present Constitution shall apply in the particular parts thereof that are not contrary to the Constitution.
Based on the aforestated 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 part two of Article 5 of the Law of the Republic of Belarus "On privatization of housing resources in the Republic of Belarus" to be at variance with the Constitution of the Republic of Belarus. To consider the given norm to be invalid from the date of adoption of the present Judgment.
2. The National Assembly of the Republic of Belarus, other state bodies to secure legal regulation of the issues which concern the possibility of privatization by certain tenants of the occupied by them dwelling facilities in the flats occupied by several tenants in accordance with the present Judgment.
3. To publish the present Judgment in ten days period from the date of its adoption in "Narodnaya gazeta" and "Zvyazda", as well as in "Vedamasty Natsiyanalnaga Skhodu Respubliki Belarus".
4. The present Judgment shall come into legal force from the day of its proclamation, is final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the