25 March 1997 № D-55/97
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, G.A.Vorobei, K.I.Kenik, V.V.Podgrusha, A.A.Sarkisova, A.G.Tikovenko, R.I.Filipchik, V.I.Shabailov, G.B.Shishko,
participated by the representatives of: the House of Representatives of the National Assembly of the Republic of Belarus A.V.Matusevich - Director of the Belarusian Institute of State Building and Legislation;
the Council of the Republic of the National Assembly of the Republic of Belarus S.A.Sviridova - Deputy Head of Legal and Expert Administration of the Secretariat of the Council of the Republic;
the Council of Ministers of the Republic of Belarus: V.G.Golovanov - Deputy Minister of Justice and G.G.Dobrovolsky - Deputy Minister of Housing and Communal Services;
expert V.F.Chigir - Professor of the Chair of the civil law of the Belarusian State University, Doctor of Legal Sciences
has considered in open session the issue on giving interpretation of Judgment of the Constitutional Court of the Republic of Belarus of 27 June 1996 "On Constitutionality and Legality of the Supreme Council Resolution of 11 June 1993 "On the Order of Purchase and Sale of Flats (Houses) in the Republic of Belarus" and Temporary Regulation on the Order of Purchase and Sale of Flats (Houses), passed by Resolution of the Council of Ministers No. 589 of 31 August 1993.
The session of the Court was participated by: Deputy Chairman of the Supreme Court - V.N.Ptashnik; Deputy Chairman of the Supreme Economic Court - A.I.Kiselov; Deputy Procurator-General - A.V.Ivanovsky.
In its Judgment of 27 June 1996 the Constitutional Court found point 1 of the Supreme Council Resolution of 11 June 1993 "On the Order of Purchase and Sale of Flats (Houses) in the Republic of Belarus" and points 7, 8 and 16 of Temporary Regulation on the Order of Purchase and Sale of Flats (Houses), passed by Resolution of the Council of Ministers No. 589 of 31 August 1993 to be unconstitutional and invalid in part envisaging that:
only resident of the Republic of Belarus have the right to purchase flats;
the flats could be sold only to residents of the locality;
in case of sale of flats at an auction in the city of Minsk,
the purchasers could be only residents of the Republic of Belarus.
The Supreme Council of the thirteenth convocation and the Council of Ministers did not brought the normative acts, which become the subject to the Constitutional Court review, into line with the Court Judgment.
The Ministry of Justice of the Republic of Belarus appealed to the Constitutional Court for the interpretation of the Judgment, whereas its uncertain understanding makes certain difficulties in the enforcement practice.
Having listened to the representatives of the Houses of the National Assembly, the Council of Ministers, expert, having studied the materials of the case as well as the issues emerging in practical enforcement of the above-said normative acts the Constitutional Court came to a conclusion of the necessity to interpret the Court Judgment of 27 June 1996.
Abiding by Article 41 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 78 of the Rules of the Constitutional Court, the Court
EXPOUNDS:
Recognizing unconstitutionality of certain norms, contained in the Supreme Council Resolution and in Temporary Regulation on the Order of Purchase and Sale of Flats (Houses), restricting the right of the citizens to purchase flats (houses), the Court has meant the following.
Under Article 10 of the Constitution a citizen of the Republic of Belarus shall be guaranteed the protection and patronage of the State both in the territory of Belarus and beyond.
Under Article 30 of the Constitution citizens of the Republic of Belarus shall have the right to move freely and choose their place of residence within the Republic of Belarus, to leave it and return to it without hindrance.
Article 44 of the Constitution stipulates that 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 on jointly with others. The exercise of the right of property shall not be contrary to social benefit and security, or be harmful to the environment or historical and cultural treasures, or infringe upon the rights and legally protected interests of others.
Article 6 of the Law "On Property in the Republic of Belarus" points out that an owner of property possesses, makes use and disposes of property belonging to him or her at his or her discretion and has the rights to make any transaction affecting this property which is not prohibited by law.
Article 23 of the Constitution permits 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 morals and health of the population as well as rights and liberties of other persons.
The Court considers that a citizen of the Republic of Belarus, who has no right to sell or purchase freely his or her flat (house) in other locality, is to a certain extent restricted by the right to move freely and choose his or her place of residence within the Republic, to leave it and to return to it without hindrance.
In view of the aforementioned the Court considers that citizens of the Republic of Belarus including the residents beyond its borders, have the right to purchase flats (houses) under the contract of purchase and sale in any localities of the Republic of Belarus irrespective of the place of residence. At the same time the Court notes that the peculiarities of purchase and sale of flats (houses), in the city of Minsk may be determined by the law, whereas under the Constitution the city of Minsk as the capital of the Republic of Belarus has a special status.
Under Article 11 of the Constitution foreign nationals and stateless persons in the territory of Belarus shall enjoy rights and liberties and execute duties on equal terms with the citizens of the Republic of Belarus, unless otherwise specified in the Constitution, the laws and international treaties.
Article 12 of the Law "On Legal Status of Foreign Nationals and Stateless Persons in the Republic of Belarus" provided that foreign nationals and stateless persons who reside in the Republic of Belarus and are legally engaged in labour and economic activities have all the same social and economic rights which all the citizens of the Republic of Belarus enjoy.
Under Articles 557, 558 of the Civil Code of the Republic of Belarus foreign nationals and stateless persons enjoy the legal capacity in the Republic of Belarus on equal terms with the citizens of the Republic of Belarus. Certain exemptions may be specified by legislative acts.
The Court considers that foreign nationals and stateless persons who reside in the territory of the Republic of Belarus and who have lawful source livelihood enjoy the right to purchase and sale flats (houses) in Belarus on equal terms with the citizens of the Republic of Belarus. In addition there is no exception for the possibility to establish by international treaties and by the laws of the Republic of Belarus the peculiarities of purchase and sale by them flats (houses) under contracts of purchase and sale.
Under the effective national legislation foreign nationals and stateless persons who have no place of residence in the Republic of Belarus do not enjoy these rights. The Court expounds at the same time that foreign nationals and stateless persons who do not reside in the territory of the Republic of Belarus have the right to purchase flats (houses) in the Republic of Belarus according to the international treaties and to the established procedure of realization of the norms of international treaties.
Presiding Officer —
Chairman of the
of the