27 June 1996 № J-39/96
The Constitutional Court of the Republic of Belarus comprising of the presiding officer - Chairman of the Constitutional Court V.G.Tikhinya, Deputy Chairman of the Court V.A.Fadeyev and judges M.F.Chudakow, R.I.Filipchik, K.I.Kenik, M.I.Pastukhov, V.V.Podgrusha, N.M.Sereda, S.I.Tishkevich, A.E.Vashkevich, G.A.Vasilevich
with the participation of: representatives of the Supreme Council of the Republic of Belarus, which adopted the normative act: V.P.Hrol - Secretary of the Commission of the Supreme Council of the Republic of Belarus on Industry, Transport, Building, Energetics, Trade Industry and Other People Services, Communications and Informatic Science; V.V.Svitin - Main Specialist of Expert and Law Management of the Secretariat of the Supreme Council of the Republic of Belarus;
the Cabinet of Ministers of the Republic of Belarus, which issued the Temporary Regulation: B.V.Batura - Minister of Housing and Communal Services of the Republic of Belarus; V.O.Sukalo - Minister of Justice of the Republic of Belarus;
expert V.F.Chigir - Professor of the Chair on Civil Law of the
has considered in open session the case "On the conformity 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 to the Constitution and the laws of the Republic of Belarus".
The Court session was attended by: V.S.Kamenkov - Deputy Chairman of the Supreme Economic Court of the
The case was brought by the
The Court examined the 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" (Vedamasty Vyarkhounaga Saveta Respubliki Belarus, 1993, No.25, art.306) and 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 (Zbor Pastanov Urada Respubliki Belarus. 1993. No.25. Art. 486).
By point 1 of the Supreme Council Resolution the Council of Ministers has been instructed to work out and adopt Temporary Regulation on the Order of Purchase and Sale Flats (Houses) and provide in particular that residents of the Republic of Belarus shall have the right to purchase flats, and that flats could be sold to residents of the locality except cases stipulated by the legislation of the Republic of Belarus.
In cases flats are sold at auctions their purchasers could be citizens of the
Foreign nationals and stateless persons could purchase flats if they are residents of the Republic and have lawful source livelihood, juridical persons - if they have been registrated as such in the
In pursuance of the Supreme Council Resolution the Council of Ministers has passed on 31 August 1993 Temporary Regulation on the Order of Purchase and Sale Flats (Houses) in which has determined the order and conditions of purchase and sale of flats (houses) among citizens, among citizens and juridical persons and among juridical persons. Point 7 of the Temporary Regulation specifies in particular that the right to purchase flats have the residents of the
Point 8 of this Regulation envisages that flats could be sold to the residents of the locality. According to point
Having heard the representatives of the litigant, expert, having examined the materials of the case, having analysed the relevant provisions of the Constitution, International Treaties, laws and other normative acts, the Constitutional Court considers that certain norms of the Supreme Council Resolution and of Temporary Regulation of the Order of Purchase and Sale Flats (Houses) are at variance with the Constitution and the laws of the Republic of Belarus on the following grounds.
Article 22 of the Constitution proclaims that all shall be equal before the law and have the right, without any discrimination, to equal protection of their rights and legitimate interests.
Under Article 44 of the Constitution the State shall guarantee every person the right to property. An owner shall have the right to possess, use and dispose of assets individually, as well as jointly with other persons. The inviolability of property and the right to inherit it shall be ensured by the law.
Article 48 of the Constitution guarantees the right of citizens to housing. This right shall be secured by the development of state, communal and private housing, and by providing assistance to citizens in acquisition of dwellings.
The competence limits of an owner of property are determined by part 5 of Article 86 of the Civil Code which envisages that an owner of property has sovereign possibility to realize the competence of possession, use and disposal at his or her discretion and in his or her interests.
Article 6 of the Law "On Property in the
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.
Based on the aforementioned the Court has come to the conclusion that normative acts under verification which restrict the rights of an owner of property are at variance with Articles 22, 23, 44 and 48 of the Constitution.
The Court thinks that the norms of the acts under verification on the fact that only residents of the Republic of Belarus has the right to purchase, and that flats could be sold only to residents of the locality except in cases stipulated by the legislation are also at variance with Article 30 of the Constitution, International Covenant on Civil and Political Rights, the Civil Code.
Thus, Article 30 of the Constitution envisages that citizens of the
Under Article 12 of the International Covenant on Civil and Political Rights every person who is legally in the territory of a state has the right to move freely and choose the place of residence within this territory.
Article 10 of the Civil Code refers the right of a citizen to choose freely the place of residence to the basic competences which determine his or her legal capacity.
In this connection the Court considers that having no possibility to sell freely or purchase his or her flat (house) in other locality, a citizen is deprived of the possibility to move freely and choose the place of residence within the Republic, to leave it and to return to it without hindrance.
On the basis of the aforementioned and binding by Articles 127, 128, 129 of the Constitution, Articles 5, 36, 38, 40, 43 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To recognize point 1 of the Resolution of the Supreme Council of the
only residents of the
the flats could be sold only to residents of the locality;
in cases flats are sold at auctions in the city of
To consider these norms null and void from the moment of passing the present Judgment.
2. To advise the Supreme Council, the Cabinet of Ministers and other executive bodies to bring the normative acts into line with the present Judgment.
3. To publish the present Judgment in ten days time from the date of its passing in "Vedamasty Vyarkhovnaga Saveta Respubliki Belarus", "Narodnaya Gazeta", "Zvyazda" as well as in those publications where the enforceable enactments of the Supreme Council and the Council of Ministers of the Republic of Belarus under verification were published.
4. The present Judgment shall come into legal force from the date of its proclamation, is final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the