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On behalf of the Russian Federation

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of December 20, 2018 No. 46-P

On the case of check of constitutionality of paragraph two of Item 40 of Rules of provision of utilities to owners and users of rooms in apartment houses and apartment houses in connection with claims of citizens V. I. Leonova and N. Ya. Timofeev

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, K. V. Aranovsky's judges, A. I. Boytsova, N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, O. S. Hokhryakova, V. G. Yaroslavtsev,

being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Article part one 21, Articles 36, 47.1, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",

considered in meeting without carrying out hearing case on check of constitutionality of paragraph two of Item 40 of Rules of provision of utilities to owners and users of rooms in apartment houses and apartment houses.

Reason for consideration of the case were claims of citizens V. I. Leonova and N. Ya. Timofeev. The basis to consideration of the case was the found uncertainty in question of whether there corresponds to the Constitution of the Russian Federation the normative provision challenged by applicants.

As both claims concern the same subject, the Constitutional Court of the Russian Federation, being guided by article 48 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", connected cases on these addresses in one production.

Having heard the message of the judge-speaker S. P. Mavrin, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation

established:

1. According to the paragraph to the second Item 40 of Rules of provision of utilities to owners and users of rooms in apartment houses and apartment houses (No. 354) are approved by the order of the Government of the Russian Federation of May 6, 2011 the consumer of utility on heating regardless of the chosen method of management of the apartment house brings payment for this service in total without separation into payment for consumption of the specified service in the residential or non-residential premise and payment for its consumption for the purpose of content of common property in the apartment house.

1.1. Constitutionality of the given normative provision is disputed by the citizen V. I. Leonova (subject of its claim Item 40 of the called Rules in full formally is, but actually it connects violation of the constitutional rights with content of its paragraph two) and the citizen N. Ya. Timofeev - owners of apartments in the apartment houses connected to centralized networks of heat supply, at the same time in their apartments individual room sources of heat energy (gas coppers) are established.

In the apartment of V. I. Leonova which was the non-residential premise used as shop earlier and it was not connected to centralized networks of heat supply of the apartment house and intra house engineering systems of heating, installation of such source is made in 2002 at the expense of its means based on the permission issued to Service of the Single Customer Municipal Unitary Enterprise of housing and communal services of the city of Taganrog, and specifications provided to JSC Taganrogmezhraygaz on the project executed by NPP Tagekspertgaz. In N. Ya. Timofeev's apartment works on the device of autonomous heating are performed in 2005 according to the project executed by JSC Chuvashsetgaz taking into account the specifications on designing of gas supply provided by Kanashmezhraygaz branch of JSC Chuvashsetgaz, and also specifications on transfer of premises into individual heating, provided by city administration Kanash of the Chuvash Republic.

After installation in apartments of applicants of individual room sources of heat energy the payment for utility on heating was not charged by it, however the corresponding payments began to be charged by V. I. Leonova - since January, 2017 managing company, to N. Ya. Timofeev - since October, 2014 the resource supplying organization.

The decision of the magistrate judge of the Taganrog judicial district of the Rostov region of September 20, 2017 the claims shown to managing company for the benefit of V. I. Leonova about reduction of payment for utilities from January to April, 2017 concerning heating, about compensation of moral harm, penalty and penalty for dissatisfaction in voluntary procedure for consumer requirements were satisfied partially: the obligation is assigned to the defendant to reduce payment for utility on heating, the amounts of penalty and penalty, and also the amount of compensation of moral harm is reduced by court.

The Taganrog city court appeal determination of February 19, 2018 cancelled the called decision of the magistrate judge and, rejecting claims, indicated the need payments by owners of rooms in the apartment house of the heat energy arriving not only is direct to premises, but also to general rooms of the house; transfer of certain rooms in the apartment house from centralized heating on individual, according to court, does not mean the termination of consumption of heat energy on heating of rooms with the dismantled (switched-off) heating devices and in the amount falling on all-house needs as one of sources of heat supply of such rooms is return of heat the struts of central heating passing through all rooms in the house. Besides, the court referred to legal line item of the Supreme Court of the Russian Federation which noted that the operating normative regulation does not provide possibility of transition of one or several premises in the apartment house with the central heat supply on individual heating in this connection the Government of the Russian Federation whose competence according to part 1 of article 157 of the Housing code of the Russian Federation includes establishment of procedure for determination of standard rates of consumption of utilities, does not settle possibility of determination separately of the standard rate of consumption of heat energy for all-house needs and the standard rate of its consumption for heating of the residential (non-residential) room (the solution of May 7, 2015 No. AKPI15-198 about refusal in satisfaction of statements for recognition to invalid owners and users of rooms of paragraph two of Item 40 of Rules of provision of utilities in apartment houses and apartment houses). The Appeal Court also came to conclusion about failure of evidence of observance of established procedure of reorganization of premises by V. I. Leonova and receipts of permission of local government body to transfer of the apartment to individual heating by her.

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