On behalf of the Russian Federation

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of February 11, 2019 No. 9-P

On the case of check of constitutionality of part 5 of article 13 of the Federal law "About Features of Regulation of Separate Legal Relationship in connection with Accession to the Subject of the Russian Federation — to the Federal City of Moscow of the Territories and about Modification of Separate Legal Acts of the Russian Federation" in connection with claims of citizens A. K. Kachkovsky and A. G. Fedosov

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 part 5 of article 13 of the Federal law "About Features of Regulation of Separate Legal Relationship in connection with Accession to the Subject of the Russian Federation — to the Federal City of Moscow of the Territories and about Modification of Separate Legal Acts of the Russian Federation".

Reason for consideration of the case were claims of citizens A. K. Kachkovsky and A. G. Fedosov. 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 legislative provision disputed 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 L. M. Zharkova, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation

established:

1. According to part 5 of article 13 of the Federal Law of April 5, 2013 "About features of regulation of separate legal relationship in connection with accession to the subject of the Russian Federation - to the federal city of Moscow of the territories and about modification of separate legal acts of the Russian Federation" when calculating the amount of compensation to owners of the parcels of land, land users, land owners and lessees of the parcels of land of cost of the withdrawn real estate the specified cost is determined No. 43-FZ for the day preceding decision making about approval of documentation on the layout of the territory providing placement of object of the federal importance or regional value specified regarding the 2nd article 1 of the same Federal Law for the purposes of which placement withdrawal of real estate, proceeding from the permitted use of the parcels of land for the day preceding approval of documentation on the layout of the territory is performed providing placement of this object.

Constitutionality of the given legislative provision is disputed by citizens A. K. Kachkovsky and A. G. Fedosov who were owners of garages boxes and parking places in the non-residential building which were included in the list of the real estate units which are subject to withdrawal for the state needs. This list is approved by the order of Department of city property of the city of Moscow of April 8, 2016 No. 7718 "About withdrawal for the state needs of real estate units for the purposes of construction of the Northeast chord: The site from Shosse Entuziastov to MKAD (from the 4th transport ring to the Area of Veshnyaki) (East administrative district of the city of Moscow)" which, as appears from its prolog, is accepted including according to the order of the Government of Moscow of April 9, 2013 No. 218-PP "About approval of the site planning of the site of linear object of street road net - the site of the Northern rokada from Shosse Entuziastov to MKAD". Due to A. K. Kachkovsky and A. G. Fedosov's refusal to sign draft agreements on withdrawal of property (are directed by letters of August 19 and 24, 2016 and of November 25, 2016 respectively), at whom its market value is determined as of April 8, 2013, i.e. for the day preceding adoption of the specified order of the Government of Moscow, the called Department took a legal action with claims about withdrawal of property.

The decision of Perovsky district court of the city of Moscow of March 22, 2017 left without change appeal determination of judicial board on civil cases of the Moscow city court of June 30, 2017 meets the requirement about withdrawal at A.K. Kachkovsky garage boxing and ten parking places and to it compensation in the amount of 4 910 000 rub is awarded, and the decision of the same district court of December 1, 2017 which is also left without change determination of Appeal Court of February 28, 2018 meets the requirement about withdrawal of garage boxing of A. G. Fedosov with award of compensation to it in the amount of 790 000 rub. Courts with reference to the disputed legislative provision rejected arguments of defendants about need to determine the amount of compensation proceeding from market value of the property belonging to them at the time of decision making about its withdrawal (April, 2016) which, it agrees to the valuation reports submitted by them in court prepared by authorized organizations constituted 8 236 000 rub and 1 538 000 rub respectively. With writs of appeal on the taken place judgments defendants did not address.

According to A. K. Kachkovsky and A. G. Fedosov, the disputed legislative provision contradicts Article 35 (part 3) Constitutions of the Russian Federation as deprives of owners of the right to receive equivalent compensation for compulsory acquisition for the state needs of the real estate belonging to them.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info