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DECISION OF THE SECOND SENATE OF THE CONSTITUTIONAL COURT OF UKRAINE

On October 20, 2021 No. 7-r (II)/2021

On case on the constitutional claim of Private joint-stock company "Chernigovoblstroy" concerning compliance of the Constitution of Ukraine (constitutionality) of the subitem "b" of Item of 1 part three of article 14 of the Law of Ukraine "About ensuring realization of housing laws of inhabitants of hostels"

Case No. 3-181/2020(440/20)

The second senate of the Constitutional Court of Ukraine in structure:

Golovaty Sergey Petrovich (chairman of meeting),

Gorodovenko Victor Valentinovich,

Lemak Vasily Vasilyevich,

Moysik Vladimir Romanovich (speaker),

May Day Oleg Alekseevich,

Slidenko Igor Dmitriyevich,

Yurovskaya Galina Valentinovna,

No. 500-VI considered at plenary meeting case on the constitutional claim of Private joint-stock company "Chernigovoblstroy" concerning compliance of the Constitution of Ukraine (constitutionality) of the subitem "b" of Item of 1 part three of article 14 of the Law of Ukraine "About ensuring realization of housing laws of inhabitants of hostels" of September 4, 2008 (Sheets of the Verkhovna Rada of Ukraine, 2008, No. 46, the Art. 323) with changes.

Having heard the judge-speaker Moysik V. R. and having researched case papers, including line items which stated the President of Ukraine Zelensky VA., Chairman of the Verkhovna Rada of Ukraine Razumkov D. A., Prime Minister of Ukraine Shmygal D. A., Minister of Justice of Ukraine Malyuska D. L., chief executive of Association of the cities of Ukraine Slobozhan A. V., and also scientists of the Kiev national university of Taras Shevchenko, professor of department of the civil law, doctor of jurisprudence Harchenko G. G., associate professor of the civil law, Candidate of Law Sciences Mikhalnyuk A. V., National legal university of Yaroslav the Wise - the manager of department of the civil law No. 1, professor of Borisov of V. I., the Constitutional Court of Ukraine

established:

1. The private joint-stock company "Chernigovoblstroy" (further - Chernigovoblstroy) appealed to the Constitutional Court of Ukraine with the petition to check for compliance of the Constitution of Ukraine (constitutionality) the subitem "b" of Item of 1 part three of article 14 of the Law of Ukraine "About ensuring realization of housing laws of inhabitants of hostels" of September 4, 2008 No. 500-VI with changes (further - the Law No. 500), it is provided by which that the hostel included in the authorized capital of society is transferred to the possession of territorial community without the consent of the owner of the hostel by a court decision.

Such forced transfer of the hostel to municipal property is performed judicially in the claim of local government bodies in case of refusal of the owner of the hostel from its transfer on voluntary (contractual) conditions (item 4 of Article 5, Item 19 of article 18 of the Law No. 500).

According to Chernigovoblstroy, the challenged provision of the Law No. 500 does not correspond to parts one - the fifth article 41 of the Constitution as allows compulsory acquisition of objects of the right of private property, namely transfer to municipal property of the hostel included in the authorized capital of society without the consent of his owner by a court decision without preliminary and full recovery of cost of the hostel.

1.1. From contents of the constitutional claim and the materials attached to it it is seen that the hostel for small-family, put into operation in December, 1988, belongs "Chernigovoblstroy" on the right of private property.

Chernigovoblstroy acquired the right of private property to the hostel in connection with privatization of complete property complex to which also the hostel based on the purchase and sale agreement of municipal property signed on July 27, 1994 between Fund of municipal property and privatization of the Chernihiv regional council of People's Deputies and society of buyers of the Chernihiv regional project repair and construction rent company "Chernigovoblstroy" which legal successor is "Chernigovoblstroy" belonged.

By the legislation of Ukraine existing for the period of carrying out privatization of the Chernihiv regional project repair and construction rent company "Chernigovoblstroy" hostels were not objects of the state housing stock, privatizeable citizens of Ukraine or transfer to municipal property, and could be included in property of the companies, privatizeable.

The Chernihiv city council approved by the decision of December 30, 2013 the Program of transfer of hostels to property of territorial community of the city of Chernihiv and realization of housing laws of inhabitants of hostels for 2014-2015, having included in the list and the hostel belonging on the right of private property Chernigovoblstroy. The Chernihiv city council the letter of April 15, 2019 suggested Chernigovoblstroy to provide consent to transfer of the hostel to municipal property. However Chernigovoblstroy refused to provide such consent.

The Chernihiv city council appealed to Economic court of the Chernihiv region with the claim to Chernigovoblstroy for duty to transfer the hostel on beskompensatsionny basis to the municipal possession of territorial community of the city of Chernihiv. Claim was submitted after the parties could not reach agreement concerning the solution of question of transfer of the hostel to municipal property, including on compensation basis.

The economic court of the Chernihiv region the decision of October 10, 2019 left without changes by the resolution of Northern Economic Court of Appeal of January 15, 2020, satisfied the claim completely.

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