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SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of October 27, 1999 No. P-89/99

About some questions connected with regulation of payment procedure of utilities

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., the vice-chairman - Maryskin A. V., Boyko T. S. judges., Kenik K. I., Podgrusha V. V., Tikovenko A.G., Filipchik R. I., G.B. Cone, Shuklina V. Z., having studied based on article 40 of the Constitution of the Republic of Belarus addresses of citizens in which the questions of payment of utilities are raised, including in connection with departure for a certain time to the rural zone, and also recalculation of payment for them, established the following.

According to part one of article 21 of the Constitution of the Republic of Belarus providing the rights and freedoms of citizens of the Republic of Belarus is the prime target of the state.

The state guarantees to citizens of the Republic of Belarus the right to freely move and choose the residence within the Republic of Belarus (article 30 of the Constitution).

The residence that settlement where the citizen constantly or mainly lives (Article 19 of the Civil code of the Republic of Belarus) is recognized.

According to Item 1 of Article 210 of the Civil code the owner possesses rights of possession, uses and orders of the property. By Article 2 of the Civil code it is determined that participants of civil legal relationship acquire and perform the civil laws the will and in the interests. Item 2 of Article 214 of the Civil code provides that the quantity and property value, being in property of citizens, are not limited, except as specified, when such restrictions are established by the law for the benefit of homeland security, public order, protection of morality, health of the population, the rights and freedoms of other persons.

Use of premises is inseparably linked with consumption by persons of utilities living in it. According to part two of article 28 of the Housing code the payment for utilities (is hotter also cold water supply, the sewerage, gas, electrical and heat energy, elevators, export and neutralization of municipal solid waste, other services) is levied according to rates for which the lessor pays these services if the legislation of the Republic of Belarus does not establish other.

N1332 "About Streamlining of Calculations of the Population for Use of Premises and Utilities" is provided by the resolution of Council of Ministers of the Republic of Belarus of August 25, 1999 that the payment for use (maintenance) of premises and utilities is made under the agreements signed by employers (owners) of premises with the housing and operational organizations, and in the presence of individual metering devices of consumption of water and gas - also under contracts with the utility and gas supplying organizations (Item 1. 5).

Legal regulation of these agreements is established by the Civil code and other regulations. The current legislation proceeds from the principle of payment only for the consumed utilities. According to part four of article 65 of the Housing code the payment for utilities is levied proceeding from the actual consumption of these services in kind. The law of the Republic of Belarus "About drinking water supply" provides obligation of consumers of drinking water timely to bring payment also only for the used water according to the established rates (Article 19).

In Item 3 of the Regulations on procedure for recalculations of payment for utilities and suspensions (renewal) of the provision of utilities approved by the order of the Ministry of Housing and Public Utilities of the Republic of Belarus of February 21, 1996 N 22, it is determined that the payment for utilities (cold and hot water, the sewerage, gas, export and neutralization of municipal solid waste) in case of lack of devices of room accounting of consumption of water and gas is not levied if the citizen left the permanent residence for the term of over ten days in a row. In this case recalculation of payment for utilities is performed.

According to Instructions for use the premises, contents of the apartment house and the house adjoining territory in the Republic of Belarus approved by the resolution of Council of Ministers of the Republic of Belarus of May 8, 1986 N129 (with changes and additions made by the resolution of November 13, 1995 N 623) for recalculation of payment for utilities it is necessary to submit the document confirming temporary absence or to lease premises in case of departure to representatives of the housing and operational organization.

The approximate list of documents which can confirm temporary absence of citizens and also circle of bodies and officials who having the right (shall) issue them, in the specified Rules is not determined. Also the procedure for delivery of premises in case of departure is not settled to representatives of the housing and operational organization. Proceeding from essence of the relations, analogy of the law (as when booking premises) is not quite acceptable here. At the same time in practice cases when the citizens having on the property right and (or) according to the employment contract several premises, for example in the city and rural zone cannot document the absence in one of these premises in connection with accommodation in another for cause of failure of relevant organs in issue of such references at this time quite often meet and therefore are forced to pay utilities (is hotter also cold water supply, the sewerage, gas, electrical and heat energy, elevators, export and neutralization of municipal solid waste, other services), which they actually did not consume. For example, it is cases of temporary residence of citizens during the spring and summer period of year in houses in the territory of the country cooperatives and gardening partnerships which are not using the premises in the place of permanent residence, but forced to make payment of the corresponding utilities in full. Appeal of actions of officials in connection with refusal in issue of necessary documents on the place and time of the actual accommodation, cannot be considered as the way out of the situation.

Besides, the certain citizens having the right to privileges on payment of utilities cannot use them because of impossibility of receipt of necessary documents. At the same time, according to the Constitutional Court, the concept of justice would be promoted by the solution of question of use of privileges on payment of utilities in proportion to accommodation time in each of premises.

The question of civil responsibility of those citizens who can represent for recalculation of payment for utilities the untrue data on the temporary absence at the place of residence is not settled also fully.

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