SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of March 25, 1997 No. P-55/97

About interpretation of the Conclusion of the Constitutional Court of the Republic of Belarus of June 27, 1996 "About compliance of the Constitution and the law of the Republic of Belarus resolutions of the Supreme Council of June 11, 1993 "About procedure for purchase and sale of apartments (houses) in the Republic of Belarus" and the Provisional regulations for procedure for purchase and sale of apartments (houses) approved by the resolution of Council of Ministers of August 31, 1993 No. 589"

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., vice-chairman of Court Maryskin A. V., Boyko T. S. judges., Vorobey G. A., Kenik K. I., Podgrusha V. V., Sarkisovoy E.A., Tikovenko A. G., Filipchik R. I., Shabaylova V. I., Cone G. B.

with participation of representatives:

Houses of Representatives of National assembly of the Republic of Belarus of Matusevich A. V. - directors of the Belarusian institute of the state construction and legislation;

Council of the Republic of National assembly of the Republic of Belarus Sviridovoy S.A. - deputy chief of expert legal department of the Secretariat of Council of the Republic;

Council of Ministers of the Republic of Belarus of Golovanov of V.G.zamestitel of the Minister of Justice and Dobrovolsky G. G. - the deputy minister of housing and communal services;

expert Chigir V. F. - professors of department of the civil law of the Belarusian state university, doctor of jurisprudence

considered in open session question of giving interpretation of the Conclusion of the Constitutional Court of the Republic of Belarus of June 27, 1996 "About compliance of the Constitution and to the laws of the Republic of Belarus of the resolution of the Supreme Council of June 11, 1993 "About procedure for purchase and sale of apartments (houses) in the Republic of Belarus" and the Provisional regulations for procedure for purchase and sale of apartments (houses) approved by the resolution of Council of Ministers of August 31, 1993 N589".

Took part in judicial session:

Ptashnik V. N. is the vice-chairman of the Supreme Court;

Kiselyov A. I. - vice-chairman of the Supreme Economic Court;

Ivanovsky A. V. - deputy attorney general.

The conclusion of the Constitutional Court of June 27, 1996 recognizes non-conforming to the Constitution and the laws of the Republic of Belarus Item 1 of the resolution of the Supreme Council of the Republic of Belarus of June 11, 1993 "About procedure for purchase and sale of apartments (houses) in the Republic of Belarus" also Items 7, 8 and 16 Provisional regulations for procedure for purchase and sale of apartments (houses), the Council of Ministers of the Republic of Belarus approved by the resolution of August 31, 1993 by N589" in the part providing that:

in property by purchase only the citizens of the Republic of Belarus who are constantly living in its territory have the right to acquisition of the apartment;

apartments can be sold only to the citizens who are constantly living in this settlement;

in cases of sale of apartments at auctions in the city of Minsk the citizens of the Republic of Belarus who are constantly living in the city of Minsk can only be their buyers.

The Supreme Council of the thirteenth convocation and Council of Ministers did not bring the regulations which were consideration subject in the Constitutional Court into compliance with the Conclusion of Court.

The Ministry of Justice of the Republic of Belarus appealed to the Constitutional Court with request to give interpretation of the Conclusion as his ambiguous understanding creates certain difficulties in law-enforcement practice.

Having heard representatives of chambers of National assembly, Council of Ministers, the expert, having researched case papers, and also having studied the questions arising in practice of application of the called regulations, the Constitutional Court came to conclusion about need of interpretation of the Conclusion of Court of June 27, 1996.

Being guided by article 41 of the Law "About the Constitutional Court of the Republic of Belarus" and article 78 of Regulations of the Constitutional Court, Court

EXPLAINS:

Recognizing illegality of the separate regulations containing in the resolution of the Supreme Council and Provisional regulations for procedure for purchase and sale of apartments (houses) limiting the rights of citizens to acquisition of apartments (houses), the Court meant the following.

According to article 10 of the Constitution protection and protection of the state both in the territory of Belarus, and beyond its limits is guaranteed to the citizen of the Republic of Belarus.

According to article 30 of the Constitution citizens of the Republic of Belarus have the right to freely move and choose the residence within the Republic of Belarus, to leave it and to come back freely.

Article 44 of the Constitution provides that the state guarantees everyone the property right and promotes its acquisition. The owner has the right to own, use and dispose of property as solely, and together with other persons. Implementation of the property right shall not contradict public advantage and safety, to do harm to the environment, historical and cultural values, to infringe at the rights and interests of other persons protected by the law.

In article 6 of the Law "About Property in the Republic of Belarus" it is specified that the owner at discretion owns, uses and disposes of the property belonging to it, and he has the right to make any actions which are not contradicting the law with this property.

Article 23 of the Constitution allows restriction of the rights and personal freedoms only in the cases provided 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.

According to Court, the citizen of the Republic of Belarus, without having opportunity to freely sell the apartment (house) or to purchase the apartment (house) in other settlement, in certain measure it is limited in the right to freely move and choose the residence within the republic, to leave it and to come back freely.

Taking into account stated, the Court considers that citizens of the Republic of Belarus including permanent living beyond its limits, have the right to acquire apartments (house) according to the purchase and sale agreement in any settlements of the Republic of Belarus irrespective of the permanent residence. At the same time, according to Court, by the law features of purchase and sale of apartments (houses) in the city of Minsk as Minsk as the capital of the Republic of Belarus according to the Constitution has special status can be determined.

According to article 11 of the Constitution foreign citizens and stateless persons in the territory of Belarus have the rights and freedoms and fulfill duties on an equal basis with citizens of the Republic of Belarus if other is not determined by the Constitution, the laws and international treaties.

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