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DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

of November 11, 2008 No. 25-rp/2008

On the constitutional representation of the President of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of the Resolution of the Cabinet of Ministers of Ukraine "About approval of the Procedure for carrying out in 2008 land auctions" (case on land auctions)

Case No. 1-46/2008

NAME OF UKRAINE

Constitutional court of Ukraine consisting of judges:

Strizhak Andrey Andreevich - the chairman,

Baulin Yury Vasilyevich,

Brintsev Vasily Dmitriyevich,

Vdovichenko Sergey Leonidovich,

Golovin Anatoly Sergeyevich,

Dzhunya Vyacheslav Vasilyevich,

Didkovsky Anatoly Aleksandrovich,

Dombrovsky Ivan Petrovich - the speaker,

Kamp Vladimir Mikhaylovich,

Mikhail Ivanovich's ear,

Lilak Dmitry Dmitriyevich,

Markush Maria Andreevna,

Machuzhak Yaroslava Vasilyevna,

Stetsyuk Pyotr Bogdanovich,

Tkachuk Pavel Nikolaevich,

with the assistance of the representative of the person of law on the constitutional representation Stavniychuk Marina Ivanovna - the Representative of the President of Ukraine in the Constitutional Court of Ukraine, Nemchenko of Vasily Ivanovichapostoyanny of the representative of the Cabinet of Ministers of Ukraine in the Constitutional Court of Ukraine, Selivanov Anatoly Aleksandrovich - the Permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine,

considered at plenary meeting case on the constitutional representation of the President of Ukraine concerning compliance of the Constitution of Ukraine (constitutionality) of the Resolution of the Cabinet of Ministers of Ukraine "About approval of the Procedure for carrying out in 2008 of land auctions" of April 17, 2008 N 394 (Of? c? yniya in? Ukra§ni, 2008, N 33, of the Art. 1086) drooped.

Having heard Dombrovsky I.P.'s judge-speaker, explanations Stavniychuk M. I., Nemchenko V. I., Selivanova A. O. and having researched case papers, the Constitutional Court of Ukraine established:

1. On July 21, 2008 the President of Ukraine issued the Decree N 639 "About stop of operation of the resolution of the Cabinet of Ministers of Ukraine of April 17, 2008 N 394" and appealed to the Constitutional Court of Ukraine with the petition to consider question concerning compliance of the Constitution of Ukraine (constitutionality) of the Resolution of the Cabinet of Ministers of Ukraine "About approval of the Procedure for carrying out in 2008 of land auctions" of April 17, 2008 N 394 (further - the Resolution).

According to the person of law on the constitutional representation, the Resolution is the bylaw therefore settlement of questions of legal regime of land ownership by it does not answer regulations of the Constitution of Ukraine (to Articles 1, of 8, of Article part two 13, of part two Article 14, to parts two, third Article 41, of Item 7 parts one of Article 92). The Cabinet of Ministers of Ukraine, having issued the Resolution, did not consider the legal line item of the Constitutional Court of Ukraine stated in the Decision of September 22, 2005 to N 5-rp/2005 on the case of permanent use of the parcels of land by which according to Articles 13, of 14, of Item 7 parts one of article 92 of the Constitution of Ukraine the legal regime of property and use of the earth is determined only by the laws of Ukraine.

The author of the petition considers that the Constitution of Ukraine, the Land code of Ukraine, the Law of Ukraine "About lease of land", other laws to which the Cabinet of Ministers of Ukraine referred in the Resolution do not establish possibility of determination of procedure for holding the auction (the land biddings) the bylaw and do not give to the Government of Ukraine authority concerning approval of procedure for holding auctions for sale of the parcels of land. Thus the Cabinet of Ministers of Ukraine issued the Resolution with exceeding provided by the Constitution and the laws of Ukraine of powers, than violated requirements of part two of Article 19, of Article part three 113, of Item 10 of Article 116, of Article part one 117, of part two of Article 120 of the Fundamental Law of Ukraine.

2. At plenary meeting of the Constitutional Court of Ukraine the representative of the person of law on the constitutional representation supported the petition stated in the constitutional representation, and representatives of the Verkhovna Rada of Ukraine, the Cabinet of Ministers of Ukraine gave reasons for line items of bodies which they represent for rather constitutional representation.

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