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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of April 11, 2011 No. 4-P

On the case of check of constitutionality of article 7 of the Federal law "About Enforcement of the Housing Code of the Russian Federation" in connection with the claim of citizens A. S. Epanechnikov and E. Yu. Epanechnikova

On behalf of the Russian Federation

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, G. A. Zhilin, S. M. Kazantsev, M. I. Kleandrov, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, N. V. Seleznyov, O. S. Hokhryakova,

with participation of citizens A. S. Epanechnikov and E. Yu. Epanechnikova, the permanent representative of the State Duma in the Constitutional Court of the Russian Federation A. N. Kharitonov, the representative of Council Federatsiidoktor of jurisprudence of E. V. Vinogradova, the plenipotentiary of the President of the Russian Federation in the Constitutional Court of the Russian Federation M. V. Krotov,

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, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",

considered case on check of constitutionality of article 7 of the Federal law "About Enforcement of the Housing Code of the Russian Federation" in open session.

Reason for consideration of the case was the claim of citizens A. S. Epanechnikov and E. Yu. Epanechnikova. 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.

Having heard the message of the judge-speaker G. A. Gadzhiyev, explanation of agents of the parties, speech of the representative invited in meeting from the Prosecutor General of the Russian Federation - T. A. Vasilyeva, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation established:

1. According to article 7 of the Federal Law of December 29, 2004 N 189-FZ "About enforcement of the Housing code of the Russian Federation" to the relations on use of premises which were in the apartment houses belonging to the state or municipal companies or the public or local government offices and used as hostels and are transferred to the jurisdiction of local government bodies, regulations of the Housing code of the Russian Federation about the agreement of social hiring are applied.

1.1. The applicants disputing constitutionality of the called regulation on this case are citizens A. S. Epanechnikov and E. Yu. Epanechnikova since 2006 till present live in the isolated room Ploshchad 12,2 of sq.m in the apartment located in the building of the hostel which N 608-p was left by the order of Mingosimuschestvo of Russia of June 29, 1998 on balance of JSC NPO Energomash for joint use with local administration and then the order of territorial administration of Federal agency on management of federal property across the Moscow region of May 14, 2007 N 473 is transferred to the municipal possession.

The room in which applicants live was provided to A. S. Epanechnikov as the employee of JSC NPO Energomash based on the Employment Contract of Premises in the Hostel of October 20, 2006. the Statement for the Conclusion of the Agreement of Social Hiring of These Premises Sent Them in July, 2009 to City Administration Khimki of the Moscow Region Is Left without Satisfaction with reference to the Fact that the Building in Which It Is Located Is in Borders of the Territory of Administrative and Public and Cultural and Community Objects and on Considerable Removal from the Living Area, Did Not Lose the Status of the Hostel and consequently, the Bases to the Conclusion of Such Agreement owing to Part 2 of Article 102 "Prekrashcheniye dogovora nayma spetsializirovannogo zhilogo pomeshcheniya" of the Housing code of the Russian Federation is not available.

The Khimki city court of the Moscow region the decision of March 29, 2010 with the reference including to article 7 of the Federal law "About Enforcement of the Housing Code of the Russian Federation" satisfied the claims of spouses Epanechnikov supported in judicial session by the representative of the third party of JSC NPO Energomash participating in case in quality. The judicial board on civil cases of the Moscow regional court determination of June 15, 2010 cancelled this decision, having considered that in case of the dispute resolution the Trial Court did not take into account that circumstance that the specified Article extends legal regime of social hiring for premises in hostels which were transferred to the municipal possession till March 1, 2005 (Date of Introduction of the Housing code of the Russian Federation in action), claimants are installed to disputed premises in October, 2006 and, therefore, the premises under the agreement of social hiring can be provided to them only according to the procedure of priority by rules of the Section III of the Housing code of the Russian Federation.

Transfer of the supervising claim for consideration in judicial session of Judicial board on civil cases of the Supreme Court of the Russian Federation to A. S. Epanechnikov and E. Yu. Epanechnikova it was refused by determination of the judge of the Supreme Court of the Russian Federation of September 28, 2010 who agreed with court of cassation instance that taking into account established in the matter of circumstances disputable legal relationship by article 7 of the Federal law "About Enforcement of the Housing Code of the Russian Federation" are not regulated.

1.2. As appears from Articles 74, 96 and 97 Federal constitutional Laws "About the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation are accepted by the resolution only in the subject specified in the claim of the citizen to violation of its constitutional rights by the law, estimating both literal sense of the considered legislative provisions, and the sense given them by official and other interpretation or the developed law-enforcement practice and also proceeding from their place in system of legal acts.

Article 7 of the Federal law "About Enforcement of the Housing Code of the Russian Federation" of the constitutional rights citizens A. S. Epanechnikov and E. Yu. Epanechnikova see violation that it allows to extend regulations of the Housing code of the Russian Federation about the agreement of social hiring for the relations on use of premises in the houses belonging to the state or municipal companies (organizations) and used as hostels, only if citizens received premises in the hostel, and the house in which it is is transferred to the jurisdiction of local government bodies before enforcement of the Housing code of the Russian Federation that, according to applicants, contradicts Articles 1 (part 1), 7 (part 1), 17 (part 1), 18, 19 (part 2), 21 (part 1), 40 (parts 1 and 2) and 55 (parts 2 and 3) of the Constitution of the Russian Federation.

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