SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of December 4, 2001 No. P-133/2001

About local hunting collection

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., vice-chairman 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., G.B. Cone, Shuklina V. Z. considered based on Article 40 and part four of article 122 of the Constitution of the Republic of Belarus the address of members of the Brest department of the Belarusian society of hunters and fishers about check of legitimacy of collection of local hunting collection in addition to payment of the state fee for provision of the right to hunting.

Constitutional court, having analyzed relevant provisions of the Constitution, the laws of the Republic of Belarus "About the budget of the Republic of Belarus for 2001", "About the taxes and fees levied in the budget of the Republic of Belarus", "About local authority and self-government in the Republic of Belarus", "About protection and use of fauna", "About the state fee", other regulatory legal acts, established the following.

The procedure for legal regulation in the field of protection and use of fauna is established by the Law "About Protection and Use of Fauna" according to which article 37 objects of fauna are provided in use according to requirements of this Law and other legislation of the Republic of Belarus. Objects of fauna are provided in use for a fee based on special permissions (licenses) issued by specially authorized state body of the Republic of Belarus on natural resources and environmental protection, except as specified, provided by the Law "About Protection and Use of Fauna" and other acts of the legislation. In article 45 of this Law it is determined that with hunting weapon, other permitted hunting tools, and also with hunting dogs and hunting birds all capable citizens who reached 18-year age, passed special hunting examination, paid the state fee in the established size and having the state certificate on have the right to hunting for the territories of the Republic of Belarus hunting the right issued by specially authorized state body of the Republic of Belarus on forestry which is valid in all territory of the Republic of Belarus, and also permission of law-enforcement bodies to storage and carrying hunting weapon.

For provision of the right to hunting according to Item 8 of article 2 of the Law "About the State Fee" the state fee which rate according to the resolution of Council of Ministers of the Republic of Belarus of February 26, 1993 No. 105 (with changes and amendments) constitutes 20 percent of minimum wage is collected. Payment of the state fee is made according to Item 9 of the resolution of Council of Ministers of the Republic of Belarus of December 30, 1997 No. 1750 "About hunting and maintaining hunting economy in the territory of the Republic of Belarus" (in edition of October 6, 1999 No. 1552) once in the calendar year in the amount of established by the legislation on condition of direct realization by the citizen of this right. At the same time the specified duty shall be brought until receipt of the hunting permit or one-time permission to production of the separate animal species relating to subjects to hunting. The hunting permit and (or) one-time permission to production of separate types of the wild animals belonging to subjects to hunting according to Item 15 of the Regulations on hunting and maintaining the hunting economy in the territory of the Republic of Belarus approved by the resolution of Council of Ministers of December 30, 1997 No. 1750, are issued by lessees of hunting grounds for a fee which size is established by them based on recommendations about cost determination of the hunting permit and the one-time permission approved in accordance with the established procedure (Recommendations about cost determination of hunting permits and one-time permissions to production of separate types of the wild animals belonging to subjects to hunting are applied now the Republic of Belarus approved by orders of the Ministry of Natural Resources and Environmental Protection of March 17, 1998 No. 77, the Ministries of Finance of the Republic of Belarus of March 18, 1998 No. 84, the Ministries of Economics of the Republic of Belarus of March 24, 1998 No. 24).

From Items 17, 20-22 Procedures for issue of the state certificates on the hunting right in the Republic of Belarus, forestry of the Republic of Belarus approved by the Ministry on June 2, 1997, follow that the hunting certificate grants the right to hunting in the presence of the accounting card of abuses of regulations of hunting and payment of the state fee with mark about payment of the state fee for the current year. The accounting card of abuses of regulations of hunting and payment of the state fee is obligatory amendment to the hunting certificate.

According to article 9 of the Law "About Protection and Use of Fauna" establishment of borders of hunting and fishing grounds and the conclusion of agreements on their lease, approval of limits on use of fauna, the organization of collection of payments for use of fauna, establishment and collection of the local taxes and charges for separate types of use of fauna belong to competence of local councils of deputies, executive and administrative organs in protection and use of fauna.

The legal line item of the Constitutional Court about constitutionality of establishment according to the law of the local taxes and charges of deputies by local councils is earlier stated in the solution of the Constitutional Court of the Republic of Belarus of November 16, 2001. "About local collection for use of parking and the parking in specially equipped places".

The exhaustive list of the local taxes and charges entered regional, Minsk city by Councils of deputies, Councils of deputies of basic territorial level in the territory of the corresponding administrative and territorial units, containing in article 10 of the Law "About the Budget of the Republic of Belarus for 2001" includes as one of types of charges from the user fishing and hunting charges (subitem 1.1 of Item 1).

According to the Constitutional Court, collection according to the Law "About the State Fee" of the state fee for provision of the right to hunting does not influence legislatively affirmed right of local councils of deputies to enter local hunting collection in the territory of the corresponding administrative and territorial units.

The decision of the Brest regional council of deputies from December 21, 2000 No. 107 "About the budget of the area for 2001" enters local hunting collection, the Regulations on local hunting collection (in dalneyshempolozheniye) are approved in which payers of collection, rate of charge in the amount of one minimum wage, frequency of payment of collection (once a year), privileges for separate categories of citizens, procedure for collection of collection, responsibility are determined.

The constitutional court notes that the Provision contains internal contradiction regarding determination of payers of collection. So, if in the paragraph the second Provisions it is specified that payers of collection are all physical persons exercising the right to hunting in hunting farms and grounds of the Brest district irrespective of place of employment and residence, then proceeding from regulations, the stated in paragraphs eight, the ninth, eleventh, payers of collection are also hunting farms to which collection of collection in case of primary issue of the permit to the hunting right is assigned. The obligation of these organizations is provided to issue the receipt order, to represent calculations of collection to tax authority and to list collection no later than the twenty second following reporting. It is specified that payers of collection for non-presentation, untimely representation of calculations to tax authority, concealment (understating) of collection and other violations bear responsibility according to the Law "About the Taxes and Fees Levied in the Budget of the Republic of Belarus".

The constitutional court pays attention that regulations of paragraphs of the eighth, ninth, eleventh Provision will not be approved with preamble, Articles 1, of 8, 9 Laws "About the Taxes and Fees Levied in the Budget of the Republic of Belarus" according to which the taxes and fees levied in the budget of the Republic of Belarus are understood as obligatory assignments of money from payers in the sizes determined by the laws; as payers persons obliged to bring in the budget taxes and fees in cases, stipulated by the legislation the Republic of Belarus are considered; the obligation timely is assigned to payers and in complete size to pay the receivable amounts of the budget; taxpayers bear the responsibility established by the legislation, except the cases determined in legal acts when responsibility is conferred on the third parties - income sources for the taxpayer.

The constitutional court notes that payment of the state fee for provision of the right to hunting is made annually. In case of establishment of the state fee first of all the covering of expenses of specially authorized bodies connected with services of public nature, making of legally significant actions or issue of the documents having legal value means. With respect thereto the Constitutional Court believes that authorized state bodies need to consider question of enhancement of regulations of the current legislation regarding conditions and regularity of collection of the state fee. According to the Constitutional Court, such duty shall not be paid annually as now as in that case it acquires nature of collection.

Materials of session of the Brest regional council of deputies on social and economic development and the budget of the area for 2001 are published in the district newspaper "Zarya Nad Bugom" 27 and 30 of December, 2000. The regulations on local hunting collection approved by the decision of the Brest regional council of deputies from December 21, 2000 No. 107, are not published.

According to article 34 of the Constitution the right to complete, reliable and timely information about activities of state bodies is guaranteed to citizens of the Republic of Belarus. State bodies, public associations, officials shall give to the citizen of the Republic of Belarus opportunity to get acquainted with the materials affecting its rights and legitimate interests.

The constitutional court considers that in case of establishment of the local taxes and charges not only decisions of local councils of deputies on introduction of these taxes and fees, but also regulations on them which are the regulatory legal acts which are regulating questions of calculation and payment of the local taxes and charges, directly affecting the rights and legitimate interests of citizens and the organizations are subject to publication.

Being guided by Article 40, Article part one 116, Articles 120, of 121, 122 Constitutions, Articles 7, of 36, 38 Laws "About the Constitutional Court of the Republic of Belarus", the Constitutional Court

solved:

1. Recognize the decision of the Brest regional council of deputies from December 21, 2000 No. 107 "About the budget of the area for 2001" regarding introduction of local hunting collection corresponding to the Constitution, the laws of the Republic of Belarus "About the budget of the Republic of Belarus for 2001", "About the taxes and fees levied in the budget of the Republic of Belarus", "About local authority and self-government in the Republic of Belarus", "About protection and use of fauna".

Note at the same time that regulations of paragraphs of the eighth, ninth, eleventh Regulations on local hunting collection approved by the decision of the Brest regional council of deputies from December 21, 2000 No. 107, will not be approved with the provisions of the Law of the Republic of Belarus specified in this decision "About the taxes and fees levied in the budget of the Republic of Belarus".

2. To the Brest regional council of deputies to give the Regulations on local hunting collection approved by the decision of the Brest regional council of deputies from December 21, 2000 No. 107, in compliance with the Law of the Republic of Belarus "About the taxes and fees levied in the budget of the Republic of Belarus" and also this decision and in accordance with the established procedure to publish this Provision.

3. Draw the attention of local councils of deputies to need of unconditional observance of requirements of articles 7 and 34 of the Constitution of the Republic of Belarus for providing the right of citizens to receipt of complete, reliable and timely information about the activities of state bodies which are directly affecting their rights and legitimate interests including by publication of decisions of local councils of deputies on introduction of the local taxes and charges and regulations on them.

4. Suggest Council of Ministers of the Republic of Belarus to consider question of enhancement of regulations of the Regulations on hunting and maintaining the hunting economy in the territory of the Republic of Belarus approved by the resolution of Council of Ministers of the Republic of Belarus of December 30, 1997 No. 1750, regarding conditions and regularity of collection of the state fee, meaning that the state fee is usually collected in connection with rendering services of legal nature either making of legally significant actions or issue of the documents having legal value.

5. This decision becomes effective from the date of acceptance.

6. Publish this decision according to the legislation.

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