SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of April 26, 2000 No. P-97/2000

About need of enhancement of the land legislation concerning the rights of the members of gardening partnerships who are owners of the parcels of land

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., having studied based on article 40 of the Constitution of the Republic of Belarus addresses of citizens - members of gardening partnerships - about the order them the parcels of land which are in private property established the following.

The relations concerning ownership, uses, orders and the seizures of land which are in property of citizens are regulated by the Civil code of the Republic of Belarus, the Code of the Republic of Belarus about the earth, some other regulations. The Standard charter of gardening partnership approved by the joint order of the Government and Belsovprofa of January 30, 1989 N55 also belongs to their number (further - the Standard charter).

The procedure for provision of the parcels of land for conducting collective gardening is determined by the Code of the Republic of Belarus about the earth (Article 75-77), become effective since January 1, 1999. Article 75 of the Code, in particular, provides that the citizens wishing to receive the parcel of land for conducting collective gardening submit the application to executive and administrative organ at the place of residence or on place of employment (legal entity) which provides creation of gardening partnership according to the procedure, determined by Council of Ministers of the Republic of Belarus. By article 76 of the Code it is determined that the lands provided for conducting collective gardening consist of lands public and the parcels of land which are in the life inherited tenancy or in private property of members of gardening partnership. On the parcel of land provided in private property to the member of gardening partnership by district executive and administrative organ the state act certifying the property right to this parcel of land is issued.

Thus, the member of gardening partnership has the right to receive the parcel of land in private property and to exercise the rights to the parcel of land according to the civil legislation. According to Article 262 of the Civil code gardening sites can be provided by their owners to other persons on right of lifetime inheritable possession, permanent use, and also in urgent use, including in lease.

The constitution of the Republic of Belarus provides the rights and freedoms of citizens of the Republic of Belarus as the prime target of the state (the Art. 21). Restriction of the rights and personal freedoms is allowed 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 (the Art. 23). 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. The security of property, the right to its inheritance are protected by the law (the Art. 44).

The existing Standard charter of gardening partnership was accepted when the private property on the earth was not allowed by the legislation of the Republic of Belarus. According to article 1 of the Standard charter the parcel of land under gardening partnership is provided in unlimited use to the company, organization, the organization. Item 21 of the Standard charter provides that for the member of gardening partnership right to use by the garden site allocated to it only in case of its absence in connection with job placement abroad remains, in case of departure for work to the region of the Far North, to the areas equated to them and in other cases of temporary absence when in accordance with the established procedure is reserved or remains for absent premises. At the same time other person recommended by the absent copartner can use for the period of its absence the garden site with the permission of board of gardening partnership on condition of observance by this person of requirements of the Charter of partnership.

Due to the enforcement new the Civil code of the Republic of Belarus, the Code of the Republic of Belarus about the earth and the Housing code of the Republic of Belarus there was number of questions, connected with ownership, use and the order of the parcels of land which are in property of citizens - members of gardening partnerships. In the appeals sent in the Constitutional Court of the Republic of Belarus questions of procedure for leasing of the parcels of land which are on the property right at members of gardening partnerships including in case of their temporary departure out of limits of the Republic of Belarus are put.

The constitutional court notes that the land legislation not fully governs the relations connected with implementation by members of gardening partnerships of competences of the owner to the parcels of land belonging to them. In particular, the procedure for delivery of this parcel of land to other persons in lease, and also orders is not determined by the parcel of land not only in case of temporary departure of the member of gardening partnership out of limits of the Republic of Belarus as it is provided by the Standard charter, but also in other cases.

The constitutional court pays attention that in case of the termination according to the current legislation of membership in gardening partnership the person which was disposed or excluded from members of gardening partnership shall dispose within one year of the parcel of land belonging to it on the right of private property (Art. 77 of the Code of the Republic of Belarus about the earth). At the same time effects of non-compliance with this requirement by the member of gardening partnership after the expiration of the year allocated for it for the order by the parcel of land are not provided in the Code. Article 53 of the Code of the Republic of Belarus about the earth, listing cases in which it is allowed the forced seizure of land, the citizens who are in property, legal entities of the Republic of Belarus performed by a court decision does not specify among them disposal or exception of members of gardening partnership.

With respect thereto, according to the Constitutional Court, there is need for enhancement of the Code of the Republic of Belarus about the earth, and also the fastest adoption of the new Standard charter of the gardening partnership which is based on the existing civil and land legislation that shall promote more complete protection of the rights of the members of gardening partnerships who are owners of the parcels of land.

Based on stated and being guided by article 40 of the Constitution of the Republic of Belarus, Articles 7, 36 Laws "About the Constitutional Court of the Republic of Belarus", the Constitutional Court

solved:

1. Suggest Council of Ministers of the Republic of Belarus to accelerate adoption of the new Standard charter of the gardening partnership which is based on the civil and land legislation and if necessary to make to competent authorities of the government the offers providing more complete legislative protection of the rights of the members of gardening partnerships who are owners of the parcels of land.

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

3. Publish this decision according to the current legislation.

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