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THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

Decision of April 25, 1995

In the Case on the Verification of the Constitutionality of Parts One and Two of Article 54 of the Housing Code of the in Connection with the Appeal of Citizen L.N. Sitalova

The Constitutional Court of the Russian Federation with M.V. Baglai presiding and Judges G.A. Gazhiev, A.L. Kononov, T.G. Morshakova, Iu.D. Rudkin, N.V. Seleznev, O.I. Tinunov, B.S. Ebzeev, and V.G. Iaroslavstev sitting,

with the participation of Lawyer N.N. Vriashnik--representative of the party bringing the appeal to the Constitutional Court of the Russian Federation, of representatives invited to the session: from the Supreme Court of the Russian Federation--N.Iu. Sergeeva from the Procuracy of the Russian Federation--A.V. Churilova, from the Ministry of Justice of the Russian Federation--P.V. Krashennikov, from the Ministry of Internal Affairs of the Russian Federation--V.Ia. Krivtsov,

being guided by Article 125 (Part 4) of the Constitution of the Russian Federation, Para. 3 of Part 1, Parts 2 and 3 of Article 3, Para. 3 of Part 2 of Article 22, Articles 96, 97, and 99 of the Federal Constitutional Law, "On the Constitutional Court of the Russian Federation,"

considered in open session a case on the verification of the Constitutionality of Parts 1 and 2 of Article 54 of the Housing Code of the RSFSR.

The ground for considering the case, according to Part 1 of Article 36 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation," was the appeal of Citizen L.N. Sitalova on the violation of her Constitutional right to housing by the norms of the Housing Code of the RSFSR applied by the court in her case.

The basis for considering the case, according to Part 2 of Article 36 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation," was the uncertainty found in the question of whether or not the provisions of the disputed norms of Article 54 of the Housing Code of the RSFSR correspond to the Constitution, norms to the effect that the lessee has the right to move other people into the housing premises occupied by him "by the established procedure," implying the observation of the residence permit rules.

Having heard the report of judge-rapporteur G.A. Gadzhiev, the arguments of the representative of the party who brought the appeal, the statements of those invited and of specialists who studied the materials presented and materials additionally obtained, the Constitutional Court of the Russian Federation

has determined:

1. Citizen L.N. Sitalova during five years was in de facto marital relations with Citizen V.N. Kaderkin and lived in his apartment, retaining her residence permit in another dwelling premises together with her daughter and son-in-law. After the death of the parents of V.N. Kaderkin, she raised the question of obtaining a permit to reside in his apartment, to which she did not receive consent.

The Narimanov District People's Court of Astrakhan Region, to which the applicant brought her case, satisfied her claims. The Judicial Division for Civil Cases of the Astrakhan Regional Court reversed the decision of the People's Court and left her claim without satisfaction, on the basis that she was moved into the dwelling premises in violation of the rules on residence permits provided by Article 54 of the Housing Code of the RSFSR, and that the applicant was not a member of the family of the lessee of this dwelling premises.

Thinking that thereby her Constitutional rights to housing were violated, L.N. Sitalova applied to the Constitutional Court of the Russian Federation with an appeal for the verification of the Constitutionality of Parts 1 and 2 of Article 54 of the Housing Code of the RSFSR.

2. According to Article 97 of the Federal Constitutional Law, "On the Constitutional Court of the Russian Federation," an appeal of a violation by a statute of Constitutional rights and freedoms is permissible if the statute appealed, in the first place impinges on the Constitutional rights and freedoms of citizens and in the second place has been applied or is subject to being applied in a concrete case, whose consideration in court has been completed or begun.

In accordance with the aforementioned Law, for the recognition of an appeal as permissible, no significance attaches to the content of the decisions adopted in the case by the courts of general jurisdiction nor to whether or not the case has been considered by all judicial instances. The Constitutional Court of the Russian Federation does not examine judicial decisions. A citizen has the right to apply to the Constitutional Court only in the case when he supposes that there is uncertainty on the question of whether or not a statute affecting his rights corresponds to the Constitution.

In the opinion of the applicant, the Judicial Division for Civil Cases of the Astrakhan Regional Court, in applying in her case Parts 1 and 2 of Article 54 of the Housing Code of the RSFSR, "by moving in by the established procedure understood moving into a dwelling premises with the observance of the residence permit regulations." This statute, as indicated in the appeal, does not correspond to the Constitution of the Russian Federation and its application impinges upon a Constitutional right of Citizen L.N. Sitalova. Accordingly her appeal is permissible and the decision of the question presented is within the Jurisdiction of the Constitutional Court of the Russian Federation. Moreover, the Constitutional Court of the Russian Federation, being guided by Parts 2 and 3 of Article 3 and Part 3 of Article 74 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation," is not bounded by the grounds and arguments stated in the appeal, and decides exclusively questions of law, refraining from establishing and investigating factual circumstances, including those confirming the violation of the rights of a citizen in a concrete case, in all instances when this enters into the competence of other c courts.

At the same time, the subject of consideration in under the present appeal is not the normative acts on residence permits. By a decision of the Committee on Constitutional Supervision of the USSR of October 11, 1991, they were found invalid and as such are not subject to appeal. The legality of actions and decisions of law implementation bodies based on such acts is considered by the courts of general jurisdiction, which, in accordance with Part. 2 of Article 12 of the Constitution of the Russian Federation, having established, in the consideration of a case, the in consistency of an act of a state or other body with a statute must adopt a decision in accordance with the statute.

3. The appeal has raised a question of the violation of Article 40 (Part 1) of the Constitution of the Russian Federation, in accordance with which everyone has the right to housing and no one may be arbitrarily deprived of housing. The legislature, in conducting the regulation of this Constitutional right was obligated to obey the requirement of Art 55 (Part 2) of the Constitution of the Russian Federation on the impermissibility of the reduction by statutes of the rights ad freedoms of man and the citizen. This has a direct relation tot he procedure for moving into a dwelling premises established in the Housing Code of the RSFSR.

The provision of Part 1 of Article 54 of the Housing Code of the RSFSR on the right of a tenant to move other citizens into a dwelling premises occupied by him "by the established procedure" has a blanket nature. The indefiniteness of its legal content makes it impossible to answer the question what body must establish this procedure and by what act and engenders an arbitrary understanding of what in means in its substance.

The absence of an indication of the type of normative act that must "establish the procedure" for moving into a dwelling premises allows the legislative and executive bodies of state power of the various subjects of the Russian Federation to establish it at their own discretion, which may lead to the violation of the Constitutional right of citizens to housing and to arbitrary depriving them of housing. This does not correspond to the requirements of Article 55 (Part 3) of the Constitution of the Russian Federation, according to which the rights and freedoms of man and the citizen may be limited only by a Federal Statute only to the extent for which it is necessary for the protection of the bases of the Constitutional order, morality, health, the rights and legal interests of other persons, ensuring defense of the country and the security of the state.

The judicial practice of applying Part 1 of Article 54 of the Housing Code of the RSFSR is also contradictory. Under legally similar circumstances cases of this category are decided differently by the courts, which entails legal consequences for citizens that are not the same.

The possibility of arbitrary application of the statute is a violation of the equality of all before the law and the court (Article 19, Part 1) proclaimed by the Constitution.

4. According to Part 2 of Article 74 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation," the Constitutional Court of the Russian Federation is obligated to evaluate both the literal meaning of the act under consideration and also the meaning given to it by official and other interpretation or developed practice of application of law.

The judicial interpretation of the Housing Code of the RSFSR developed as a recognition of the principle that the realization of housing rights was directly tied to a residence permit, the presence or absence of which was given right-establishing significance. For instance, in Para. 7 of the Decision of the Full Bench of the Supreme Court of the USSR of April 3, 1987, "On the Practice of the Application by Courts of Housing Legislation," it was explained that "by moving in by the established procedure is understood, as a rule, moving into a dwelling premises with observance of the residence permit provisions."

Despite the fact that the Decision of the Plenum of the Supreme Court of the Russian Federation of April 22, 1992, No. 8, in the version of the Decision of December 21, 1993, established that until the adoption of the corresponding legislative acts of the Russian Federation the norms of the former USSR and the explanations for their application contained in Decisions of the Plenum of the Supreme Court of the USSR might be applied by courts in the part not contradicting the Constitution of the Russian Federation and the Agreement on the Creation of the Commonwealth of Independent States, the bodies applying the law in the decision of questions of moving into dwelling premises often were guided by revoked normative acts. In particular, the requirements of Article 18 of the Constitution of the Russian Federation, according to which the rights and freedoms of man and the citizen are directly effective and determine the meaning, content, and application of statute laws and Article 27 (Part 1) of the Constitution of the Russian Federation, guarantying the right to freely choose a place of sojourn and residence, to the extent that its realization was made dependent upon obtaining authorization for a residence permit.

From the Constitution of the Russian Federation and the Law of the Russian Federation "On the Right of Citizens of the Russian Federation to Freedom of Movement, Choice of Place of Sojourn and Residence," it follows that registration, which replaced the residence permit system, or the absence of such may not serve as the basis for limitation or a as condition of the realization of the rights and freedoms of citizens (Article 3 of the Law), including the right to housing. However until the present time, "the established procedure," determining the procedure for moving into a dwelling premises has been understood in the practice of applying the law exclusively in the sense of observation of the residence permit provisions, which (with a citation of Parts 1 and 2 of Article 54 of the Housing Code of the RSFSR) took place also in the decision of the case of Citizen L.N. Sitalova.

Thus, the provision of Part 1 of Article 54 of the Housing Code of the RSFSR both in its literal interpretation and in the meaning that was given to it by developed practice of application of the law leads to the violation of Articles 18, 19 (Part 1), and also of the basic rights and freedoms of citizens provided by Articles 27 (Part 1), 40 (Part 1), and is not in accordance with the bases and conditions of limiting them found in Article 55 (Parts 2 and 3) of the Constitution of the Russian Federation. However, Part 2 of Article 54 of the Housing Code of the Russian Federation, defining the conditions of obtaining equal rights to the use of the dwelling premises does not contradict the abovementioned Constitutional norms.

On the basis of the aforesaid and guided by Part 1 of Article 71, Articles 72, 75, and 100 of the Federal Constitutional Law, "On the Constitutional Court of the Russian Federation," the Constitutional Court of the Russian Federation

has decided

1. To recognize the provision contained in Part 1 of Article 54 of the Housing Code of the RSFSR on "the established procedure" as the procedure for moving into a dwelling premises on the condition of observing the residence permit system as not in accord with the content of Articles 18, 19 (Part 1), 27 (Part 1), 40 (Part 1) and 55 (Parts 2 and 3) of the Constitution of the Russian Federation.

To recognize the norms contained in Part 2 of Article 54 of the Housing Code of the RSFSR as in accordance with the Constitution of the Russian Federation with the exception of the provisions recognized as unconstitutional in Subparagraph 1 of the present Paragraph.

2. In accordance with Part 2 of Article 100 of the Federal Constitutional Law, "On the Constitutional Court of the Russian Federation," the civil case on the Claim of L.N. Sitalova is subject to examination by the procedure established by the Civil Procedure Code of the RSFSR with respect to the application of the provision found unconstitutional by the present Decision.

The present Decision does not have prejudicial significance in deciding the question of the factual and legal bases for recognizing the housing rights of Citizen L.N. Sitalova.

3. According to Parts 1 and 2 of Article 79 of the Law On the Constitutional Court of the Russian Federation," the present Decision is final, not subject to appeal, and enters into force directly after its proclamation and has direct effect.

4. According to Article 78 of the Federal Constitutional Law, "On the Constitutional Court of the Russian Federation" the present Decision is subject to publication in the Collection of Legislation of the Russian Federation [Sobranie zakonodatel'stva Rossiiskoi Federatsii], the Gazette of Russia [Rossiiskaia gazeta], and also other official publications of agency of state power of the Russian Federation. The Decision also must be published in the Herald of the Constitutional Court of the Russian Federation [Vestnik Konstitutsionnogo Suda Rossiiskoi Federatsii]

Constitutional Court of the Russian Federation