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The decision of the Constitutional Court of the Russian Federation from January, 30th, 2009 N 1 - P St.-Petersburg On the case of check of constitutionality of positions of points 2, 3 and 4 articles 13 and the paragraph of second point 1 1 articles 14 of the Federal law About a turn of the earths of agricultural purpose in connection with the complaint of citizen L. G.Pogodinoj

the Name of the Russian Federation

the Constitutional Court of the Russian Federation as a part of Chairm V.D.Zorkina, judges N.S.Bondarja, G.A.Gadzhiev, Ju. M.Danilov, L. M.Zharkovoj, G.A.Zhilin, S. M.Kazantsev, M.I.Kleandrova, S.D.Knyazev, A.L.Kononova, L. O.Krasavchikovoj, S. P.Mavrina, N. V.Melnikova, Ju.D.Rudkina, N. V.Seleznev, A.Ja.Slivy, V.G.Strekozova, O.S.Hohrjakovoj, Century Yaroslavtsev,

with participation of the constant representative of the State Duma in the Constitutional Court of the Russian Federation of A.N.Haritonova, the representative of the Federation Council - doctors of jurisprudence E. V.Vinogradovoj, the plenipotentiary of the President of the Russian Federation in the Constitutional Court of the Russian Federation of M.V.Krotova,

being guided by article 125 (a part 4) Constitutions of the Russian Federation, point 3 of a part of the first, parts of third and fourth article 3, a part of first article 21, articles 36, 74, 86, 96, 97 and 99 Federal constitutional laws About the Constitutional Court of the Russian Federation

has considered in a public meeting case about check of constitutionality of positions of points 2, 3 and 4 articles 13 and the paragraph of second point 1 1 articles 14 of the Federal law About a turn of the earths of agricultural purpose .

the Occasion to a legal investigation was the complaint of the citizen of L. G.Pogodinoj. The basis to a legal investigation was the found out uncertainty of a question on, whether there correspond Constitutions of the Russian Federation statutes challenged by the declarant.

Having heard the message of the judge - lecturer G.A.Gadzhiev, an explanation of representatives of the State Duma, the Federation Council and the President of the Russian Federation, the expert opinion - doctors of jurisprudence G.A.Volkova, the candidate of jurisprudence D. V.Pjatkova and the doctor of jurisprudence V.V.Ustjukovoj, performance of the representatives invited in session: from the General public prosecutor of the Russian Federation - T.A.Vasilevoj, from the Ministry of Agriculture of the Russian Federation - A.A.Kaljaginoj, from inter-regional social movement Country front - S.Ju.Shugaeva, having investigated the presented documents and other materials, the Constitutional Court of the Russian Federation

has established:

1. Article 13 of the Federal law from July, 24th, 2002 N 101 - FZ About a turn of the earths of agricultural purpose (in edition of the Federal law from July, 18th, 2005 N 87 - FZ) the right of the participant is fixed or participants of the share property for the ground area from the agricultural purpose earths to allocate the ground area on account of the ground share or the ground shares (point 1) and it is provided that the site of the ground area allocated on account of a ground share, is defined by the participant of the share property according to the decision of general meeting of participants of the share property at the statement of borders of a part of the ground area being in the share property intended for allocation in a prime order of the ground areas on account of ground shares according to article 14 of the given Federal law; Formation of the ground area allocated on account of a ground share, is carried out on the basis of this decision (point 2); in case general meeting of participants of the share property has not confirmed such borders, the participant of the share property is obliged to inform in writing on the intention to allocate the ground area on account of the ground share of other participants of the share property or to publish the message in the mass media defined by the subject of the Russian Federation, with instructions of a prospective site of the allocated ground area (the paragraph the first point 3); in case within thirty days from the date of the appropriate notice from participants of the share property objections concerning a site of the allocated ground area will not arrive, the offer on its site is considered co-ordinated; Disputes on a site of the allocated ground area are resolved by participants of the share property with use of the conciliation procedures which order of carrying out is established by the subject of the Russian Federation; in a case nedostizhenija the co-ordinated decision such disputes are considered in court (point 4).

Article 14 of the named Federal law establishing features of definition of an order of the order, possession and using the ground area which is in the share property, it is provided, in particular, that general meeting of participants of the share property is considered competent if on it there are participants of the share property on this ground area, components not less than 20 percent of their total number or owning more than 50 percent of shares owning more at the right of the general property to this ground area; The decision is considered accepted if for it participants of the share property on this ground area, present on general meeting and owning in aggregate more than 50 percent of shares in the right of the general property to this ground area from total number of shares, with which participants of the share property present at such meeting on this ground area (the paragraph of the second of point 1 1 possess have voted).

1. 1. A number of citizens - participants of the share property on located in Ramensky area of Moscow Region the ground area from the earths of agricultural purpose with cadastral number 50:23:00000000:0008, including the declarant on the present business citizen L. G.Pogodin, on September, 15th, 2005 have published in the newspaper Daily news. Moscow suburbs The message on the intention to allocate on account of ground shares belonging to them the ground area the area of 17,5 hectares near to village the Mihajlovsky Large village, having specified the description of its borders, also have received objections from others sosobstvennikov, declared that they assumed to allocate in the future the ground area in the same place. At that point in time the decision by which the site of a part of the ground area being in the share property intended for allocation in a prime order of the ground areas on account of ground shares would be defined, was not accepted by general meeting of participants of the share property. On November, 21st, 2006 one of sosobstvennikov, applying for ground area allocation in disputable territory, has informed through the newspaper on carrying out on December, 25th, 2006 general meeting of participants of the share property. Simultaneously another sosobstvennik - Joint-Stock Company PH Chulkovsky Also has declared the intention to allocate in the same territory the ground area and also has received corresponding objections.

After at general meeting of participants of the share property, taken place on December, 25th, 2006, allocation of the disputable ground area in favour of Joint-Stock Company PH " by a majority of votes has been confirmed; Chulkovsky the citizens, the first declared the intention to allocate the ground area in this territory, have addressed in Ramensky city court of Moscow Region with the claim about a recognition void results of general meeting and, accordingly, objections concerning their intention to allocate the ground area which borders have been specified in the message published on September, 15th, 2005. Claimants motivated the requirements, besides other, that general meeting of participants of the share property on the ground area is competent to define only a site of a part of this ground area in which borders the participant of the share property himself defines a site of the ground area allocated with it on account of the ground share; at dispute presence between sosobstvennikami it has not the right to incur function of court and to resolve such dispute by majority of votes.

the Ramensky city court of Moscow Region the decision from November, 22nd, 2007 has refused satisfaction of claim requirements, having considered that general meeting of participants of the share property has been spent in full conformity with articles 13 and 14 Federal laws About a turn of the earths of agricultural purpose . Thus the court has noticed that quantity of ground shares which at the moment of general meeting carrying out respondents under the claim - Joint-Stock Company PH " owned; Chulkovsky And a number of others sosobstvennikov, voting in its advantage (838 shares, or 62,09 % from a total area of the ground area being in the share property), allowed them to make any decision without dependence from opinion of others sosobstvennikov.

1. 2. Citizen L. G.Pogodin asks to recognise to not corresponding articles 17 (a part 3), 19 (a part 2) and 55 (parts 2 and 3) Constitutions of the Russian Federation point 2 of article 13 of the Federal law About a turn of the earths of agricultural purpose . According to the declarant, norm containing in it, supposing possibility of allocation to the participant of the share property on the ground area from the earths of agricultural purpose of the concrete ground area on account of its ground share on the basis of voting of participants of the share property present at general meeting, allows sosobstvennikam, having a majority of votes, to use the superiority in a property status for realisation of the rights to the detriment of the rights sosobstvennikov, voices having minority, in particular to allocate the ground area on account of ground shares belonging to them, without reckoning with intention of other participants of the share property to allocate on account of the shares the ground area in the same territory; Besides, the given norm owing to the uncertainty supposes the statement of borders of a part of the ground area being in the share property intended for allocation in nature of ground shares, without number sosobstvennikov, having intention to be allocated, and numbers assumed to vydelu ground shares that in practice leads to impossibility of satisfaction of requirements of all sosobstvennikov, wishing to realise the right on vydel, and sosobstvennikam, having on general meeting a majority of votes, allows to solve at own discretion, whose ground shares are allocated, and whose - remain in the general share property, and to use advantage in voices for allocation of the ground area on account of the shares.

L. G.Pogodin asks to recognise also to not corresponding articles 19 (a part 2) and 55 (a part 3) Constitutions of the Russian Federation the paragraph of article 14 of the Federal law second point 1 [1] About a turn of the earths of agricultural purpose as believes that the rule containing in him according to which the poll, belonging to the participant of the share property on the ground area, is defined by number of ground shares belonging to him, establishes an inequality sosobstvennikov depending on their property status and limits the rights of those from them who has smaller number of ground shares, in relation to the rights of those who has bolshee number of ground shares.

Thus, the declarant sees infringement of the constitutional laws by order of allocation of the ground areas on account of shares in the right of the general property to the ground area from the agricultural purpose earths separate sosobstvennikam, including carrying out of general meeting of participants of the share property on the ground area which decision is considered accepted if for it the participants of the share property owning in aggregate more than 50 percent of a share in the right of the general property on this ground area from total number of a share whom all participants of the share property present at general meeting on this ground area possess have voted.

the Given order is established by the interconnected positions of points 2 - 4 articles 13 and the paragraph of second point 1 [1] of article 14 of the Federal law About a turn of the earths of agricultural purpose Which owing to articles 74, 96 and 97 Federal constitutional laws About the Constitutional Court of the Russian Federation also are a subject of consideration of the Constitutional Court of the Russian Federation on the present business.

2. According to article 9 of the Constitution of the Russian Federation the earth and other natural resources are used and protected in the Russian Federation as a basis of life and activity of the people living in corresponding territory (a part 1), and can be in private, state, municipal and other patterns of ownership (a part 2).

the Constitution of the Russian Federation, fixing the right of a private property and opening in article 35 its constitutional maintenance including competences to have property in the property, to own, use and dispose of it as individually, and together with other persons, allocates as an independent constitutional law the right of citizens and their associations to have in a private property the earth (article 36, a part 1) and, concretising with reference to the given right article 17 instruction (a part 3), establishes that possession, using and the order the earth are carried out by its proprietors freely if it does not put a damage to environment and does not break the rights and legitimate interests of other persons (article 36, a part 2).

the duty of the legislator follows From the resulted positions of the Constitution of the Russian Federation to observe at regulation of ground relations, including the ground areas arising in the field of a turn and a share in the right of the general property to the agricultural purpose ground areas, balance of private and public interests which are mentioned by realisation of the right of a private property on the earth, on the basis of the constitutional principle of proportionality (article 55, a part 3, Constitutions of the Russian Federation) to provide protection by the law of the right of a private property, as that article 35 (a part 1) demands the Constitution of the Russian Federation, and proceeding from representations about the earth as to a basis of life and activity of the people living in corresponding territory.

3. According to point 2 of article 1 of the Federal law About a turn of the earths of agricultural purpose Legal regulation of relations in the field of a turn of the ground areas and shares in the right of the general property to the ground areas from the agricultural purpose earths is carried out by the Constitution of the Russian Federation, the Ground code of the Russian Federation, the Civil code of the Russian Federation given by the Federal law, other federal laws, and also other standard legal certificates of the Russian Federation accepted according to them and laws of subjects of the Russian Federation.

the Civil code of the Russian Federation recognising as the basic beginnings of the civil legislation, having the constitutional value, equality of participants of property it property and personal non-property relations, inviolability of the property, contract freedom, inadmissibility of any intervention someone in private affairs, necessity of unobstructed realisation of the civil rights, maintenance of restoration of the broken rights, their judicial protection (article 1 point 1), concerning the rights to the property which is in the share property, provides that the order is carried out by such property under the agreement of all its participants; the participant of the share property has the right to sell, present, bequeath, pawn at own discretion the share or to dispose of it otherwise with observance at it vozmezdnom alienation provided by article 250 of the given Code of rules about preimushchestvennom the right purchases (article 246); the property which is in the share property, can be divided between its participants under the agreement between them; the participant of the share property has the right to demand vydela the share from the general property (points 1 and 2 articles 252).

According to the Ground code of the Russian Federation property relations on possession, using and the order the ground areas, and also on fulfilment of transactions with them are regulated by the civil legislation if other is not provided by the ground legislation and special federal laws (article 3 point 3). Fixing general provisions on the property right to the earth, the Civil code of the Russian Federation establishes in article 260 point 2 that the earths of the agricultural and other special-purpose designation which use for other purposes is not supposed or limited, defined on the basis of the law and in the order established by it; Using the ground area carried to such earths, can be carried out in the limits defined by its special-purpose designation.

Preservation of target use of the ground areas - one of principles, on which, according to subparagraph 1 of point 3 of article 1 of the Federal law About a turn of the earths of agricultural purpose the turn of the earths of agricultural purpose is based. Taking into account the given principle following from article 9 of the Constitution of the Russian Federation, and recognising that relations of the general share property on the ground areas from the earths of agricultural purpose have resulted from realisation of privatisation of the agricultural grounds belonging to collective farms and state farms, by investment of their members (workers) with the right to the ground share, the federal legislator has defined in point 1 of article 12 of the named Federal law that to the transactions made with shares in the right of the general property on the ground area from the earths of agricultural purpose in case the number of participants of the share property on this ground area exceeds five, rules of the Civil code of the Russian Federation are applied taking into account the features established in articles 12 - 14 given Federal laws.

Owing to special norms containing in specified articles the decision on an order of possession and using the ground area which is in the share property, is accepted not under the agreement of all participants of the general share property on this ground area on the basis of a consensus as it is provided in article 247 GK of the Russian Federation concerning the property which is in the share property, and by a majority of votes at general meeting sosobstvennikov. Entering such regulation, the federal legislator was guided by the constitutional principle of proportionality to observe balance of private and public interests and to provide realisation of a constitutional law of citizens to have in a private property the earth, without breaking the technological communications which have developed in agriculture.

4. The relations arising at allocation in an order, established by points 2 - 4 articles 13 and the paragraph the second point 1 1 articles 14 of the Federal law About a turn of the earths of agricultural purpose the ground areas on account of shares in the right of the general property to the ground area from the agricultural purpose earths, the rights and legitimate interests of all participants of the share property on this ground area, i.e. considerable, as a rule, numbers sosobstvennikov that is why some signs of corporate relations are peculiar to them are mentioned.

So, for corporate relations presence of various interests at separate groups of shareholders is characteristic that as has specified the Constitutional Court of the Russian Federation in the Decision from February, 24th, 2004 N 3 - P, objectively leads to increase of value of legal procedures of acceptance of economic decisions which should be a guarantee of the rights of minority. With reference to relations concerning the share property on the ground area from the agricultural purpose earths carrying out of general meeting of participants of the share property concerns number of such procedures on this ground area which initiators, according to the paragraph to the first point 1 1 articles 14 of the named Federal law, can be the agricultural organisation using this ground area, the participant of the share property on this ground area, and also local government in the location of the given ground area.

4. 1. The right of the participant of the share property to the ground area from the agricultural purpose earths on allocation of the ground area on account of the ground share does not carry absolute character as its realisation is caused by the requirements of preservation of a special-purpose designation of such ground areas defined by the legislator and presence at sosobstvennikov the general interests expressed by the majority.

to prevent inexpedient, from the point of view of this majority, allocation of the concrete ground areas in which result cost of the ground area remaining in the general property can unfairly decrease or to be complicated its use on a special-purpose designation, the federal legislator has given to general meeting sosobstvennikov the right to confirm borders (site) of a part of the ground area being in the share property intended for allocation in a prime order of the ground areas on account of ground shares, and to the participant of the share property, wished to allocate the ground share in nature, - possibility to define in these borders a site of the allocated ground area.

Such legislative restriction of a constitutional law of ownership of land of one person - as it is carried out with a view of protection of the rights and legitimate interests of other persons and at the same time assumes that general meeting of participants of the share property on the ground area has not the right to define border of a part of this ground area intended for allocation in a prime order of the ground areas on account of ground shares, in size smaller, than it is necessary for satisfaction of requirements of all sosobstvennikov, expressed intention to allocate the shares in nature, - cannot be considered as disproportionate to the purposes listed in article 55 (a part 3) Constitutions of the Russian Federation.

4. 2. For a case when general meeting of participants of the share property has not confirmed a site of a part of the ground area being in the share property intended for allocation in a prime order of the ground areas on account of ground shares, the law, protecting private interest sosobstvennika, expressed desire to be allocated, gives it possibility to define a site of the ground area allocated on account of a ground share through the publication in mass media of the message which should contain the description of a site of the allocated ground area and instructions on necessity of a direction in writing objections of others sosobstvennikov concerning this site. Accordingly, such possibility - owing to the legal logic of realisation of the constitutional principle of proportionality - should admit and for a case when general meeting was not spent at all provided that interested sosobstvennikom all necessary actions on the general meeting convocation, confirmed documentary have been undertaken.

In the specified cases the coordination of private and general interests of participants of the share property is possible on the basis of default. If there is at least one objection concerning a site of the allocated ground area corresponding dispute is subject to the permission with use of conciliation procedures, an establishment of which order of carrying out the federal legislator has assigned on subjects of the Russian Federation in the best way to provide the account of the historical in federative state historical and local traditions, national and natural features.

Permitting to participants of the share property on the ground area to use conciliation procedures for definition of a site of the allocated ground areas and providing thus that in a case nedostizhenija the co-ordinated decision (and consequently, and in a case when sosobstvenniki, having objections, evade from carrying out of conciliation procedures) corresponding disputes are considered in court, the federal legislator took into consideration as necessity of maintenance of protection of sphere of private interests sosobstvennikov and by that - maintenance of protection with the law of the right of a private property (article 35, a part of 1 Constitution of the Russian Federation) and requirements of the Constitution of the Russian Federation according to which justice in the Russian Federation is carried out only by court (article 118, a part 1) and to everyone judicial protection of its rights and freedom (article 46, a part 1) is guaranteed.

As a conciliation procedure - owing to following from the Constitution of the Russian Federation, its articles 8, 19, 34 and 35, a basic principle according to which citizens and legal bodies get and carry out the civil rights the will and in the interest, - participants of the share property on the ground area can use and carrying out of general meeting for definition of a site of the allocated ground areas. In that case the decision on allocation to the participant of the share property of the concrete ground area on account of the ground share belonging to it, accepted with observance of requirements of the paragraph of second point 1 [1] of article 14 of the Federal law About a turn of the earths of agricultural purpose will have personal character, instead of concordant with it sosobstvenniki have the right to challenge it in a judicial order just as it is provided for cases nedostizhenija the co-ordinated decision within the limits of other conciliation procedures.

Other would mean essential distortion konstitutsionno - the legal nature of relations of the general share property based on balance of individual and collective interests, excessive, not corresponding to article 55 purposes (a part 3) the Constitution of the Russian Federation restriction of the subjective right on allocation of the ground area on account of a ground share and would not allow to realise the right to judicial protection which as repeatedly specified the Constitutional Court of the Russian Federation, has universal character and as that acts as a guarantee of all other constitutional laws and freedom.

At the same time limits of judicial control over decisions of general meeting of participants of the share property by which the site of a part of the ground area being in the share property intended for allocation in a prime order of the ground areas on account of ground shares is defined, and the decisions accepted at general meeting of participants of the share property within the limits of the coordination of a question on allocation sosobstvenniku of the concrete ground area on account of its ground share, - with the account konstitutsionno - the legal nature of relations of participants of the share property excluding owing to article 55 (a part 3) Constitutions of the Russian Federation and point 1 of article 1 GK of the Russian Federation any any intervention in private affairs, - can not coincide.

4. 3. According to a legal position of the Constitutional Court of the Russian Federation formulated in the Decision from July, 22nd, 2002 N 14 - P with reference to a voting procedure and decision-making at session of association of creditors, decision-making by majority of votes of creditors taking into account the sums of property requirements belonging to them is democratic procedure; the given procedure cannot be considered as infringement of the constitutional principles of equality and legal equality (article 19 (parts 1 and 2) Constitutions of the Russian Federation) as which concrete definition the principle of equality of the rights of all participants grazhdansko - the legal relations acts, fixed in point 1 of article 1 GK of the Russian Federation.

the Resulted legal position is quite applicable to the regulation containing in the paragraph second point 1 1 articles 14 of the Federal law About a turn of the earths of agricultural purpose Which allocates general meeting of participants of the general share property by the right to make decisions, including concerning a site of a part of the ground area being in the general property in which borders the ground areas on account of ground shares sosobstvennikov, or the ground area, allocated separate sosobstvenniku on account of its ground share, by a majority of votes, defined on number of the ground shares belonging to participants of the share property, present on this general meeting will be allocated.

Such order of decision-making considering property character of relations of the general share property on the ground area and considerable, as a rule, number of participants of this share property, is adequate to the model of realisation selected the legislator sosobstvennikami the rights to allocation of the ground areas on account of the ground shares, the autonomy of will constructed on a recognition of everyone sosobstvennika and respect of its right independently to dispose of property belonging to it, and does not contradict the constitutional principle of justice.

4. 4. Thus, on sense of the interconnected positions of points 2 - 4 articles 13 and the paragraph of second point 1 1 articles 14 of the Federal law About a turn of the earths of agricultural purpose neprovedenie general meeting sosobstvennikov on delimitation (site) of a part of the ground area being in the general property intended for allocation in a prime order of the ground areas on account of ground shares, - thus that interested sosobstvennik has undertaken measures all ought and depending on it to carrying out of such general meeting, - cannot serve as an obstacle for realisation by participants of the share property of the right to allocation of the ground areas on account of the ground shares with use of conciliation procedures; Thus possibility of use as a conciliation procedure carrying out of general meeting of participants of the share property on the ground area for development of the decision on allocation separate sosobstvennikam the ground areas on account of their ground shares which is accepted by the majority of votes defined on number of ground shares, belonging to participants of the share property present at this general meeting and which can be challenged not concordant with it sosobstvennikami in a judicial order is not excluded.

Proceeding from stated and being guided by article 6, parts of first and second article 71, articles 72, 75, 79 and 100 Federal constitutional laws About the Constitutional Court of the Russian Federation the Constitutional Court of the Russian Federation

has decided:

1. To recognise the interconnected positions of points 2, 3 and 4 articles 13 and the paragraph of second point 1 [1] of article 14 of the Federal law About a turn of the earths of agricultural purpose with which the allocation order separate sosobstvennikam the ground areas on account of their shares in the right of the general property to the ground area from the agricultural purpose earths, - in them konstitutsionno - the legal sense revealed in the present Decision, - not contradicting the Constitution of the Russian Federation is established.

Konstitutsionno - the legal sense of the specified statutes is obligatory that excludes any their other interpretation in pravoprimenitelnoj to practice.

2. Business of citizen L. G.Pogodinoj if it is authorised on the basis of positions of points 2 - 4 articles 13 and the paragraph of second point 1 1 articles 14 of the Federal law About a turn of the earths agricultural onValues in the interpretation dispersing them konstitutsionno - the legal sense revealed in the present Decision, is subject to revision when due hereunder at absence for this purpose other obstacles.

3. The present Decision is definitive, is not subject to the appeal, comes into force immediately after declaration, operates directly and does not demand acknowledgement by other bodies and officials.

4. According to article 78 of the Federal constitutional law About the Constitutional Court of the Russian Federation the present Decision is subject to immediate publication in and Meeting of the legislation of the Russian Federation . The decision should be published also in the Bulletin of the Constitutional Court of the Russian Federation .

the Constitutional Court of the Russian Federation