City of Moscow

April 4, 1996

 

The Constitutional Court of the Russian Federation, consisting of presiding judge O.I. Tiunov, judges M.V. Baglai, G.A. Gadzhiev, T.G. Morshchakova, Yu.D. Rudkin, N.V. Seleznyov, B.S. Ebzeyev and V.G. Yaroslavtsev,

with the participation of lawyer Ye.P. Danilov – representative of the Head of the Republic of Komi; citizens V.I. Kutsyllo and R.S. Klebanov, who petitioned the Constitutional Court of the Russian Federation with individual complaints; representatives of the parties who issued and signed the disputed normative acts: S.Ye. Dontsov – head of the state legal department of the mayoralty of the city of Moscow and candidate of legal sciences; lawyer M.D. Smirnov, representing the interests of the administration of the Moscow Oblast; V.A. Cherepanov – deputy of the State Duma of the Stavropol Krai and candidate of legal sciences; T.D. Zrazhevskaya, representing the interests of the Voronezh Oblast Duma, candidate of legal sciences,

taking guidance from clause "b" of part two and part four of Article 125 of the Constitution of the Russian Federation, clause 1 "b" and clause 3 of part one of Article 3, clause 1 "b" and clause 3 of part two of Article 22, Articles 86 and 99 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation,

has reviewed in an open session the case testing the constitutionality of Article 2 of Law of the City of Moscow of September 14, 1994 On Fees for the Compensation of Expenses of the City Budget for the Development of the Infrastructure of the City and Provision of Social and Household Conditions for Citizens Arriving in the City of Moscow for Residency; clauses 4 and 10 of the Statute on the Uniform Procedure for the Consideration of Questions Concerning Permanent Registration and De-registration of the Population in Moscow and the Moscow Oblast (as approved by Decree of the Government of Moscow and the Government of the Moscow Oblast No. 393-14 of May 3, 1995; clause 1 of the Procedure for the Consideration of Questions Concerning the Permanent Registration (Registration) of Citizens Residing Outside of the Boundaries of the City of Moscow and the Moscow Oblast who have Arrived for Residence in the City of Moscow at Residential Space Belonging to them on the Basis of a Property Right (approved by Decree of the Government of Moscow No. 922 of October 11, 1994); Directives of the Head of the Administration of the Moscow Oblast No. 83 of February 9, 1993 On the Approval of the Procedure for the Consideration of Applications for the Acquisition of Licenses for the Right to Invite Specialists from Other Cities to the Moscow Oblast and No. 439 of May 6, 1994 On the Cost of Licenses; Articles 1 and 3 of the Law of the Voronezh Oblast of March 10, 1995 On the Regulation of the Migration Process in the Territory of the Voronezh Oblast and clause 18 of the Temporary Statute on the Procedure for the Registration of Citizens Who have Arrived for Permanent or Temporary Residency in the Territory of the Voronezh Oblast, as approved by the above-mentioned Law; clauses 1.1 and 1.6 of the Statute on Participatory Shares of Enterprises, Organizations, Private Firms and Private Individuals Participating in the Construction of Housing in the City of Voronezh (as approved by Decree of the Head of the Administration of the City of Voronezh No. 608 of August 10, 1994 On Measures to Increase Control over Migration Processes in the City of Voronezh; clauses 3, 21 and 29 of the Temporary Statute on Stays and Assignment to Permanent Places of Residence in the Stavropol Krai (as approved by Decree of the State Duma of the Stavropol Krai No. 118-8 of October 6, 1994).

The basis for the consideration of the case, in accordance with part one of Article 36 of the Federal Law On the Constitutional Court of the Russian Federation, was a application from the Head of the Republic of Komi, Yu.A. Spiridonov, with a request to declare as not conforming to the Constitution of the Russian Federation the enumerated provisions of the aforementioned normative acts of the city of Moscow and the Moscow Oblast, the Stavropol Krai, the Voronezh Ablest and the City of Voronezh, as well as individual complaints from citizens V.I. Kutsyllo and R. S. Klebanov to verify the constitutionality of Article 2 of the aforementioned Law of the City of Moscow.  In the opinion of the complainants, the acts in question violate Articles 4, 27, 35, 55 and 76 of the Constitution of the Russian Federation.

Having heard the report of the reporting judge G.A. Gadzhiev, the arguments of the parties and their representatives: Ye.P. Danilov, V.I. Kutsyllo, R.S. Klebanov, V.A. Cherepanov, S.Ye. Dontsov, M.D. Smirnov and T.D. Zrazhevskaya; and the statements of the following invited persons:

M.A. Mityukov – the plenipotentiary of the President of the Russian Federation; S.A. Demikhova – executive director of the Association "Union of the Cities of the Polar Circle and the Far North"; V.K. Bobrova – director of the analytic group of the Commission for Human Rights under the President of the Russian Federation, V.Ya. Krivtsov – deputy head of the passport and visa department of the Ministry of Internal Affairs of the Russian Federation; the opinion of expert S.G. Pepelyaev – director of the division of tax consulting of the audit firm "Finansovye i bukhgalterskiye konsultanty" and candidate of legal sciences; having studied the documents and other materials presented, the Constitutional Court of the Russian Federation:

established:

1. That Decree of the State Duma of the Stavropol Krai No. 118-8 of October 6, 1994 approved the Temporary Statute on Stays and Assignment to Permanent Places of Residence in the Stavropol Krai, to which amendments and additions were subsequently introduced by Decrees of November 24, 1994 and June 29, 1995.  According to the Temporary Statute the right of citizens to chose a place of residence in the Stavropol Krai may be realized only on a paid basis (clause 3); the assignment to a permanent place of residence in populated areas of Kavkazskiye Mineralnye Vody of the Stavropol Krai is possible only with a special permit issued within the limits of annual quotas equal to 0.5% of the number of residents of the corresponding populated area (clause 21).  The Temporary Statute also established that all persons who have arrived to the Stavropol Krai for permanent residence must undergo registration within 10 days from the day of the determination of their place residence and that prior to the adoption of corresponding legislation of the Russian Federation, registration at place of residence means the permanent registration of citizens (clause 29).

Directives of the Head of the Administration of the Moscow Oblast No. 83 of February 9, 1993 and No. 439 of May 6, 1994 approved the Procedure for the Consideration of Applications for the Acquisition of Licenses for the Right to Invite Specialists from Other Cities to the Moscow Oblast and established their cost (for districts within the suburb zone of Moscow – 9 million rubles for a family of no more than three persons, for other districts of the Moscow Oblast – 6 million rubles).  Directive of the Head of the Administration of the Moscow Oblast No. 638 of July 7, 1994 declared Directive No. 83 of February 9, 1993 to have lost force and approved a new Procedure for the Consideration of Applications for the Acquisition of Licenses for the Right for Legal Entities and Individuals Who have Chosen the Moscow Oblast as a Place of Stay or Residence to Invite to the Moscow Oblast Specialists and Laborers from Other Cities.  In it are reproduced the norms of the previously effective Procedure, establishing that a license is the basis for the permanent registration of a specialist invited from another city, together with family members, at the residential space either provided by the enterprise or acquired for ownership (clause 7), and the obligation to acquire such a license is imposed not only, as previously, on legal entities, but also on individuals (clause 1).

The Law of the City of Moscow of September 14, 1994 On the Fee for the Compensation of Expenses of the City Budget for the Development of the Infrastructure of the City and Provision of Social and Household Services for Citizens Arriving to the City of Moscow for Residency establishes in Article 2 that citizens of the Russian Federation who have arrived for residence in the city of Moscow to residential space belonging to them on the basis of a property right shall pay a fee of 500 times the minimum monthly wage.  In connection with the adoption of this Law the Government of Moscow, by its Decree No. 922 of October 11, 1994, approved the Procedure for the Consideration of Questions Concerning the Permanent Registration (Registration) of Citizens Residing Outside of the Boundaries of the City of Moscow and the Moscow Oblast who have Arrived for Residence in the City of Moscow to Residential Space Belonging to Them on the Basis of a Property Right.  According to its clause 1, only citizens who have paid the fee established in the above-named Law are entitled to permanent registration (registration).

Decree of the Government of Moscow and Government of the Moscow Oblast No. 1030-43 of December 26, 1995 On the Registration and De-registration of Citizens of the Russian Federation at Their Place of Stay or Place of Residence in Moscow and the Moscow Oblast approves the Regulations for the Registration and De-registration of Citizens of the Russian Federation at Their Place of Stay or Place of Residence in Moscow or the Moscow Oblast.  The note to clause 2 "b" of Section III of the aforementioned Rules, which in essence duplicates the norms approved by Decree of the Government of Moscow No. 922 of October 11, 1994, establishes that citizens residing outside of the boundaries of Moscow and the Moscow Oblast who have arrived in Moscow or the Moscow Oblast to residential space belonging to them on the basis of a property right shall present a receipt on the payment of the fee either to the city budget – in accordance with the Law of the City of Moscow of September 14, 1994, or to the oblast, city and district budgets – in accordance with Directive of the Head of the Administration of the Moscow Oblast No. 638 of July 7, 1994.

Insofar as the aforementioned norms of Joint Decree No. 1030-43 of December 26, 1995 reproduce the norms of the disputed Decree of the Government of Moscow No. 922 of October 11, 1994, and Directive of the Head of the Administration of the Moscow Oblast No. 638 of July 7, 1994 reproduces the provisions of the disputed Directives No. 83 of February 9, 1993 and No. 439 of May 6, 1994, and in this respect the reproduced norms affect the constitutional rights and liberties of citizens, the aforementioned acts, by virtue of part two of Article 43 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, may be the subject of consideration at the Constitutional Court of the Russian Federation.

2. The Statute on the Uniform Procedure for the Consideration of Questions Concerning the Permanent Registration and De-registration of the Population in Moscow and the Moscow Oblast, as approved by Decree of the Government of Moscow and the Government of the Moscow Oblast No. 393-14 of May 3, 1995, which establishes an exhaustive list of categories of citizens entitled to permanent registration in Moscow and the Moscow Oblast, was declared to have lost force by Decree of the Government of Moscow and the Government of the Moscow Oblast No. 1030-43 of December 26, 1995.  In connection with the adoption of the Regulations for the Registration and De-registration of Citizens of the Russian Federation at Places of Stay or Places of Residence in the Russian Federation and the List of Officials Responsible for Registration, as approved by Decree of the Government of the Russian Federation No. 713 of July 17, 1995, clause 29 of the Temporary Provision on Stays and Assignment to a Permanent Place of Residence in the Stavropol Krai has also lost force.

As is clear from the additionally received documents, Laws of the Voronezh Oblast of 9 June 1995, 18 July 1995 and February 8, 1996 introduced amendments to Law of the Voronezh Oblast of March 10, 1995 On the Regulation of the Migration Process in the Territory of the Voronezh Oblast.  As a result, the disputed norms of the Law of the Voronezh Oblast of March 10, 1995 are absent in the last version thereof, and therefore have lost force, like the Temporary Statute on the Procedure for the Registration of Citizens Arriving for Permanent or Temporary Residency to the Territory of the Voronezh Oblast – in connection with the approval of a new statute.

In accordance with part two of Article 43 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, proceedings on the case with respect to testing the constitutionality of the aforementioned normative acts which have lost force must be terminated.

The disputed normative acts which were adopted by the administration of the city of Voronezh are acts of bodies of local self-government.  The resolution of the question of their constitutionality is not classified as under the competence of the Constitutional Court of the Russian Federation (Article 125 of the Constitution of the Russian Federation, part one of Article 3 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation).  Therefore, on the basis of Article 68 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, proceedings on this part of the case must be terminated.

3. Human and civil rights and liberties are guaranteed in the Russian Federation according to generally recognized principles and norms of international law and in accordance with the Constitution of the Russian Federation (Article 17, part 1, of the Constitution of the Russian Federation).  According to Article 27 (part 1) of the Constitution of the Russian Federation, every person who is lawfully located in the territory of the Russian Federation shall have the right to move freely, and choose his/her place of stay and residency.  The freedom of movement and selection of a place of residency are also set forth in the International Pact on Civil and Political Rights (Article 12), other international and international law acts, including Protocol No. 4 to the European Convention on Human Rights (Article 2).

The freedom of movement, choice of place or stay and residence is a substantial element of personal freedom, a condition for a person's professional and spiritual development.  The Russian Federation, as a social state, must conduct policy ensuring this development.

The normative content of the above-mentioned constitutional right includes: 1) freedom of movement for all in the territory of the Russian Federation; 2) freedom of choice of a place of stay; and 3) freedom of choice of a place of residence.  The disputed normative acts directly affect the right to choose a place of residence.  This right assumes a citizen's right to choose the residential premises in which he will permanently or primarily reside either as its owner or in accordance with a rent or lease agreement, or on other grounds envisaged in legislation of the Russian Federation.  The concept of a place of residence is described in Article 20 of the Civil Code of the Russian Federation, according to which a place of residence is understood to be a citizen's place of permanent or primary residence.

The right to choose freely the place of residence is held by citizens from birth and, like other fundamental rights and liberties, is inalienable (Article 17, part 2, Constitution of the Russian Federation; Article 150 of the Civil Code of the Russian Federation).  At the same time, this right is not absolute in nature and is subject to legal regulation with account taken of how its exercise may lead to a violation of the rights and liberties of other persons, which is inadmissible by virtue of Article 17 (part 3) of the Constitution of the Russian Federation.

Therefore the exercise of the aforementioned right may be accompanied by the introduction of justifiable restrictions in accordance with the grounds and procedure established by Articles 5 (part 3) and 56 of the Constitution of the Russian Federation.  The legal regime for restrictions on the right to choose a place of residence may be introduced only by federal law to the extent that this is necessary in order to protect the foundations of the constitutional order, morality, health, the rights and interests of other persons, and the provision of defense of the country and security of the state (Article 55, part 3, of the Constitution of the Russian Federation).  Also, according to part three of Article 12 of the International Covenant on Civil and Political Rights, the right to freedom of movement and the freedom to chose a place of residence may not be the object of any restrictions, except those envisaged by laws and necessary for the preservation of state security, public order, health or morality of the public or the rights and liberties of other and compatible with the other rights recognized in the Covenant.

Therefore, the general requirement of the Constitution of the Russian Federation and international legal norms is the provision stating that restrictions of the right to the free choice of a place of residence may be established only by law.

The Constitution of the Russian Federation specifically states this requirement with a reference to the fact that human and civil rights and liberties may be restricted only federal law.  Correspondingly the provision of part two of Article 1 of the Law of the Russian Federation of Jun 25, 1993 On the Right of Citizens of the Russian Federation to Freedom of Movement, Choice of Place of State and Residence Within the Borders of the Russian Federation, according to which such restrictions are allowed only on the basis of law, is not subject to expansive interpretation: in this case the concept "law" exclusively covers federal laws, and not laws of constituent entities of the Russian Federation, since otherwise the norms specified would be given a unconstitutional meaning.

Restrictions of citizens' rights to freedom of movement, and choice of place of stay and residence in the process of exercising these rights are connected with the necessity of finding a balance between public and private interests and depend on a number of socioeconomic factors.

The Law of the Russian Federation of June 25, 1993 regulates this sphere of public relations for the purposes of providing necessary conditions for the exercise by citizens of the Russian Federation of their rights and liberties, as well as the performance thereby of duties to other citizens, the state and society.  The Law contains a list of grounds for the restriction of the rights of citizens to the freedom of movement, the choice of a place of stay and residence (Article 8) and introduces a system of registration for citizens, establishing a notification procedure for registration, under which registration or the absence of such may not serve as a ground for the restriction or condition for the exercise of other rights and liberties (part two of Article 3).

The right to choose a place of residence constitutes a part of the freedom of personal self-determination.  Bodies of state authority are empowered only to register the result of an act of free expression of a citizen's will in the choice of a place of residence.  It is for this reason that registration may not be permissive in nature or serve as a ground for the restriction of citizen's right to choose a place of residence.  The notification registration of a citizen of the Russian Federation at a place of residence is an allowable restriction of the right to choose a place of residence and in accordance with Article 6 of the Law of the Russian Federation of June 25, 1993 obliges to citizen only to contact the official responsible for registration within seven days from the day of arrival to the new place of residence, presenting for this his/her passport and the document which is grounds for the citizen moving into the residential premises.

Pursuant to the Law of the Russian Federation of June 25, 1993 the Government of the Russian Federation approved the Regulations for the Registration and De-registration of Citizens of the Russian Federation at Their Place of State and Place of Residence Within the Borders of the Russian Federation (Decree No. 713 of July 17, 1995).

At the same time the provision of public and environmental security, specially protected naturally territories, and administrative legislation are under the joint jurisdiction of the Russian Federation and constituent entities of the Russian Federation (Article 72, clauses "b", "e" and "k" of part 1 of the Constitution of the Russian Federation).  Therefore, along with the Russian Federation bodies of authority of the constituent entities of the Russian Federation also have the right to adopt registration rules, without changing, however, its legal regime and not permitting restrictions of civil rights and liberties.

The provisions established by the normative acts of the Government of Moscow, the Government of the Moscow Oblast and the Head of the Administration of the Moscow Oblast on the payment of a fee and the presentation of a receipt on its payment as a condition for a citizen's registration contravenes the Law of the Russian Federation of June 25, 1993 and the Regulations for the Registration and De-registration of Citizens of the Russian Federation at Places of Stay and Places of Residence within the Boundaries of the Russian Federation and in fact establish a completely different – permission-based  - legal regime for the registration of citizens, which does not correspond to the fundamental right of all who are lawfully located in the territory of the Russian Federation, to choose freely the place of residence.  The refusal to register on the basis of the disputed act, in addition, is in nature a sanction for the failure to pay the established fee.

The norms hinder the realization of a number of fundamental civil rights and liberties as declared and guaranteed by the Constitution of the Russian Federation, specifically the right to elect and be elected to bodies of state authority and bodies of local self-governance, and to participate in a referendum; the right to use freely ones abilities and property for entrepreneurial and other economic activity not prohibited by law; the right freely and fully to use and dispose of property, to move goods, services and financial resources freely; and the right to social security, the receipt of medical assistance, and preschool and secondary education.

The exercise of the constitutional right to choose a place of residence may not depend on the payment or non-payment of any taxes or fees, since the fundamental rights of citizens of the Russian Federation are guaranteed by the Constitution of the Russian Federation without any conditions of a fiscal nature.  Thus, any refusal to register in connection with a citizen's failure to pay taxes or other fees contravenes the Constitution of the Russian Federation (Article 27, part 1).

4. In the opinion of the Head of the Republic of Komi, Article 2 of the Law of the City of Moscow of September 14, 1994 and Directive of the Head of the Administration of the Moscow Oblast No. 83 of February 9, 199 and No. 439 of May 6, 1994 do not conform to Articles 4 (part 2) and 76 (part 5) of the Constitution of the Russian Federation, since the Law of the Russian Federation of December 27, 1991 On the Fundamental Principles of the Tax System in the Russian Federation do not envisage a levies on citizens for the development of infrastructure and licensing fees to invite specialists from other cities.

The constitutionality of Article 2 of the Law of the City of Moscow is also disputed in the complaints from citizens V.I. Kutsyllo and R.S. Klebanov.  In their opinion, the norms of that article, both in their literal sense and in the sense given to the by the previously named Decrees of the Government of Moscow, assume that the payment of the duty acts as a condition for the registration of citizens at their place of residence.

The establishment of general principles for taxation and levies in the Russian Federation is under the joint competence of the Russian Federation and constituent entities of the Russian Federation (Article 72, clause 1 "?", of the Constitution of the Russian Federation).

The Constitution of the Russian Federation does not prohibit constituent entities of the Russian Federation, prior to the issue of federal laws, to implement their own legal regulation of subjects of joint competence with the Russian Federation, including the establishment of general principles for taxation and levies, but, however, an act of a constituent entity of the Russian Federation adopted beforehand must after the issue of a federal law be brought into accord with it.  Therefore, the possibility for constituent entities of the Russian Federation to establish their own taxes and levies, but only within the limits determined by the Constitution of the Russian Federation, and with observance of the fundamental rights and liberties of citizens.

Meanwhile, a tax or levy may only be established by a law.  Taxes collected not on the basis of a law may not be considered "lawfully established" (Article 57 of the Constitution of the Russian Federation).  This provision has significance both in the evaluation of the constitutionality of a law, including laws of constituent entities of the Russian Federation which establish a specific tax, and in the evaluation of the constitutionality of the power of a body of state authority to establish a tax.

In accordance with clause 2 of Section Tow "Concluding and Transitional Provisions" of the Constitution of the Russian Federation, the Law of the Russian Federation of December 27, 1991 On the Fundamental Principles of the Tax System in the Russian Federation is subject to application only to the extent that it does not contravene the Constitution of the Russian Federation. According to its Article 2, all types of payments (taxes, levies, duties and other payments) shall be collected only in accordance with the procedure established by law.  However, the Head of the Administration of the Moscow Oblast, despite this requirement, established a fee for settlement in the Moscow Oblast with its Directives No. 83 of February 9, 1993, No. 439 of May 6, 1994 and No. 638 of July 7, 1994.  Moreover that last of these, the effective directive, also does not conform to Article 49 of the Civil Code of the Russian Federation, according to which the issue of a license is only possible in relation to strictly defined types of activity which are established by federal law.

The Constitution of the Russian Federation excludes the possibility of bodies of executive authority establishing taxes and levies.  By establishing a licensing fee for settlement in the Moscow Oblast, the Head of the Administration of the Moscow Oblast exceeded the limits of his authorities and in violation of Article 57 of the Constitution of the Russian Federation interfered in the sphere of activity of the legislator.

5. In regulating taxation, constituent entities of the Russian Federation must to a full extent take guidance form the requirements of Article 18 of the Constitution of the Russian Federation, which state that human and civil rights and liberties shall determine the sense, content and application of laws.  In laws of constituent entities of the Russian Federation which establish taxes and duties, constitutional principles such as the principle of equality (Article 19, part 1), and the principle of restriction of rights and liberties proportional to constitutionally significant goals (Article 55, part 3), must be taken into account.

In order to ensure the regulation of taxation in accordance with the Constitution of the Russian Federation, the principle of equality requires that account be taken of the actual ability to pay tax based upon the legal principles of fairness and proportionality.  The principle of equality in a social state in relation to the obligation to pay lawfully established taxes and duties (Articles 6 (part 2) and 57 of the Constitution of the Russian Federation) assumes that equality must be achieved by way of the fair redistribution of income and differentiation of taxes and levies.

At the same time, Article 2 of the Law of the City of Moscow of September 14, 1994 does not take into account the financial potential of various taxpayers and actually establishes a "pillow" [?] system of taxation, which with respect to an excessively high tax means the collection of a substantially great portion of the property of underprivileged and less-privileged citizens and a lesser portion of the property of more wealthy citizens.

Taxation always means a certain limitation of the property right enshrined in Article 35 of the Constitution of the Russian Federation.  In connection with this, the provision of Article 55 (part 3) of the Constitution of the Russian Federation stating that human and civil rights an liberties may be limited by federal law only to the extent that this corresponds to certain constitutionally significant purposes, i.e. proportionally, commensurate to the, extends fully to laws of the Russian Federation on taxes and levies.  Taxation which paralyzes citizens' exercise of their constitutional rights must be declared disproportionate.  Therefore, where taxes and levies are excessive the problem of their differentiation in connection with ensuring the principles of equality and fairness acquires special significance.

In introducing their own taxes and levies, constituent entities of the Russian Federation must take into account that pursuant to Article 75 (part 3) of the Constitution of the Russian Federation the system of taxes collected to the federal budget, and the general principles of taxation and levies in the Russian Federation, are established by federal law.  From this provision it also follows that constituent entities of the Russian Federation do not have the right to determine tax withholdings arbitrarily, in violation of the principles enshrined in the Constitution of the Russian Federation and federal law.  The establishment of taxes and levies in the absence of any restrictions would contravene the purposes of a social state declared in Article 7 of the Constitution of the Russian Federation, the policy of which must be directed towards the creation of conditions ensuring a dignified life and free human development.  The inadmissibility of laws of constituent entities of the Russian Federation establishing arbitrary tax withholdings flows also from the principle of the unified financial policy – including tax policy – which is enshrined in Article 114 (clause "b" of part 1) of the Constitution of the Russian Federation.

Thus, Article 2 of the Law of the City of Moscow of September 14, 1994 conforms to the Constitution of the Russian Federation (Article 73) with respect to the right of a constituent entity of the Russian Federation  to establish its own taxes and duties and does not conform to the Constitution of the Russian Federation (Articles 7, 19 (part 1), 55 (part 3) and 57) to the extent that it violates the constitutional principles of equality and the limitation of fundamental human and civil rights and liberties proportional to constitutionally significant purposes, and also distorts the sense of the general principle of taxation in the Russian Federation.

6. Clause 21 of the Temporary Statute on Stays and Assignment to a Permanent Place of Residence in the Stavropol Krai, as approved by Decree of the State Duma of the Stavropol Krai of October 6, 1994 (as amended on November 24, 1994), establishes that citizens of the Russian Federation have the right to choose a place of residence in all of the populated areas of the Stavropol Krai except the city of Kavkazkiye Mineralnye Vody and neighboring populated areas only with a special permit issued only by the heads of the administrations of the corresponding districts and cities on the basis of recommendations of specially formed commissions under the head of the administrations and within the limits of annual quotas equal to 0.5% of the number of residents of the relevant populated area.

The Decree of the President of the Russian Federation of March 28, 1992 On the Specially Protected Ecological-Resort Region of the Russian Federation gave the district of Kavkazskiye Mineralnye Vody the status of a specially protected ecological-resort region of the Russian Federation having federal significance.  In accordance with the Federal Law of February 23, 1995 On Natural Health Resources, Medicinal Spa Localities and Resorts (Articles 1 and 3), resorts of federal significance, i.e. a specially protected natural territory which has been used for medicinal and prophylactic purposes, are under the jurisdiction of federal bodies of state authority; the procedure and special considerations for the functioning of specific resorts are determined by the state on the resort in question; depending on the significance of the resort, the statute on it may be approved by the Government of the Russian Federation or by a relevant body of executive authority of the constituent entity of the Russian Federation; the Government of the Russian Federation establishes the borders and the regime for districts for the sanitation protection of resorts having federal significance, determining in this respect a regime for business, residence and use of natural resources which ensures the protection and preservation of natural health resources and the health-treatment locality, including neighboring plots, from pollution and premature exhaustion.

With the aforementioned Edict of the President of the Russian Federation the Government is instructed to take measures to regulate the mechanical growth of the population in the region of Kavkazkiye Mineralnye Vody.  At the same time, neither the Edict itself, nor the Decrees of the Government of the Russian Federation adopted in accordance therewith, vested any authorities for the decision of this question to the bodies of the authority of the Stavropol Krai.

By introducing a quota on settlement in the cities of Kavkazskiye Mineralnye Vody, the State Duma of the Stavropol Krai established limits on the choice of a place of residence, which may be made only by federal legislation, and also interfered in the sphere of regulation of human and civil rights and liberties which are under the exclusive competence of the Russian Federation (clause "c" of Article 71 of the Constitution of the Russian Federation).  In addition, the procedure for the exercise of the constitutional right to freedom of movement and the choice of a place of residence was determined not by law, but by the Temporary Statute approved by the Decree of the Duma.  Thus, clause 21 of the Temporary Statute on Stays and the Assignment to a Permanent Place of Residence in the Stavropol Krai does not conform to the Constitution of the Russian Federation from the standpoint of the delimitation of powers between bodies of state authority of the Russian Federation and bodies of state authority of constituent entities of the Russian Federation, as well as based on the content of the norms and the form of the normative act.

Clause 3 of the Temporary Statute establishes that the right of citizens to choose a place of residence in the territory of the Stavropol Krai may be realized on a paid basis – with compensation to the krai or local budgets of additional expenses caused by the necessity of the employment, household and social-cultural integration of the persons newly arrived in the territory of the krai.  Payment of the corresponding amounts as a condition for registration of the citizens in the territory of the krai, which gives such registration a permissive character, restricts in violation of Article 55 (part 3) of the Constitution of the Russian Federation the fundamental right of every person who is lawfully located in the territory of the Russian Federation freely to choose a place of residency (Article 27, part 1, of the Constitution of the Russian Federation).

On the basis of the foregoing and taking guidance from Articles 72, 74, 75, 87 and 100 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, the Constitutional Court of the Russian Federation

hereby rules:

1. That the following are hereby declared as not conforming to the Constitution of the Russian Federation, its Articles 27 (part 1), 55 (part 3) and 57: clause 1 of the Procedure for the Consideration of Questions Concerning the Permanent Registration (Registration) of Citizens Residing Outside of the Boundaries of the City of Moscow and the Moscow Oblast who have Arrived for Residency in the City of Moscow to Residential Space Belonging to them and the Basis of Property Ownership, as approved by Decree of the Government of Moscow No. 922 of October 11, 1994; clause 1 of Directive of the Head of the Administration of the Moscow Oblast No. 83 of February 9, 1993 On the Approval  of the Procedure for the Consideration of Applications for the Acquisition of Licenses for the Right to Invite Specialists from Other Cities to the Moscow Oblast; Directive of the Head of the Administration of the Moscow Oblast No. 439 of May 6, 1994 On the Cost of Licenses; clause 1 of Directive of the Head of the Administration of the Moscow Oblast No. 638 of July 7, 1994 On the Approval of the Procedure for the Consideration of Applications for the Acquisition of Licenses for the Right for Legal Entities and Individuals Who have Chosen the Moscow Oblast as a Place of Stay or Residence to Invite to the Moscow Oblast Specialists and Laborers from Other Cities, and the provisions of the aforementioned Procedure, as reproducing the provisions of Directives of the Head of the Administration of the Moscow Oblast No. 83 of February 9, 1993 and No. 439 of May 6, 1994; the note to clause 2 "b" of Section III of the Regulations for the Registration and De-registration of Citizens of the Russian Federation at Their Place of Stay or Place of Residence in Moscow or the Moscow Oblast, as approved by Decree of the Government of Moscow and the Government of the Moscow Oblast No. 1030-43 of December 26, 1995 with respect to the part reproducing in essence the norms approved by Decree of the Government of Moscow No. 922 of October 11, 1994.

2. That Article 2 of the Law of the City of Moscow of September 14, 1994 On the Fee for Compensation of the Expenses of the City Budget for the Development of the Infrastructure of the City and to Provide Social and Household Conditions for Citizens who have Arrived to the City of Moscow for Residence is hereby recognized as conforming to the Constitution of the Russian Federation with respect to the part envisaging the right of the Moscow City Duma to establish taxes and duties within the bounds determined by the Constitution of the Russian Federation and federal laws.

That Article 2 of the Law of the City of Moscow of September 14, 1994 is hereby declared not in conformity with the Constitution of the Russian Federation, its Articles 7, 19 (part 1), 55 (part 3), to the extent that it contravenes the principles of equality, of the proportionality of the limitation of civil and human rights and liberties to constitutionally significant goals, as well as of a social state.

3.  That clauses 3 and 21 of the Temporary Provision on Stays and Assignment to a Permanent Place of Residence in the Stavropol Krai, as approved by Decree of the State Duma of the Stavropol Krai No. 118-8 of October 6, 1994 (as amended on November 24, 1994) are hereby declared not conforming to the Constitution of the Russian Federation.

Due to the high economic and recreational burden in the region of the Caucasian Mineralnye Vody, in accordance with the Federal Law of February 23, 1995 On Natural Health Resources, Health and Recovery Localities and Spas and Edict of the President of the Russian Federation No. 309 of March 27, 1992 On the Specially Protected Ecological-Spa Region of the Russian Federation, the Government of the Russian Federation must take measures to ensure the protection and preservation of the natural health resources of the Caucasian Mineralnye Vody.

4. In accordance with part three of Article 79 and part two of Article 87 of the Federal Constitutional Court of the Russian Federation, normative acts or certain provisions thereof which are declared unconstitutional by this Ruling shall lose force, which is grounds for the revocation in accordance with the established procedures of the provisions of other normative acts reproducing their, or containing identical, provisions.

5. In accordance with part two of Article 100 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation the cases of citizens V.I. Kutsyllo and R.S. Klebanov which were resolved by courts of general jurisdiction and bodies of executive authority on the basis of normative acts or their individual provisions which were declared unconstitutional by this Ruling shall be subject to review in accordance with the established procedure.

6. That, in accordance with part two of Article 43 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, proceedings on the case are hereby terminated with respect to the part testing the constitutionality of Decree of the Government of Moscow and the Government of the Moscow Oblast No. 3939-14 of May 3, 1995, which approved the Statute on the Unified Procedure for the Consideration of Questions Concerning the Permanent Registration and De-registration of Persons in Moscow and the Moscow Oblast; norms of the Law of the Voronezh Oblast of March 10, 1995 On the Regulation of the Migration Process in the Territory of the Voronezh Oblast and clause 18 of the Temporary Statute on the Procedure for the Registration of Citizens who have Arrived for Permanent or Temporary Residency to the Territory of the Voronezh Oblast, clause 29 of the Temporary Statute on Stays and Assignment to a Permanent Place of Residence in the Stavropol Krai, as approved by Decree of the State Duma of the Stavropol Krai No. 118-8 of October 6, 1994 (as amended on November 24, 1994), since the aforementioned normative acts have lost force and are not reproduced in other acts.

7. That, in accordance with Article 68 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, proceedings on the case are hereby terminated in respect of that part testing the constitutionality of the Statute on Participatory Shares of Enterprises, Organizations, Private Firms and Individuals Participating in the Construction of Housing in the City of Voronezh, as adopted by the Administration of the City of Voronezh, and the Decision of the Collegium under the Head of the Administration of the City of Voronezh No. 13 of July 14, 1994, by virtue that the Constitutional Court of the Russian Federation does not have jurisdiction over this question.

8. That, according to parts one and two of Article 79 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, this Ruling is final, is not subject to appeal, enters into force without delay after its promulgation and is effective directly.

9. That, according to Article 78 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, this Ruling shall be published without delay in the Sobraniye zakonodatelstva Rossiiskoi Federatsii, Rossiiskaya gazeta, other official publications of bodies of state authority of the Russian Federation and constituent entities of the Russian Federation, which are affected by this Ruling.  The Ruling must also be published in Vestnik Konstitutsionnogo Suda Rossiiskoi Federatsii.

Constitutional Court of the Russian Federation
No. 9-P

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SPECIAL OPINION

of Judge of the Constitutional Court of the Russian Federation M.V. Baglai on the case testing the constitutionality of a number of normative acts of the city of Moscow and the Moscow Oblast, the Stavropol Krai, the Voronezh Oblast and the city of Voronezh, regulating the procedure for the registration of citizens arriving to reside permanently in those regions.

The freedom to choose one's place of permanent residence is one of the fundamental civil rights throughout the entire state, regardless of whether or not it is a unitary or federative state.  However, this freedom, like all others, may be realized only provided that the rights and liberties of other persons are not violated.  This general rule is set forth in Article 17 (part 3) of the Constitution of the Russian Federation.  As applied to the freedom to choose one's place of permanent residence, this, in particular, means that during uncontrolled mass migration temporary restrictions of this freedom are possible, for it is clear that such migration creates serious difficulties for the citizens residing in that city or locality.  A constituent entity of the Russian Federation must protect their rights.  The defense of rights and liberties, like ensuring public security, is under the joint jurisdiction of the Russian Federation and constituent entities of the Russian Federation (part 1, clause "b" of Article 72 of the Constitution of the Russian Federation).  Of course, such protection may also be implemented through legal regulation, but in this case only in the form of a law.  However, it is difficult to imagine how effective this protection can be if in the absence of a federal law a constituent entity of the Russian Federation, having encountered a mass relocation of citizens to one locality, waits for the adoption of a federal law, and, moreover, its legislative and executive bodies are accountable to its citizens for their well-being.

The establishment of fees connected with the development of city's infrastructure, as the Constitutional Court has recognized, does not contravene the Constitution of the Russian Federation.  These fees, however, must be not be excessive and must envisage certain exemptions, which does not mean a direct link with income.  One cannot assume that the rejection of excessiveness stems directly from the principle of equality of citizens or from the conception of a social state, which is set forth in Article 7 of the Constitution of the Russian Federation.  A progressive scale for taxation is characteristic of only certain types of taxes, while many other fees (fees for transport facilities, etc.) do not envisage this.  In selecting a form of taxation, the legislator must proceed from the principles of goodness and fairness set forth in the introductory provisions to the Constitution of the Russian Federation.  It would be extremely unjust, for instance, if any acts were to make moving to Moscow for permanent residency difficult for a citizen who has been awarded a medal "For the Defense of Moscow".  Although a rule-of-law state is based on formal equality, the equality of citizens and their liberties must not be taken to extremes, limited by the formal equality of legal statuses.  The limitation of the rights of one group of persons may constitute a lawful defense of the rights of other persons, and fair exemptions for certain citizens correct the ethical flaws of formal equality between all citizens.  This truth, recognized by all democratic states, retains its significance both in relation to the free selection of a place of residency and in the establishment of fees connected therewith, if they do not envisage reasonable differentiation.

4 April 1996 M.V. Baglai
 

Notes:

The European Convention on Human Rights (text posted at Hellenic Resources Institute)
http://www.hri.org/docs/ECHR50.html#P4 (Protocol 4)
http://www.hri.org/docs/ECHR50.html (full text)

International Covenant on Civil and Political Rights (text posted at the Fletcher School of Law and Diplomacy)
http://www.tufts.edu/departments/fletcher/multi/texts/BH498.txt
 

Unofficial translation by John Fowler.
 

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