Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the parts of item 3 of the Law of the
Republic of Lithuania "On Appending and Amending the Law of the
Republic of Lithuania "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" ", adopted 15 July 1993, by which Parts 5 and 6 of
Article 4 of the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" of 18 June 1991 have been amended, as well as items
14, 15, 16, 17, 18 and 19, by which Article 12 of said Law has
been appended by items 10, 11, 12, 13, 14 and 15, with the
Constitution of the Republic of Lithuania
27 May 1994, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed from the Justices of the Constitutional Court Algirdas
Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Pranas Vytautas
Rasimavičius, Stasys Stačiokas, Teodora Staugaitienė, Stasys
Šedbaras and Juozas Žilys,
the secretary of the hearing Sigutė Brusovienė,
the petitioner - Andrius Kubilius and Zenonas Juknevičius,
representatives of a group of the Seimas members,
the party concerned - Seimas member Mykolas Pronckus and
Algirdas Taminskas, representatives of the Seimas,
pursuant to Part 1, Article 102 of the Constitution of the
Republic of Lithuania and Part 1, Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its
public hearing of 27 April - 3 May 1994 conducted the
investigation of Case No 12/93 subsequent to the petition
submitted to the Court by a group of the Seimas of the Republic
of Lithuania members requesting to investigate the compliance
of the parts of item 3 of the Law of the Republic of Lithuania
"On Appending and Amending the Law of the Republic of Lithuania
"On the Procedure and Conditions of the restoration of the
Rights of Ownership to the Existing Real Property" ", adopted
15 July 1993, by which Parts 5 and 6 of Article 4 of the Law
"On the Procedure and Conditions of the Restoration of the
Rights of Ownership to the Existing Real Property" of 18 June
1991 have been amended, as well as items 14, 15, 16, 17, 18 and
19, by which Article 12 of said Law has been appended by items
10, 11, 12, 13, 14 and 15, with the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
The petitioner - a group of the Seimas members - requests
the Constitutional Court to investigate if the parts of item 3
of the Law of the Republic of Lithuania "On Appending and
Amending the Law of the Republic of Lithuania "On the Procedure
and Conditions of the Restoration of the Rights of Ownership to
the Existing Real Property" " (hereinafter this law shall be
referred to as "the Law in dispute"), adopted 15 July 1993, by
which Parts 5 and 6 of Article 4 of the Law "On the Procedure
and Conditions of the Restoration of the Rights of Ownership to
the Existing Real Property" of 18 June 1991 have been amended,
as well as items 14, 15, 16, 17, 18 and 19, by which Article 12
of said Law has been appended by items 10, 11, 12, 13, 14 and
15 (Official Gazette "Valstybės Žinios", 1993, No 32-275), do
not contradict the Constitution of the Republic of Lithuania.
In the request, the petitioner specifies that, all the
conditions established in parts 5 and 6 of Article 4 which has
been amended by the Law in dispute, may be applied only upon
the restoration of land so that it would not remain
uncultivated. Besides, in this Article claimants to land are
categorized according to the type of activities (whether they
are members of agricultural company or not), and this is
related to the right to the restoration of property, even
though, under Article 29 of the Constitution, all people shall
be equal before the law. The petitioner maintains that the
Seimas by supplements to Article 12, which were made by the Law
in dispute, "expanded the scope of the land not to be returned,
basing agriculture on collective property, even though in
Article 46 of the Constitution it is established that
Lithuania's economy shall be based on the right to private
ownership".
The petitioner's representatives have explained that by
the Act of 11 March 1990 the Independent State of Lithuania has
been restored. In this Act it is declared that the territory of
Lithuania is integral and indivisible, and the constitution of
any other State has no jurisdiction within it.
In the Law "On the Reinstatement of the 12 May 1938
Constitution of Lithuania", the Supreme Council of the Republic
of Lithuania stated, that the May 12, 1938 Constitution of
Lithuania had been suspended illegally when on June 15, 1940
the Soviet Union committed aggression against the independent
state of Lithuania and ,thereby, terminated the validity of the
20 April 1978 Constitution of the Lithuanian SSR (Basic Law),
the 7 October 1977 Constitution of the USSR (Basic Law), as
well as the fundamentals of the legislation of the USSR and
Union Republics, also other USSR legislation on the territory
of the Republic of Lithuania. The laws which had been adopted
on their basis lost their validity, Article 4 of the Land Code
of the Lithuanian SSR among them, in which it is declared that:
"In compliance with the Constitution of the USSR and the
Constitution of the Lithuanian SSR, land is state property -
common property of all the Soviet people".
In the Law "On the Reinstatement of the 12 May 1938
Constitution of Lithuania" it was determined that the
reinstatement of the 12 May 1938 Constitution of Lithuania does
not in itself re-establish other laws in effect in the Republic
of Lithuania prior to 15 June 1940. This provision is
significant because it has taken into consideration the changes
that took place, and the necessity on the basis of these laws
to regulate property relations by laws. Former property
relations are not denied.
Their undeniability was established in the provision of
the Supreme Council adopted on 15 November 1990: "To determine
that citizens of Lithuania are entitled to the right to restore
their existing property in kind in the scope and procedure
prescribed by laws, and in case when there is no such
possibility, to receive compensation".
Afterwards, in the first part of Article 1 of the 18 June
1991 Law "On the Procedure and Conditions of the Rights of
Ownership to the Existing Real Property" nationalization of
property was compared to its unlawful socialization, and it was
specified that property was not the ownership of State, public
or other organizations, but it was only at their disposal.
Therefore, the essence of the contents of the first part of
Article 45 of the Provisional Basic Law was the establishment
of sovereign powers of Independent State of Lithuania on the
whole territory of the State and not the acceptance of the 21
June 1940 Declaration of the People's Seimas on the
Nationalization of Land.
In the opinion of the petitioner's representatives,
persons enumerated in the first part of Article 1 of the 18
June 1991 Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" are still the owners, only their right of property
ownership has been infringed upon, i. e. they have been
deprived of the opportunity to use and manage the property.
Therefore, their property may be seized only in conformity with
the requirements set forth in Article 23 of the Constitution.
In the opinion of the representatives of the petitioner ,
Parts 5 and 6 of Article 4 of the Law in dispute contradict
Article 23 of the Constitution, as they provide for the seizure
of property i. e. factual irretrievability in case when there
is no public interest. The legislator established formal
obstacles which can be overcome only by persons who have been
given permission by district Board or had had an exclusive
social position in the past.
The representatives of the petitioner have also explained,
that the obligatory land lease restricts the owner's rights.
This amendment to the Law in dispute also fails to comply with
the provision of Article 46 of the Constitution that
Lithuania's economy shall be based on the right to private
ownership, freedom of individual economic activity, and
initiative. Lease of land grants privileges to the persons
specified in the fifth part of Article 4 of the Law in dispute
on the basis of their social position, and this contradicts
Article 23 and 29 of the Constitution.
The petitioner's representatives maintain that the
supplements to Article 12 - items 10, 11, 12, 13, 14, and 15 -
adopted by the Law in dispute contradict the first and fourth
parts of Article 46 of the Constitution, because they establish
monopoly in agriculture (support state farms) and fail to
protect freedom of fair competition.
The representatives of the petitioner have submitted the
following explanations concerning Article 12:
1. The provision of item 10, Article 12 is not in
compliance with Article 46 of the Constitution, as it gives
preference to companies, i. e. collective economic activity and
makes the owner, to whom the rights of ownership to land have
not been restored yet, lease it for agricultural enterprises
without setting any terms. The needs of the company are
identified with the needs of society, therefore, in this sense,
the provision of item 10, Article 12 of the Law in dispute
fails to comply with Article 23 of the Constitution as well.
2. By item 11 of Article 12, an attempt is made to base
Lithuania's economy on the right to collective (state)
ownership, as land areas specified in it are used for the needs
of companies and forest districts but not for the interests of
the whole state . By said item, the preference is given to
horses, and not to the needs of society.
3. According to item 12 of Article 12, the priority goes
not to the society, but to a specific enterprise. The profit
gained by a man or a specific enterprise is not the need of
society in the context of Article 23 of the Constitution.
4. The provision of item 13, Article 12 that the land
shall be bought out for the usage of rural residents, means
common, collective and not private economic activity. In rural
settlements, land for the construction of residential houses is
bought out even without having construction projects, the
procedure of their confirmation and the client.
5. Item 14 of Article 12 itself does not need any
motivation, because rivers and lakes may be, without any
criteria, ascribed by the Government to water bodies not
subject to privatization. Besides, it is not the restoration of
the rights of ownership which is regulated by this item, but
privatization.
Generally, rivers and lakes must be state property,
however, it is not the Government who should resolve this
issue.
6. By item 15 of Article 12, at the expense of the owner,
the boundaries of the land not liable to be returned are
extended, and it is going to be granted for farmers-tenants,
and not to satisfy the needs of the society. This fact
contradicts Article 23 of the Constitution, because the land is
bought out not for the public benefit but for the advantage of
a specific person.
The representatives of the party concerned have denied the
validity of the petitioner's request. They have explained that
from the very restoration of the Independent Sate of Lithuania,
i. e. after the Act of 11 March 1990, all[AG1] laws and
resolutions adopted by the Supreme Council of Lithuania have
been declaring that the entire land is state property. For
instance, in Article 4 of the 11 March 1990 Law "On the
Reinstatement of the 12 May 1938 Constitution of Lithuania" it
is established that the reinstatement of said Constitution did
not in itself re-establish other laws in effect in the Republic
of Lithuania prior to 15 June 1940".
The representative of the party concerned has stated that
by the 11 March 1990 Law of the Republic of Lithuania "On the
Provisional Basic Law of the Republic of Lithuania" the
validity of the 12 May 1938 Constitution of Lithuania was
suspended, the Provisional Basic Law of the Republic of
Lithuania was ratified, and it was established that, on the
territory of the Republic of Lithuania, previous laws and other
legal acts of Lithuania would be further in effect, providing
they did not contradict the Provisional Basic Law of the
Republic of Lithuania.
In the first part of Article 45 of the Provisional Basic
Law it is determined that the land, its mineral resources,
inland and territorial waters, flora and fauna, and other
natural resources shall be the national wealth and exclusive
property of the Republic of Lithuania, whereas in the first
part of Article 46 it is specified that property of the
Republic of Lithuania that is state property may, with or
without compensation, become private property of citizens or
their groups according to the procedures established by law.
In the opinion of the representatives of the party
concerned, provisions of the Provisional Basic Law in respect
of the competence of the Supreme Council to regulate property
relations in the Republic by legislative means, set forth in
item 4 of the second part of Article 78 of said Law,
establishes the state's right of ownership to land. However, it
may not be stated categorically that the owner of the
nationalized property is state. If property were its ownership,
it would have been sufficient to adopt a law concerning its
transferral to persons. However, the act of unconditional
restitution has not been adopted either, therefore, it would
not be proper to state that the rights of former owners have
been violated. On 18 June 1991, upon the adoption of the Law
"On the Procedure and Conditions of the Rights of Ownership to
the Existing Real Property", restrictions were imposed.
Besides, there are two groups of such persons: (1) former
property owners that are still alive, (2) legitimate successors
of former owners - their children and grandchildren - although,
not all of them can be considered the owners whose rights have
been violated. The legislator by this Law has provided
possibilities to restore rights of ownership also for those
persons whose documents confirming their property rights have
not survived to these days. If there were no for such Law, the
right of ownership should be proved pursuant to Article 143 of
the Civil Code. The representatives of the party concerned
maintain that persons specified in Article 2 of the 18 June
1991 Law "On the Procedure and Conditions of the Rights of
Ownership to the Existing Real Property" are not the owners
whose rights have been violated, therefore, Article 23 of the
Constitution, which protects the rights of ownership, is not
applicable to them.
While evaluating the restoration of land in property
aspect, it was said that: 1) former land owners restore land
areas which are not debt-laden, though some of them were
debt-laden in the past, 2) recover considerably improved land
areas without paying to anybody for this improvement, 3)
restoration is done at the expense of all the citizens of
Lithuania, 4) part of the former owners, having restored land
areas, destroyed the property which had been created by common
public efforts (watering equipment, etc.). Such restoration of
land contradicts Article 23 of the Constitution.
The representative of the party concerned has also
specified that in Parts 5 and 6, Article 4 of the Law in
dispute "On Appending and Amending the Law of the Republic of
Lithuania "On the Procedure and Conditions of the Rights of
Ownership to the Existing Real Property" " the norm concerning
the land lease is established which ensures the possibility to
restore land for 160. 000 non-rural citizens. The statement
that land must be used for agricultural purposes is based on
the provision of the third part of Article 46 of the
Constitution that the State shall regulate economic activity so
that it serves the general welfare of the people. If there were
no for such restrictions, it would not be possible to carry out
the land reform. In International Law not only the protection
of property rights is established, but also the right of the
State to control, for public interests, the use of property by
laws.
While evaluating supplements to Article 12 of the 18 June
1991 Law "On the Procedure and Conditions of the Rights of
Ownership to the Existing Real Property", representatives of
the party concerned reasoned, that the public interest for land
to be used for orchards and berry-fields (item 10 of Article
12) as well as pig-breading complexes of specialized companies
(item 11 of Article 12) is due to their economic effectiveness,
and the amount of State funds used. Items 10, 11, 12, 13, 14
and 15 have been formulated in accordance with the provisions
of Constitution that the State shall regulate economic activity
so that it serves the general welfare of the people.
The Constitutional Court
holds that:
On March 11, 1990, the Supreme Council of the Republic of
Lithuania adopted the Act on the Restoration of Independent
State of Lithuania and declared thereby that the execution of
sovereign powers of the Lithuanian State, heretofore
constrained by alien forces in 1940, was restored, and
Lithuania was once again an Independent State. It was also
declared that the Constitution of any other State had no
jurisdiction within it.
The Supreme Council, by the 11 March 1990 Law "On the
Reinstatement of the 12 May 1938 Constitution" annulled the 20
April 1978 Constitution of the Lithuanian SSR (Basic Law), also
the fundamentals of legislation of the USSR and Union
Republics, as well as other USSR legislation in the Republic of
Lithuania". The Supreme Council by the same Law reinstated "the
12 May 1938 Constitution of Lithuania throughout the Republic
of Lithuania, suspending those paragraphs and articles
governing the status and powers of the President, the Seimas of
the Republic, the Assembly, the State Council and the State
Supervisory body". The validity of Chapter 8 of the 12 May 1938
Constitution entitled "National Economy", by norms of which
property relations are regulated, was not terminated, and this
meant the restitution of the institute of the right of private
ownership.
The Supreme Council by 11 March 1990 Law "On the
Provisional Basic Law of the Republic of Lithuania terminated
the validity of the 12 May 1938 Constitution of Lithuania and
ratified the Provisional Basic Law of the Republic of
Lithuania. In the first part of Article 44 of this Law it was
established that : "The economy of Lithuania shall be based on
the property of the Republic of Lithuania, which shall consist
of the private property of its citizens, the property of groups
of citizens, and State property" .The provision is significant
primarily because of the fact that the restitution of the
institute of the right to private ownership was established
again, i. e. its continuity with the constitutions of
Lithuanian State was actually recognized. Secondly, three forms
of property that existed and were recognized at that time in
our State, were enumerated in said Law. Thirdly, all three
legalized forms of property were joined under one concept:
"Property of the Republic of Lithuania". Therefore, the
arguments on the basis of which notions "property of the
Republic of Lithuania" and "state property" are identified, are
groundless, because it is the relation of the whole to its
part. Thus, the norm of the first part of Article 45 of the
Provisional Basic Law that "the land, its mineral resources,
inland and territorial waters, forests, flora and fauna, and
other natural resources shall be the national wealth of
Lithuania and the exclusive property of the Republic of
Lithuania", did not mean that these objects of property were
exclusive property of the State. It should be noted, that in
the Provisional Basic Law only mineral resources of the land
were declared to be the exclusive property of the Republic of
Lithuania.
Taking the fact that on 15 June 1940 to 11 March 1990
Lithuania was occupied, annexed and incorporated into another
state - the USSR - into consideration, on 11 March 1990 for the
Supreme Council of primary importance was not the precise
establishment of the subjects, objects and forms of property,
but the constitutional dissociation from the occupation state
and its legal system, and detachment of the State of Lithuania
and its citizens from the unlawful governing of the USSR. This
was expressed by the wording of Article 45 of the Provisional
Basic Law that all the wealth of Lithuania shall be its
national wealth and the exclusive property of the Republic of
Lithuania, therefore, jurisdiction of any other state shall not
be applied to it. Principles of independence that had been set
forth in the Act of the Restoration of Independent State of
Lithuania, were once again constitutionally established by his
norm. That meant return to economic system based on the right
to private ownership, from which Lithuania had been expelled by
force against its will.
The right to possess property is one of the most
significant human natural rights, and a person may not be
arbitrarily deprived of it. It may only be seized for the needs
of society according to the procedure established by law. Such
principle of the protection of property and rights to property
is also formulated in international legal instruments. For
instance, in the second part of Article 17 of the Universal
Declaration of Human Rights it is specified: "No one shall be
arbitrarily deprived of its property"; in the first part of
Article 1 of the Protocol 1 pertaining to the European
Convention for the protection of Human Rights and Fundamental
Freedoms it is maintained: "Every natural or legal person is
entitled to the peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and
by the general principles of international law".
The independence of the Republic of Lithuania was
destroyed by force, in realization of unlawful secret
agreements of 1939 between the USSR and Hitler's Germany. The
unlawfulness of these agreements and their consequences was
officially declared already in the February 1990 Resolution of
the Supreme Council of the Lithuanian SSR "On 1939 Treaties
between Germany and the USSR and elimination of their
consequences to Lithuania. It was also stated in. this
resolution that elections to the People's Seimas, which took
place on 14-15 July 1940, were carried out in violation to the
Constitution of Lithuania, and it was declared that "the 21
July 1940 Declaration of the People's Seimas concerning
Lithuania's entrance into the USSR is unlawful and null and
void as it did not express the will of the Lithuanian People".
In the 11 March 1990 Law of the Republic of Lithuania "On
the Reinstatement of the 12 May 1938 Constitution of Lithuania"
it was stated, that the 12 May 1938 Constitution was suspended
when on 15 June 1940 the Soviet Union committed aggression
against the independent State of Lithuania and annexed it".
Thus, the People's Seimas, which had been formed in violation
to the Constitution of Lithuania, was used for the destruction
of the economic system established in the Constitution, and for
the unconstitutional enforcement of economic system of an alien
state on Lithuania. The Declaration of 22 July 1940 "On
Proclaiming all the Land of Lithuania National Property", i. e.
state-owned property, may serve as an example of such acts of
the People's Seimas. The next day the People's Seimas adopted
"Declaration on Nationalization of Banks and Large-scale
Industry", followed by nationalization of other property as
well. Such overall nationalization and elimination of private
property was carried out not only in rough violation of the
1938 Constitution of Lithuania, but also unlawfully denying
human natural right to private ownership by force. Lawful state
property could not and did not appear on the basis of such
arbitrary acts of occupation government, as rights may not
originate on unlawful basis. Therefore, property taken from
people in such a way, may be considered as property which is
only factually managed by the state.
The right of private ownership found its way back into the
legal system of the State due to the constitutional provisions
of Article 44 of the Provisional Basic Law and Article 46 of
the 1992 Constitution. Thereby, the continuity of the
provisions of the 12 May 1938 Constitution governing the
property right has been confirmed. However, it is impossible to
impartially reconstruct the complete former system of property
relations which existed in Lithuania in 1940. In the Law "On
the Provisional Basic Law of the Republic of Lithuania" it was
stated that even changes which took place during occupation
period should not be ignored. In the preamble to this Law it is
determined that the Supreme Council has taken into
consideration the necessity of bringing the provisions of the
12 May 1938 Constitution of Lithuania "with today's changing
political, economic and other social relations".
The Supreme Council by the 11 March 1990 Law "On the
Reinstatement of the 12 May 1938 Constitution of Lithuania" did
not terminate the validity of Chapter 8 of this Constitution
entitled "National Economy", the norms of which regulate
property relations, however, in item 4 of this Law established
that "the reinstatement of the Constitution of Lithuania does
not in itself re-establish other laws in effect in the Republic
of Lithuania prior to 15 June 1940". While recognizing the
restitution of property and continuity of property rights, the
Supreme Council on 15 November 1990 confirmed the following
statements: "The recognition of continuity of citizens' rights
of ownership is unquestionable", "To establish that citizens of
Lithuania are entitled to the right to restore the existing
real property in kind in the scope and procedure prescribed by
laws, and when there is no such possibility, to receive due
compensation".
The circumstance that there was a need to resolve the
issue concerning continuity of the rights of ownership and to
vote the recognition of the continuity of property rights of
the citizens of the Republic of Lithuania shows, that the
Supreme Council considered the rights of ownership that had
been possessed before nationalization (the right of a
particular person to manage, use and dispose of property) as
unlawfully nullified. The promulgation of the provision of
continuity of property rights was a basis for the
implementation of a limited restitution , i. e. for the
protection of property rights that had been violated, in the
conditions and procedure prescribed by laws.
While recognizing the continuity of property ownership
rights, the Supreme Council by the statement of 15 November
1990 actually also ascertained that situations were possible
when all the existing property could not be restored in kind.
In such cases, it was provided for the possibility to receive
compensation. The Constitutional Court indicates that the
provision that, providing there is no possibility to restore
property in kind, it must be adequately compensated for, does
not contradict the principles of inviolability of property and
protection of property ownership rights, because fair
compensation also ensures restoration of property ownership
rights.
The realization of said rights is established in the Law
of the Republic of Lithuania "On the Procedure and Conditions
of the Restoration of the Rights of Ownership to the Existing
Real Property". In Article 1 of this Law it was specified:
"This Law shall legislate the procedures and conditions of the
restoration of the right of ownership to the citizens of the
Republic of Lithuania to the property which was nationalized
under the laws of the USSR (Lithuanian SSR), or which was
otherwise unlawfully made public, and which, on the day of
enactment of this Law, is considered the property of the State,
of the public, of co-operative organizations (enterprises), or
of collective farms".
The Supreme Council by this Law has recognized that the
rights of ownership to the property which was nationalized
under the legal acts of the Lithuanian SSR, or which was
otherwise unlawfully made public, must be restored. The
legislator, while maintaining that the rights of ownership that
had been unlawfully terminated, must be restored, also
recognized that it had to be done in the procedure and
conditions prescribed by laws. It is, on the one hand, overall
forcible character of violation of the rights of ownership and,
on the other hand, the decision to carry out only limited
restitution which predestined the situation when the rights of
former owners, that had been unlawfully terminated, could not
be protected by means of norms of civil law that were in force
at that time. For this purpose, a special law like the Law "On
the Procedure and Conditions of the Restoration of the Rights
of Ownership to the Existing Real Property", had to be enacted.
Under this Law, the rights of ownership shall be restored
not to all former owners of property and not to all the
property they had possessed. It contains special conditions,
restrictions rather, which are applied to former owners of
property who desire to restore their property in kind.
Therefore, the statement, that by said Law an attempt is made
only to regulate the procedure of the restoration of the rights
of ownership, may not be considered as grounded.
The fundamentals of the restoration of the rights to
private ownership and to land, which had been earlier violated,
were formulated already in the legal acts of the Supreme
Council of the Republic of Lithuania. The establishment of
additional conditions and restrictions, disregarding these
acts, would not be in compliance with the principled provisions
of the continuity and restoration of the rights of ownership,
enacted by the legislator. After the enforcement of the
Constitution of the Republic of Lithuania on 2 November 1992,
laws that were amended or newly adopted laws had to be
co-ordinated with it.
Article 2 of the Law "On the Procedure and Conditions of
the Restoration of the Rights of Ownership to the Existing Real
Property" is titled: "Citizens Entitled to Restored Ownership
Rights", and in this Article, a notion "former owner" is used
to define such a person. He, i. e. "the owner of property" is
not mentioned in the Law with regard to present time. While
evaluating the status of a citizen, who tries to restore the
unlawfully terminated rights of ownership, the fact when he
acquires the right to manage, use and dispose of some specific
property, is of considerable importance.
Until his property is restituted or he is paid an
appropriate compensation for it, the subjective rights of the
former owner to a specific property are not restored yet. The
law by itself shall not create subjective rights until it is
applied to a specific subject pertaining to the restoration of
a specific property. In such a situation the legal meaning of
the decision of the institution authorized by the State to
restore property in kind or compensate for it is, that only
from this proper moment, the former owner acquires the rights
of ownership to such property.
The legislator, having defined the procedure and
conditions of the restoration of the rights of ownership,
emphasized the priority of restoring the actual land property.
However, in the event when, due to the factual present
land-tenure relations and public interests, it is impossible to
grant the actual property, the former owner is guaranteed the
right to choose the manner of restoring the right of ownership
in the procedure and conditions prescribed by laws.
The restoration of the rights of ownership and land reform
are two inseparable processes. Their unity is expressed through
their common object - land, therefore, the restoration of the
rights of ownership to land is co-ordinated with land reform.
The afore mentioned circumstances must be necessarily
taken into consideration while evaluating the compliance of the
legal norms of the Law in dispute with the Constitution.
1. On the compliance of the parts of item 3 of the Law "On
Appending and Amending the Law "On the Procedure and Conditions
of the Restoration of the Rights of Ownership to the Existing
Real Property"", adopted 15 July 1993, by which Parts 5 and 6
of Article 4 of the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" of 18 June 1991 have been amended, with the
Constitution of the Republic of Lithuania.
In Parts 5 and 6 of Article 4 entitled "Conditions and
Procedures for the Restoration of the Right of Ownership to
Land Situated in Rural Areas" of the Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership to the
Existing Real Property" , adopted 18 June 1991, which has been
amended by the Law in dispute, it is established: "The right of
ownership to land used for agricultural purposes shall be
restored to: persons establishing farmer's holding; members of
agricultural companies and partnerships; persons planning to
use the restored land for private economic purposes as well as
other agricultural activities; persons, who intend to lease the
restored land for other legal persons engaged in farming.
While restoring the right of ownership to the land used
for agricultural purposes, it may be done only after
identification of the use of this land. This may be either:
1) a person, regaining this land, provided that he is
establishing a farmer's holding or is going to use this land
for private economic purposes;
2) a tenant (a farmer,. a person ready to engage in
farming, or an agricultural company), consenting to lease the
land (or portion thereof), which is unnecessary for the needs
of the landowner's family, for at least 3-year-period.
Preliminary consent to lease plots of land used for
agricultural purposes, designed in the land-planning project,
must be witnessed by a notary. The priority for renting the
land goes to the present user of this land."
The specific purpose and status of land, in comparison to
other objects of real property, predetermine special legal
regulation of land relations. Thus, in the first part of
Article 47 of the Constitution it is established that, land,
internal waters, forests, and parks may only belong to the
citizens and the State of the Republic of Lithuania by the
right of ownership. The only exception is set forth in the
second part of Article 47 of the Constitution: "Plots of land
may belong to a foreign state by the right of ownership for the
establishment of its diplomatic and consular missions in
accordance with the procedure and conditions established by
law".
The second part of Article 54 of the Constitution contains
the provision that the exhaustion of land shall be prohibited
by law. This constitutional principle of land protection shows
that land is interpreted as a public value having its social
function - to serve the welfare of the people. The society is
not indifferent to the way the land is used, because it is in
public interests to preserve the productivity of land.
Therefore, the right of the state to regulate conditions of the
restoration of the rights of ownership to land is vital in
order to co-ordinate the interests of former owners with the
public interests.
Parts 5 and 6 of Article 4 establish the conditions for
the restoration of the rights of ownership, under which land
used for agricultural purposes is returned in kind. The
specific character of agricultural land is that it is used for
agricultural production. Therefore, the legislator, while
determining the conditions for the restoration of the land used
for agricultural purposes, must neither impair the rights of
former owners, nor ignore the public interest to use this land
for agricultural purposes. Such public interest is based on the
provision established in the third part of Article 46 of the
Constitution that, the State shall regulate economic activity
so that it serves the general welfare of the people.
Parts 5 and 6 of Article 4 contain the provisions that
land used for agricultural purposes may be restored to : 1)
persons establishing a farmer's holding; 2) members of
agricultural companies and partnerships; 3) persons who desire
to use the land regained for personal economic needs and other
agricultural activity. Said persons at present are already
users of the land which is given back to them. It will further
be used for its special purpose, therefore, their interests do
not contradict public interests.
The provision of the fifth part of Article 4 that the land
used for agricultural purposes may be restored "to persons who
are going to lease the land which is restored to them for other
natural and legal persons engaged in farming", to a portion of
former landowners, i. e. to those who themselves are not going
to use the land for agricultural purposes, prescribes an
unusual condition.
The conclusion of lease contract is the owner's right
based on his free will. The obligation to lease land, imposed
on the owner, is not acceptable from the point of view of the
traditions of civil law, as it restricts the freedom to dispose
of land. Though, it must not be disregarded, that this is only
a temporary measure used in the implementation of land reform.
Land is restored to former owners ready to lease it, even if
they would not use it for agricultural purposes. However, while
applying unusual conditions for lease, which actually make the
former owner lease the restored land for its real user, it is
necessary to ensure the imposition of such imperative
conditions on the other party to the lease contract as well.
Thus, in cases when the owner chooses the lease of the land (or
a portion thereof) as a condition of the restoration of the
land which he had in his ownership earlier, the factual user of
this land must conclude a lease contract with a landowner. In
the event that the factual land user refuses to conclude a
lease contract, such land should be restored to the former
owner as a person who has met the condition prescribed by law
to lease land. Disputes among parties pertaining to the lease
contract and conditions thereof are to be investigated in civil
procedure. Another interpretation of the provisions of the Law
concerning the land lease would mean the violation of the
rights of the former landowner as well as the principle of
equality among parties to the contract.
In the event that the former landowner does not desire to
conclude said lease contract, he may choose another way of
restoring the rights of ownership as an alternative. Such
possibility to choose does not deny the principle of the
inviolability of property, therefore, Parts 5 and 6 of Article
4 of the Law in dispute do not contradict the Constitution.
2. On the compliance of the items 14, 15, 16, 17, 18, and
19 of the Law "On Appending and Amending the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" ", adopted 15 July
1993, by which Article 12 of the Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership to the
Existing Real Property" of 18 June 1991 has been appended by
items 10, 11, 12, 13, 14 and 15, with the Constitution of the
Republic of Lithuania.
In Article 12 of the Law "On the Procedure and Conditions
of the Restoration of the Rights of Ownership to the Existing
Real Property" of 18 June 1991, which is entitled "The Buying
out of Land" it is established: "Land required for State needs
as well as other land shall be bought out from persons defined
in Article 2 of this Law in the manner specified in Article 16
of this Law..."
This Article provides for the cases of buying out of land.
The buying out of land regulated by said Article is not
identical to the purchase according to the contract of sale
which is regulated by the norms of civil law. The contract of
sale, in accordance with general principles of making
contracts, is based on the free will and equality of the
parties. Under this contract, the owner himself assumes the
obligation to transfer his property to the purchaser at a
contract price, and nobody can make him conclude this contract.
The notion "buying out", used in Article 12, actually means the
right of the institutions authorized by the State to adopt a
decision not to restore the existing real property to the
former owner provided that there are appropriate conditions
established by the legislator himself. Buying out of the land
is conditioned by the public interest in it but not by the will
of the former owners and other persons specified in the Law.
Buying out is not a voluntary transferral of one's property but
its seizure compensating for its value. Said persons have only
the right to choose the manner of compensation in the procedure
prescribed by law. In case of disputes pertaining to the manner
of compensation of property or its value, they may defend their
interests in court.
While considering the issues of returning the land to
former owners, facing the system of socio-economic relations,
that was formed during the period of 50 years, is inevitable.
Land-tenure has changed: land areas were planted with forests;
new water bodies came into being; railways and motor ways were
built; the main network of oil and gas pipes was laid on ;
urban areas and land areas covered by industrial enterprises
have expanded; large-scale specialized units of agricultural
production have been built and are functioning at present. Due
to such new circumstances, the right of the state to regulate
the conditions of the restoration of the rights of ownership,
so that the interests of former owners and public interests
were co-ordinated to the utmost, should not be ignored. The
activity of State and its institutions, trying to establish the
procedure and conditions of the restoration of the unlawfully
terminated rights of ownership, must be based on the
constitutional provisions ensuring the protection of the rights
of ownership and the general welfare of the people.
In item 10 of Article 12 it is established that land shall
be bought out if "it is occupied by orchards, berry-fields,
nursery-gardens, gardens with the installed irrigation systems
of specialized agricultural enterprises. Such plots may be
given back into ownership in kind, without changing the nature
of land use, for the persons who shall lease it for
agricultural enterprises using this land under the conditions
specified in item 9 of said Article.
This norm provides for buying out of land containing
orchards, berry-fields, nursery-gardens as well as gardens with
installed irrigation systems, that belong to specialized
agricultural enterprises. Farming lands of such agricultural
enterprises are formed with reference to perspective farming
using long-term investments. Apart from irrigation and
reclamation systems, other special industrial objects, such as
depositories, refrigerators, equipment for production
processing, etc., are installed in these companies. Such
orchards, berry-fields, nursery-gardens, gardens along with all
the equipment comprise a complete industrial-technological
unit. Therefore, special technologies, the same means of pest
control can be used, and the cultivation of fruit and
vegetables can be specialized.
Unconditional restoration of land would violate
industrial-technological integrity of existing complexes, it
even can lead to the ruining of all the operation of these
units, so that their useful technological potential would be
left unused. This would impair the public need for specialized
production. The obligation to conclude a lease contract
concerning the land to be returned is established meeting the
interests of the former owner and society. With regard to the
legislator's standpoint that the land must be used for
agricultural purposes, the Constitutional Court expressed its
opinion while resolving the issue whether Parts 5 and 6 of
Article 4, which have been amended by the Law in dispute, are
in conformity with the Constitution.
However, the provision of item 10, that plots of land "may
be" returned is flawed as it creates legal ambiguity. Such a
provision means that the right of the former owner to restore
land in kind may be restricted even in cases when he agrees to
lease land under conditions prescribed by the Law in dispute.
The consent of the former owner to lease shows that he meets
all the conditions established by the Law in dispute,
therefore, it must be evaluated as a juridical fact ensuring
the restoration of the actual land property. However, in the
presence of said provision ("may be"), this right of the former
owner might be restricted by certain state institutions,
officials, or current land users. Such possibility of
subjective decisions contradicts the provision that the
restoration of the rights of ownership is predetermined only by
the conditions established in the Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership to the
Existing Real Property". Therefore, the provision of item 10 of
Article 12 that plots of land "may be" restored, contradicts
Article 23 of the Constitution.
In item 11 of Article 12 it is established that land shall
be bought out if it "contains irrigation systems for overhead
irrigation of fodder areas by disposed waters of
cattle-breading complexes".
This norm expresses the legislator's desire to ensure the
functioning of existing cattle-breeding complexes as special
technologies. Such complexes were formed as integral production
systems, the functioning of which cause ecological problems
which must not be ignored. Disposed waters that appear in the
production cycle of cattle breeding complexes, must be
permanently discharged. For overhead irrigation of such waters
plots of land of appropriate size are needed, on which system
of two-way regulation of humidity regime - pumping stations,
communications of underground pipelines and systems of overhead
irrigation - would be installed. If such special technology of
elimination of disposed waters were not used, natural
environment would be threatened.
The objective situation is such that the
industrial-technological process requires said plots of land
with above-mentioned equipment. Therefore, such plots of land
used for special purposes must necessarily be left near
cattle-breeding complexes, because it is related to the public
demand for the guarantee of ecological protection.
Due to systematic irrigation of land areas, an appropriate
regime of the utilization of irrigated land, essential
limitations on crop rotation must be applied. Upon restoration
of such land to former owners, the interests of cattle-breeding
complexes and individual landowners would inevitably clash. An
attempt to combine those interests may face objective as well
as subjective obstacles, and may cause disorder in the
functioning of the existing ecologically safe production
systems.
While solving the issues concerning the restoration of the
rights of ownership and providing for the buying out of said
plots of land, the legislator took into account not only
economic but also ecological interests of society. Thereby, the
legislator implemented the function of the State to concern
itself with the protection of the natural environment,
established in Article 54 of the Constitution. Therefore, there
is no ground for recognizing that item 11 of Article 12
contradicts the Constitution.
In item 12 of Article 12 it is established, that land "of
forest districts and national parks to be used for the needs of
forestry shall be bought out according to the standards
determined by the Ministry of Forestry".
Item 12 of Article 12 provides for the possibility not to
return the land used for agricultural purposes in kind provided
that this land, in compliance with the standards determined by
the Ministry of Forestry, is assigned to forest districts and
national parks. The restriction of the restoration of the right
of ownership is related under this item to vague needs of
forestry, without specifying any objective criteria for public
interest. The statement that land not subject to restoration is
necessary for the maintenance of horses needed for work in
forests, is not a convincing argument, because such
utitlization of land may not be regarded as pubic interest. The
right to draft standards for agricultural land to be used for
the needs of forestry, vested in the Ministry of Forestry, is
also groundless. In this case, governmental institution is
entitled to the right to determine the size of plots of land to
be bought out for its own needs. The establishment of new
conditions to be applied in the restoration of the right of
ownership is within the competence of the legislator. The
Ministry of Forestry actually becomes an institution resolving
issues concerning ownership, i. e. it restricts the rights of
the former owners to restore land in kind. Whereas, land may be
seized only upon a specific decision adopted in compliance with
the provisions of the third part of Article 23 of the
Constitution.
Limitations on the restoration of land, set forth in item
12, are not based on objectively expressed public interests,
therefore, such restriction of the restoration of the rights of
ownership of former owners contradicts Article 23 of the
Constitution of the Republic of Lithuania.
In item 13 of Article 12 it is established, that "land to
be bought out in a rural area, shall be used for the
construction of residential houses, common use of residents or
other public needs in accordance with the
settlement-development projects".
In occupation period in Lithuania, upon denial of the
private ownership to land and implementation of
collectivization of agriculture as well as establishment of
large-scale state farms, an appropriate structure of rural
settlements was formed. That period saw the construction of
many new rural settlements. Land, which before occupation used
to be private property, was now used for the construction of
these settlements. At present, the situation is such, when some
land areas that used to be private property is now built over
by residential houses, structures used for economic, cultural
and other social purposes, therefore, this and other commonly
used land in settlements may not be considered the existing
real property and is not objectively possible to be returned
for the former owners.
Due to the economic reform in general, and land reform
taken apart, the perspectives of the development of rural
settlements are subjected to changes as well. They change in
the process of restoration of the rights of private ownership
to land. Therefore, preliminary purchase of land for the future
construction of residential houses in accordance with
settlement-development projects, for common use of residents or
for other public needs, may not be based on public interest.
Buying out of land in rural settlements according to the
development projects provide for the possibility to privatize
it later, i. e. other persons will be allowed to acquire it.
That would mean, however, the violation of the right of former
owners to restore land.
In conformity with afore mentioned arguments it is
recognized that item 13 of Article 12 contradicts Article 23 of
the Constitution.
In item 14 of Article 12 it is established, that "rivers
and lakes belonging to the water fund of the State and local
governments shall be bought out if they are ascribed to water
bodies not subject to privatization in accordance with the
procedure established by the Government of the Republic of
Lithuania".
The legislator, while adopting on 18 June 1991 the Law "On
the Procedure and Conditions of the Restoration of the Rights
of Ownership to the Existing Real Property", established the
conditions which were applied to former owners while returning
inland waters. In item 8 of the resolution of the Supreme
Council of the Republic of Lithuania "On the Process of
Enforcement and application of the Law of the Republic of
Lithuania "On the Procedure and Conditions of the Restoration
of the Rights of Ownership to the Existing Real Property"" it
is determined that: "A person shall own any lake of the size
determined by the Government of the Republic of Lithuania,
water reservoir, canal, pond, and other surface water body, if
it is surrounded on all sides by his property".
By way of implementing this resolution, the Government in
paragraph 1, item 15 of resolution No 470 of 15 November 1991
established, that the restored area of afore mentioned waters
along with land "must not exceed 5 hectares. In exceptional
cases, the restored area may exceed 10 hectares, provided that
the Department of the Environmental Protection of the Republic
of Lithuania gives its consent thereto".
In conformity with earlier formulated provisions of the
legislator, the process of the restoration of unlawfully
terminated rights of ownership and returning of water bodies to
their former owners has already been under way. New conditions
that are determined in item 14 of Article 12 impose even more
restrictions on the rights of former owners who have not
restored their water bodies yet.
Only small in size water bodies have been returned.
Therefore, the restrictions imposed on the restoration of such
waters may not be justified by abstract public interest. In
case that such interest is related to a specific water body, it
may, regardless of its size, be seized only in accordance with
the decision adopted under the provisions prescribed by the
third part of Article 23 of the Constitution.
In item 14 of Article 12, buying out of internal waters is
based on their adherence to the State fund or the fund of local
governments. This adherence of waters does not manifest public
interest. On the contrary, due to this adherence, the
possibility arises to ascribe any water bodies to this fund, in
accordance with the provision that they are not subject to
privatization. Such norm impairs the rights of former owners to
restore water bodies in kind, therefore, item 14 of Article 12
contradicts Article 23 of the Constitution.
In item 15 of Article 12 it is established that "land
taken into the state land fund for establishing a farmer's
holding shall be bought out provided that at present it is
leased by persons who are actually engaged in farming and have
structures used for economic activity, but may not restore this
land in kind."
It was the Law "On Farmer's Holding in the Lithuanian
SSR", adopted on 4 July 1989, which at the end of Soviet period
for the first time established the allocation of land for
farmer's holdings. Those who desired to engage in farming were
allotted land free of charge from the land fund designed for
farmer's holdings. This fund appropriated land from the state
reserve, state forest fund, State farms, collective farms as
well as other enterprises and organizations (Article 7 of the
Law "On Farmer's Holding in the Lithuanian SSR").
Said provisions were not nullified upon the adoption of
the 11 March 1990 Law "On the Provisional Basic Law" in Article
3 of which it is established that: "Laws and other legal acts
heretofore in force in Lithuania which do not conflict with the
Provisional Basic Law of the Republic of Lithuania shall remain
in effect in the Republic of Lithuania. With the presence of
such norm, Land Code of the Republic of Lithuania, in
accordance with the Law of 5 April 1990, was appended by
Article 48-1 providing for the appropriation land into the land
fund designed for farmer's holdings. Under this Law, plots of
land were appropriated into the fund disregarding the right of
ownership of former owners, although the institute of private
property had already been returned into the legal system of the
state. The allocation of land according to the Law on Farmer's
Holding had not been terminated until the day of the
enforcement of the Law on Land Reform of the Republic of
Lithuania, i. e. until 1 September 1991 (Paragraph 1, item 1 of
the Resolution of the Supreme Council "On the Procedure for the
Enforcement of the Law on Land Reform of the Republic of
Lithuania" of 25 July 1991).
The provisions of item 1, Article 8 of the Law on Land
Reform meant , that the citizens, having received land under
the Law on Farmer's Holding, had to buy out or lease from the
State an additionally acquired plot. Such provisions show that
the State took the obligation to protect the rights of citizens
who had acquired land according to the Law on Farmer's Holding,
and to pay an appropriate compensation for the former owners.
Thus, the State by laws provided the conditions for
persons who acquired land into the ownership under the Law on
Farmer's Holding, to settle on this land, engage in farming, as
well as to have various structures there. Failing to provide
the possibility for the State to buy out such land from the
former owners, the contents of legal relations already
regulated by laws, would be changed. That would mean
retroactive validity of Article 12 of the Law "On the Procedure
and Conditions of the Restoration of the Rights of Ownership to
the Existing Real Property" of 18 June 1991, because it would
be applied to juridical facts and legal consequences which
appeared on the basis of the Law on Farmer's Holding. Item 15
of Article 12 has eliminated the clash of laws, therefore it
does not contradict the Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania as well as Articles 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court has passed the following
ruling:
To recognize that concerning the Law of the Republic of
Lithuania "On Appending and Amending the Law of the Republic of
Lithuania "On the Procedure and Conditions of the Restoration
of the Rights of Ownership to the Existing Real Property" ",
adopted 15 July 1993:
1) those parts of item 3, by which Parts 5 and 6 of
Article 4 of the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" of 18 June 1991 have been amended, do not contradict
the Constitution of the Republic of Lithuania;
2) the provision "may be" of item 14, by which Article 12
of the Law "On the Procedure and Conditions of the Restoration
of the Rights of Ownership to the Existing Real Property" of 18
June 1991 has been appended by item 10, contradicts Article 23
of the Constitution of the Republic of Lithuania. Other
provisions of this item do not contradict the Constitution of
the Republic of Lithuania;
3) item 15, by which Article 12 of the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" of 18 June 1991 has
been appended by item 11, does not contradict the Constitution
of the Republic of Lithuania;
4) item 16, by which Article 12 of the Law On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" of 18 June 1991 has
been appended by item 12, contradicts Article 23 of the
Constitution of the Republic of Lithuania;
5) item 17, by which Article 12 of the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" of 18 June 1991 has
been appended by item 13, contradicts Article 23 of the
Constitution of the Republic of Lithuania;
6)item 18, by which Article 12 of the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" of 18 June 1991 has
been appended by item 14, contradicts Article 23 of the
Constitution of the Republic of Lithuania;
7)item 19, by which Article 12 of the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" of 18 June 1991 has
been appended by item 15, does not contradict the Constitution
of the Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.