Lietuviškai
THE CONSTITUTIONAL COURT
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of item 4, Part 2, item 2 of the Law of
the Republic of Lithuania "On Amending the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" ", adopted 12 January
1993, by which item 2, Part 2, Article 8 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 amended, and sub-item 4, item 2 of the Law of the Republic
of Lithuania "On Amending and Appending 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" of 11 January 1994, by which the second part of
Article 8 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 4, with the
Constitution of the Republic of Lithuania
15 June 1994, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed from the Justices of the Constitutional Court Algirdas
Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas
Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas,
Teodora Staugaitienė, Stasys Šedbaras and Juozas Žilys,
the secretary of the hearing - Rolanda Stimbirytė,
the petitioner - Andrius Kubilius and advocate Narcizas
Rasimavičius, representatives of a group of the Seimas members,
the party concerned - Seimas member Pranciškus Vitkevičius
and Algirdas Taminskas, representatives of a group of the
Seimas members,
pursuant to Part 1, Article 102 of the Constitution of the
Republic and Article 1 of the Law on the Constitutional Court
of the Republic of Lithuania, in its public hearing of 6 June
1994 conducted the investigation of Case No 11-1993/9-1994
subsequent to the petition submitted to the Court by a group of
the Seimas of the Republic of Lithuania members requesting to
investigate if item 4, Part 2, item 2 of the Law of the
Republic of Lithuania "On Amending the Law "On the Procedure
and Conditions of the Restoration of the Rights of Ownership to
the Existing Real Property" ", adopted 12 January 1993, by
which item 2, Part 2, Article 8 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 amended,
is compliance with the Constitution of the Republic of
Lithuania, as well as the petition submitted to the Court by
the College of Civil Cases of the Supreme Court requesting to
investigate if item 4, Part 2, item 2 of said Law of 12 January
1993 and sub-item 4 of item 2 of the Law of the Republic of
Lithuania "On Amending and Appending 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"" of
11 January 1994, by which the second part of Article 8 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 4, is in compliance with the
Constitution of the Republic of Lithuania.
The requests of a group of the Seimas members and the
Panel of Civil Cases of the Supreme Court have been joined into
one case on the decision of the Constitutional Court, adopted
on 27 May 1994.
The Constitutional Court
has established:
On 18 June 1991 the Seimas passed the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" (hereinafter it shall
be referred to as "Law"), in the first and second parts of
Article 8 entitled "Conditions and Procedures for the
Restoration of Ownership Rights to Residential Houses" of which
it is determined: "The ownership rights to residential houses
(or portion thereof) shall be restored to persons specified in
Article 2 of this law by returning the actual houses (or a
portion thereof), or by compensating their value.
The procedure and time limits for the restoration of
residential houses (or portions thereof) which do not fall
under the category of houses defined in Article 14 of this Law,
shall be established by the Government of the Republic of
Lithuania, pursuant to the provision that the residential
houses shall be returned in the case that:
1) they are reconstructed into premises not designed for
living or if they are vacant;
2) tenants, occupying houses subject to being returned,
and which are occupied by more than one family, are familiar
with all the laws guaranteeing their rights, and with their
option to move under the conditions proposed by the local
government and set forth in Article 21 of this Law, or under
other conditions guaranteed by the former owner of the house;
3) the residential house consists of a single dwelling
unit;
4) the former owners reside in the house which is subject
to being returned" (Official Gazette "Valstybės žinios", No
21-545, 1991).
The 7 May 1992 Law "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"" has appended the second part of Article 8 of said
Law by item 5: residential houses shall be returned in the case
that "the residential house belonging to the state or public
housing fund, together with equipment (with the exception of
those already sold by the former owner), is on agricultural or
forest land" (Official Gazette "Valstybės žinios", No 15-405,
1992).
On 12 January 1993 the Seimas adopted the Law "On Amending
the Law "On the Procedure and Conditions of the Restoration of
the Rights of Ownership to the Existing Real Property" '
(hereinafter it shall be referred to as "the 12 January 1993
Law"), which presented a new wording of Article 8 of the Law On
the Procedure and Conditions of the Restoration of the Rights
of Ownership to the Existing Real Property"(Official Gazette
"Valstybės Žinios", No 5-83, 1993). The previous norm of item 2
of the second part of this Article has been transferred into
item 4 of the same part, and presented in the following way:
the procedure and time limits for the restoration of
residential houses (or portions thereof) shall be established
by the Government of Lithuania, pursuant to the provision that
the residential houses shall be returned in the case that
"tenants, occupying houses subject to being returned, consent
to move, at their own will, into other residential premises
allotted to them.
The petitioner - a group of the Seimas members - requests
the Constitutional Court to recognise that said norm of the Law
contradicts Article 23 of the Constitution. The petitioner
bases the request on the fact that said Article of the
Constitution establishes inviolability of property as well as
the provision that the rights of ownership shall be protected
by law. While establishing the option of tenants to move into
other residential premises allotted to them, as the
prerequisite for the restoration of residential houses, the
Seimas violated Article 23 of the Constitution, i. e. refused
to protect the rights of ownership by law and subjected the
realization of these rights to the will of the leaseholder.
The petitioner's representatives have explained that: the
norm of the Law that the residential houses shall be returned
in the case that "tenants, occupying houses subject to being
returned, consent to move, at their own will, into other
residential premises allotted to them", contradicts the
constitutional provision that the rights of ownership shall be
protected by law. In the case that the tenants disagree to move
into other residential premises allotted to them, the dwelling
house is not restored to the owner and the latter is paid due
compensation. The tenant's agreement or disagreement to move
into other residential premises is groundlessly put on the same
footing as the needs of society mentioned in Article 23 of the
Constitution.
Tenants are not to be blamed for the present situation as
they have been moved into those flats by the former Government.
For this reason, the 16 July 1991 Resolution of the Supreme
Council of the Republic of Lithuania regarding 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"
provided for certain privileges for said persons, in case
problems concerning the dwelling arose. The Government at that
time provided for the sources of funds necessary for the
construction of dwelling units, however, after the elections of
1992, different policy has been pursued.
The petitioner's representatives have specified that in
the explanations of the representatives of the party concerned,
submitted to the Constitutional Court, it is misinformed that
even prior to the adoption of the amendment to the Law in
dispute, the restoration of the residential houses was related
to the tenant's free will to move into other residential
premises allotted to him. Then it was established that the
tenants were given the option to move into another dwelling
unit, thus, their rights were not violated. If, upon the
restoration of the rights of ownership, tenants did not desire
to move, the problem could be solved pursuant to the norms of
civil law.
The petitioner's representatives request to recognise that
item 3 of the second part of Article 8 of the Law (item 4 of
the second part of Article 8 of the Law, at the time the
petitioner applied to the Constitutional Court) contradicts the
Constitution of the Republic of Lithuania.
On 11 January 1994 the Seimas adopted the Law "On Amending
and Appending 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 it shall
be referred to as "the 11 January 1994 Law"), by which the
contents and sequence of norms of Article 8 of the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" has been amended and
appended (Official Gazette "Valstybės Žinios", No 7-100, 1994).
Subject to these amendments, the first and second parts have
been formulated in the following way:
"The ownership right to residential houses (or portion
thereof) shall be restored to persons specified in Article 2 of
this Law by returning the actual houses (or portion thereof),
or by compensating their value.
The procedure and time limits for the restoration of
residential houses (or portion thereof) shall be established by
the Government of the Republic of Lithuania, pursuant to the
provision that the residential houses shall be returned in the
case that:
1) they are reconstructed into premises not designed for
living or if they are vacant;
2) they are not given over to institutions of science,
medical care, culture, education and communication;
3) tenants, occupying houses subject to being returned,
consent to move, at their own will, into other residential
premises allotted to them;
4) natural persons, having acquired for ownership houses
(or portion thereof) subject to restoration, consent to move,
at their will, into other residential premises allotted to
them;
5) the former owners reside in the house which is subject
to being returned (in the event that former owners occupy part
of the house, this part is unconditionally returned to them);
6) residential houses along with equipment which have been
transferred by the state, public, co-operative organizations
(enterprises) as well as collective farms for the ownership of
natural persons, (with exception of those transferred by the
owners themselves), are on agricultural or forest land subject
to restoration".
The petitioner - Panel of Civil Cases of the Supreme Court
- on 31 January 1994 investigated a civil case pursuant to the
action by E. Aleinikovienė and D. Didvalienė brought against
Šiauliai City Council, Mr. K. Kriščiūnas and Mr. B.
Abromavičius, pertaining to the recognition of contracts of
sale of dwelling units as null and void, restoration of the
rights of ownership to a portion of the residential house and
returning this house in kind.
The Panel of Civil Cases by its ruling suspended the
investigation of the civil case and addressed the
Constitutional Court with the request to investigate if items 3
and 4 of the second part Article 8 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" are in conformity with Article 23 of the
Constitution. The Panel of Civil Cases bases its request on the
fact that the procedure and conditions for the restoration of
residential houses (or portions thereof), which is a matter in
dispute in the case under investigation in Court, are
established in Article 8 of said Law. In accordance with items
3 and 4 of the second part of this Article, the restoration of
the actual property is subjected to the consent of tenants or
other persons to move into other premises. These legal norms
restrict the owner's right to demand and obtain property which
he has stopped managing against his will. This has provided the
ground for the Court to maintain that said norms contradict
Article 23 of the Constitution.
The representatives of the party concerned have explained:
the issue of contradiction to Article 23 of the Constitution
may be raised only with regard to such a law, which establishes
the possibility to violate the ownership rights. Persons
specified in Article 2 of the Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership to the
Existing Real Property" may not be considered as owners whose
rights have been violated, because no act of restitution,
providing for the unconditional restoration of property for the
former owners, has been adopted in the Republic of Lithuania.
Besides, in case that these persons were regarded as owners
whose rights have been violated, it would be recognized that
the main provisions of the Law "On the Procedure and Conditions
of the Restoration of the Rights of Ownership to the Existing
Real Property" contradict Article 143 of the Civil Code as well
as other legal norms regulating the protection of ownership
rights.
In the opinion of the representatives of the party
concerned, the 12 January 1993 Law actually has not changed the
former norm of item 2 of the second part of Article 8 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 specified that residential houses shall be returned
in the case that "tenants, occupying houses subject to being
returned, and which are occupied by more than one family, are
familiar with all the laws guaranteeing their rights, and with
the option to move under the conditions proposed by the local
government and set forth in Article 21 of this Law, or under
other conditions guaranteed by the former owner of the house".
This norm of the Law did not mean, however, that it was
sufficient to familiarise tenants, occupying houses subject to
being returned, with their option to move into other
residential premises. In resolutions of the Supreme Council and
the Government of the Republic of Lithuania, with regard to the
period of enforcement and application of said Law it was
determined, that tenants occupying houses subject to
restitution, shall be informed of their option to move, at
their own will, by settling on a dwelling unit allotted to them
which complies with the requirements set forth in Article 94 of
the Housing Code of the Republic of Lithuania.
However, the main problem was not given due attention at
that time, i. e. real possibilities to build as many houses as
it would suffice to provide all the tenants made to move from
the houses subject to restoration to former owners. Therefore,
the disputed by the petitioner provision of the 12 January 1993
Law, that the actual houses shall be returned to the former
owners in the case that tenants, occupying houses subject to
being returned, consent to move, at their own will, into other
residential premises allotted to them, was preconditioned by
the necessity to protect the leaseholders' rights. That was the
public interest. Besides, tenants, occupying houses subject to
being returned, as well as other tenants residing in houses
belonging to state or public housing funds, have been provided
with the possibility to privatize dwelling units they possess.
The representatives of the party concerned have specified
that the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" on 11 January 1994 was appended by the norm that
"residential houses shall be returned in the case that natural
persons, having acquired houses (or portions thereof) subject
to being restored, consent to move, at their own will, into
other residential premises allotted to them". It would not have
been necessary to adopt it, if courts had acted in compliance
with the provision of Article 1 of the Law, specifying that
"this Law shall legislate the procedure 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 socialized, 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", and it shall not regulate the restoration of
ownership rights to the property which is the private ownership
of individuals.It came out, that the former owners, having
already acquired houses (or portions thereof) subject to being
returned, found themselves in worse position than the tenants
who since the moment they moved over were protected by the
provision that they had the option to move at their own will.
The representatives of the party concerned have stated,
that the 11 January 1994 Law expanded the rights of the former
owners. They got entitled to the right to receive compensation
for the houses they had passed, which had to be paid out within
10 years, also they acquired the right to restoration for
ownership the residential houses together with equipment
thereof provided that they are on agricultural land subject to
being returned, irrespective of the fact whether these houses
along with equipment are considered the property of the state,
of the public, of co-operative organizations (enterprises) or
whether they are transferred by said organizations and
collective farms for the ownership of natural persons.
In the opinion of the representatives of the party
concerned, all former property relations are not possible to
restore. The changes which have taken place, public interests,
as well as social purpose of property ought to be taken into
consideration.
Pursuant to the above mentioned arguments, the
representatives of the party concerned requested to recognize
that items 3 and 4 of the second part of Article 8 of the Law
are in conformity with Article 23 of the Constitution.
The Constitutional Court
holds that:
On 11 March 1990 the Supreme Council of the Republic of
Lithuania adopted the Act on the Restoration of the Independent
State of Lithuania and thereby proclaimed that the Constitution
of any other State had no jurisdiction within it. The Supreme
Council by the Law "On the Reinstatement of the May 12, 1938
Lithuanian Constitution", passed on the same day, annulled "the
April 20, 1978 Constitution of Lithuania, the October 7, 1977
USSR Constitution, as well as the fundamentals of legislation
of the USSR and Union republics, and other USSR legislation in
the Republic of Lithuania, suspending those paragraphs and
articles governing the status and powers of the President of
the Republic, the Assembly, the State Council and the State
Supervisory body. Chapter 8 "National Economy", containing
regulation of property relations, was not suspended. This meant
restoration of the institute of the right of private ownership.
On 11 March 1990 the Supreme Council ratified the
Provisional Basic Law of the Republic of Lithuania. In Article
44 thereof it was set forth 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. Thereby,
the continuity of the institute of the right of private
ownership, present in former Constitutions of Lithuanian State,
was confirmed.
Upon overall nationalization and alienation of private
property in other unlawful manner, carried out by the
occupation government, the human natural right to posses
private property was denied. The establishment of the institute
of the right of private ownership in the Provisional Basic Law
meant determination of the state to protect this human right.
However, legal relations based on private ownership right,
which had been terminated by force, were not reinstated by said
legal acts. In the preamble to the Law "On the Provisional
Basic Law of the Republic of Lithuania" the Supreme Council
stressed the necessity of bringing the provisions into accord
"with today's changing political, economic and other social
circumstances".
While realizing the constitutional provision of the
continuity of ownership rights, the Supreme Council on 5
November 1990 confirmed the statement that the recognition of
the continuity of ownership rights of the citizens of Lithuania
is undeniable and formulated its implementation in the
following way: "To establish that citizens of Lithuania have
the right to restore the actual property they were entitled to
in the scope and procedure established by laws, and in the case
that there is no possibility to recover the actual property, to
get compensation for it." The realization of said provisions
proclaiming restricted restitution was determined in the Law
"On the Procedure and Conditions of the Restoration of the
Rights of Ownership to the Existing Real Property", adopted on
18 June 1991. In the first part of Article 1 thereof it is set
forth that: "This Law shall legislate the procedures and
conditions 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 socialized, 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".
Pursuant to this Law, ownership rights shall be restored
not for all former owners and not to all the property they
possessed. Mass character of violations of ownership rights,
committed by the occupation government, new property relations
as well as other objective circumstances having stipulated only
restricted restitution, predetermined the situation when the
impaired ownership rights could not be protected under the
norms of the Civil Code in force. Therefore, special procedure
and conditions for the restoration of the rights of ownership
were determined in the Law "On the Procedure and Conditions of
the Restoration of the Rights of Ownership to the Existing Real
Property". The Law guarantees the restoration of ownership
rights, and the conditions established thereby are applied only
in cases when the former owners desire to recover the actual
property. In the event when there is no possibility to restore
the existing real property in kind for the former owner, due
compensation also ensures the restitution of ownership rights
(Constitutional Court Ruling of 27 May 1994).
It is essential that the conditions set forth in the Law,
due to which the actual property might not be restored, would
not contradict the constitutional provisions protecting
property. However, taking the fact that the restoration of
ownership rights, terminated during occupation period by force,
inevitably influence the existing system of social and legal
relations, into account, this process must go on bringing into
accord the lawful interests of former and present owners of the
same property as well as tenants, occupying the houses subject
to being restored.
On the compliance of item 4 of the second part of item 2
of the Law of the Republic of Lithuania ""On Amending the Law
"On the Procedure and Conditions of the Restoration of the
Rights of Ownership to the Existing Real Property"" of 12
January 1993, by which item 2, Part 2, Article 8 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 amended, with the Constitution of the Republic of
Lithuania.
The 12 January 1993 Law has amended Article 8 of the Law
"On the Procedure and Conditions of the Restoration of the
Rights of Ownership to the Existing Real Property". The norm of
item 2 of the second part was transferred into item 4 of the
same part (item 3, after the amendment of 11 January 1994 Law),
which establishes that residential houses (or portions thereof)
shall be returned in the case that "tenants, occupying houses
subject to being returned, consent to move, at their own will,
into residential premises allotted to them".
Residential houses were nationalized or otherwise
unlawfully socialized under the 31 October 1940 Decree of the
Presidium of the Supreme Council of the Lithuanian SSR and
other governmental acts. Residential houses, which were
nationalized or otherwise unlawfully socialized, passed under
the factual management of local administration, various state
and public organizations. Premises fit for residential use were
ascribed to the state or public housing fund and allotted to
the residents. Persons, to whom dwelling units were allotted in
nationalized or otherwise unlawfully socialized residential
houses, utilized these premises pursuant to lease contracts.
Therefore, legal evaluation of existing lease relations is
significant while resolving issues concerning the restoration
of such houses to the former owners.
In civil law a tenant of a dwelling unit is considered a
person who concludes a lease contract of a dwelling, and a
lessor is the owner of a dwelling or a person managing it on
other grounds. One of the rules of the lease contract is that
the lessor is not necessarily the owner of the leased property,
however, this property must be physically and economically
managed by said subject on the bases prescribed by laws, and
this entitles him the right to influence property in a certain
way, for example, to lease it for other persons. The lessor
must himself meet the conditions of contract as well as take
lawful measures with regard to third parties, whose actions
prevent the tenant from using the leasehold (e. g. they declare
having ownership rights to the leasehold property).
The transition of ownership rights to another person
generally is not a ground for changing or breaking the lease
contract of property. In such cases, rights of obligation of
the real property leaseholder acquire the characteristics of
real rights, thus, providing the tenant with the possibility to
preserve and protect the rights ensuing from the lease contract
against the third persons, consequently against the new owner
as well. These provisions of civil law safeguarding the rights
of tenants confirm that the right of tenants, occupying the
houses subject to being returned to former owners, must be
protected. While regulating the restoration of the ownership
rights to residential houses, the housing lease relations,
which have been formed over decades, must not be ignored,
because it was not the tenants but the occupation government
who violated the human rights of ownership. Therefore, the
tenants must not bear the obligation assumed by the state with
regard to the former owners. The rights of such tenants should
be protected providing guarantees to acquire other residential
premises at the expense of the state, as well as warranting the
stability and fair conditions of dwelling lease.
In item 2 of the second part of Article 8 it was
established that the ownership rights to residential houses
shall be restored by returning the actual houses (or portions
thereof) if they do not fall under the category of the houses
to be bought out by the State, in the case that tenants,
occupying houses subject to being returned, and which are
occupied by more than one family, are familiar with all the
laws guaranteeing their rights, and with their option to move,
at their own will, under the conditions proposed by the local
government and set forth in Article 21 of this Law, or under
other conditions guaranteed by the former owner of the house.
In item 3 of the Supreme Council Resolution "On the 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"" of 16 July 1991 it
was specified that: "The tenants occupying houses subject to
restitution, as defined in item 2 of the second part of Article
8, shall be informed of their option to move, at their own
will, by setling on a dwelling unit allotted to them, which
complies with requirements set forth in Article 94 of the
Housing Code of the Republic of Lithuania". In this Article it
was established that in cases that citizens are made to move,
another suitably equipped and equivalent in size dwelling unit
must be allotted to them, which would meet the requirements
determined in Articles 42 and 43 of the Housing Code, i. e.
must be equipped according to the conditions of locality and
comply with sanitary-technical requirements, etc.
12 January 1993 having amended the Law "On the Procedure
and Conditions of the Restoration of the Rights of Ownership to
the Existing Real Property" , when it was established that
residential houses (or portions thereof) shall be returned in
kind when tenants consent to move, at their own will, into
other residential premises allotted to them, the previous
condition (familiarizing the tenants with their option to move,
at their own will, under the conditions proposed by the local
government and set forth in Article 21 of this Law, or under
other conditions guaranteed by the former owner of the house)
was changed by the tenants' consent to move, at their own will,
by settling on a dwelling unit allotted to them. Under this
norm of the Law, the tenant's refusal to move into other
residential premises, irrespective of the character and motives
thereof, may not be called in question.
In the law of obligation, upon alteration of important
circumstances, terms of the contract may be changed in the
cases and procedure prescribed by laws without the will of the
party to the contract. Therefore, the necessity to restore the
ownership rights, terminated by the occupation government,
justifies changes in housing lease relations. In cases when
restoring the ownership rights of former owners to residential
houses, tenants occupying these houses are allotted other
dwelling units, which comply with the requirements prescribed
by laws, it is considered a sufficient measure employed to
protect the tenants' rights. The condition that, in cases when
the tenants do not agree to change the lease contract,
residential houses shall not be returned, set forth in the
January 1993 Law, is not in conformity with the provisions of
property protection established in Article 23 of the
Constitution.
It should be noted, that persons to whom ownership rights
to residential houses are being restored, had the possibility
to restore the actual houses under different conditions (after
the amendment of the Law they had to face harder requirements
than in the first period of its validity). However, new
requirements may not be applied to the existing legal relations
with the same contents , as it would mean violation of person's
equality before law. Therefore, the amendment of the Law "On
the Procedure and Conditions of the Restoration of the Rights
of Ownership to the Existing Real Property" is flawed in this
respect too.
On the compliance of sub-item 4 of item 2 of the Law of
the Republic of Lithuania "On Amending and Appending the Law
"On the Procedure and Conditions of the Restoration of the
Rights of Ownership to the Existing Real Property"" of 11
January 1994, by which the second part of Article 8 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 4, with the Constitution of the
Republic of Lithuania.
The Seimas by the 11 January 1994 Law has appended item 1
of the Law "On the Procedure and Conditions of the Restoration
of the Rights of Ownership to the Existing Real Property" by
the provision that this Law shall also legislate the
restoration of ownership rights to the existing real property
which was nationalized or otherwise unlawfully socialized, and
which was given over for the ownership of natural persons by
the state, public, co-operative organizations (enterprises) or
collective farms. Thereby, it was established the right for the
former owners to restore ownership rights to residential houses
(or portion thereof), given over by said organizations for the
ownership of natural persons, i. e. to restore the actual
houses or receive due compensation.
The Seimas, by the 11 January 1994 Law has also appended
the second part of Article 8 of the Law by item 4 which
establishes that: "natural persons, having acquired for
ownership houses (or portions thereof) subject to being
returned, consent to move, at their own will, by settling on a
dwelling unit allotted to them".
Property relations, like other civil legal relations,
appear, change and end upon the occurrence of certain juridical
facts. Juridical facts, that serve as causes for emergence of
property relations, are generally as follows: the production of
a new thing by manufacturing or some other activity,
acquisition of property on contracts, obtaining results and
gaining profit. In item 4 of the second part of Article 8 of
the Law mention is made of persons, to whom residential houses
have been transferred by the state, public, co-operative
organizations (enterprises) or collective farms. The right of
transferral of property to other persons (to dispose of
property) is given to the former owner or authorized by him
persons. However, lawful state property could not and did not
appear on the basis of overall nationalization carried out by
the occupation government and other arbitrary acts. The
property alienated from people was only factually managed by
the state (Constitutional Court Ruling, 27 May 1994). As
neither the state nor legal persons, who at that time factually
managed the alienated property, did not own that property,
they, from the present perspective, could not dispose of that
property. However, pursuant to the Soviet normative acts, which
were in force at that time, and the procedure prescribed
thereby, the state, public and co-operative organizations
(enterprises) or collective farms could transfer to natural
persons residential houses (or portions thereof), which were
factually managed by them. In accordance with the 13 March 1989
Resolution of the Council of Ministers of the Lithuanian SSR
and the Council of Trade Unions of the Lithuanian Republic "On
the sale for the private ownership of citizens of dwelling
units and houses belonging to the state and public housing
fund", tenants were provided with the possibility to purchase
not only residential houses (or portions thereof) which were
nationalized or otherwise unlawfully socialized, but also
apartments in such houses.
Natural persons, while acquiring residential houses (or
portions thereof) on the contract, conformed to the rules of
conclusion of contracts established by normative acts that were
in force at that time, performed obligations of the party
ensuing from such contracts. Upon denial of ownership rights
which appeared on the basis of lawful contracts, the contents
of existing legal relations would be changed. Therefore, while
restoring the ownership rights to residential houses
transferred for natural persons by the state, public and
co-operative organizations (enterprises) or collective farms,
the rights of natural persons, who have acquired such property,
should be protected along with the rights of the former owners.
The former owner's subjective rights are restored only
upon the recovery of property or paying out of due
compensation. The Law, however, entitles such a person to the
right to bring an action to the court asking to resolve in
civil procedure his or her request pertaining to the
restoration of the residential house (or a portion thereof),
which has been transferred for the ownership of natural
persons. Obligatory investigation in court of the issue
concerning the restoration of the actual house, conducted upon
such an action, confirms the provision of the Law that, while
restoring the ownership rights to the existing real property,
the priority is given to the returning of actual property.
However, it would not be fair to seize the residential house
(or a portion thereof) against the will of the natural person,
who has acquired it on the contract, without violation of
normative acts that were in effect at the time of acquisition,
and which is under the management and disposition of this
natural person, and to return it to the former owner. While
defending the rights of the former owner, the rights of the
present owner may not be denied in non-dispute procedure. In
case that there is no possibility to return the residential
house (or a portion thereof) for the former owner without the
consent of the present one, the ownership rights, pursuant to
the Law, may be restored to him in other manner. Fair
compensation also ensures the restitution of ownership rights.
Thus, there is no ground for maintaining, that the norm of item
4 of the second part of Article 8 of the Law contradicts the
provisions of the protection of property established in Article
23 of the Constitution.
The above mentioned arguments of the Constitutional Court
are related to the ownership rights to residential houses (or
portions thereof), which had been acquired by natural persons
on the contracts prior to the enforcement of the Law on
Privatization of Dwelling, i. e. before 30 June 1991. In
Article 3 of this Law it is determined that, according to this
Law, residential houses or dwelling units, which have been
seized, confiscated or nationalized by administrative acts or
in other manner from those citizens of Lithuania who are
entitled to the restoration of ownership rights under Article 2
of the Law "On the Procedure and Conditions of the Restoration
of the Rights of Ownership to the Existing Real Property" ,
shall not be sold. On 9 December 1993, the Law on Privatization
of Dwelling was appended by the provision that residential
houses and dwelling units may be sold provided that the owner
consents to receive compensation for the house subject to being
returned on the decision of city or district board. Therefore,
after the enforcement of the Law on Privatization of Dwelling,
the sale of residential houses or dwelling units, disregarding
the prohibition specified therein or violating the conditions
determined in the supplement of 9 December 1993 to this Law,
may not be considered lawful. However, in such cases it is not
the contents of norms of the Law but the application thereof,
which causes "unlawfulness". Disputes pertaining to the
acquisition of residential houses (or portion thereof) and
apartments are investigated in civil procedure.
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 of the Republic of
Lithuania has passed the following
ruling:
1. To recognize that item 4 of the second part of item 2
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" of 12 January 1993, by which item 2 of
the second part of Article 8 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 amended,
contradicts Article 23 of the Constitution of the Republic of
Lithuania.
2. To recognize that sub-item 4 of item 2 of the Law of
the Republic of Lithuania "On Amending and Appending 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""' of 11 January 1994, by which the second part of
Article 8 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 4, is in
compliance with 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.