Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the norms of the Law of the Republic
of Lithuania On Privatization of Apartments, establishing the
privatization of hostel rooms in the institutions of higher
education, with the Constitution of the Republic of Lithuania
27 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 - Sigutė Brusovienė,
the party concerned - Seimas members Julius Beinortas,
Gediminas Adolfas Paviržis, representatives of Seimas, advocate
Kazimieras Motieka and Algirdas Taminskas,
pursuant to Part 1, Article 102 of the Constitution of the
Republic and Part 1, Article 1 of the Law on the Constitutional
Court of the Republic of Lithuania, in its public hearing of 16
June 1994 conducted the investigation of Case No 2/94
subsequent to the petition submitted to the Court by the
Presidium of the Supreme Court of Lithuania requesting to
investigate if the norms of the Law On Privatization of
Apartments, establishing the privatization of hostel rooms of
the institutions of higher education, are in compliance with
the Constitution of the Republic of Lithuania
The Constitutional Court
has established:
1.
Vilnius 2nd District Court by the decision, adopted on 6
October 1993, complied with the suit brought to the Court by
the plaintiffs G. Aleksonis and R. Aleksonienė against the
defendant - Vilnius University - pertaining to the
privatization of a dwelling, and commissioned the University to
sell for the plaintiffs their leasehold in Čiurlionio str.
1/2-15, Vilnius. The Court decision was passed pursuant to the
Law On Privatization of Apartments, establishing the procedure
of purchase-sale of the state and public housing fund to the
tenants leasing dwellings. In the first part of Article 2 of
the Law On Privatization of Apartments, it is set forth that
"the object of purchase-sale is residential houses belonging to
the state and public housing fund, apartments in many-flat
houses, apartments and rooms in hostels". In the second part of
Article 3 of this Law it is specified that "rooms in hostels,
which are allotted to the students, graduates and
post-graduates of the institutions of secondary, vocational,
further and higher education in the procedure prescribed by the
Government, as well as rooms in the hostels belonging to the
Union of the Blind and Weak-sighted of Lithuania, Society for
the Deaf and Society of the Disabled of Lithuania, shall not be
subject to privatization" (Law of the Republic of Lithuania on
the Privatization of Apartments, edition adopted on 15 July
1993, Official Gazette "Valstybės Žinios" No 32-722, 1993).
The Panel of Civil Cases of the Supreme Court of Lithuania
by the ruling of 18 November 1993 left the court decision
unchanged.
The deputy Chairman of the Supreme Court appealed by
protest in order of supervision to the Presidium of the Supreme
Court requesting to nullify the court decision and the College
ruling, to adopt a new decision and to dismiss a suit.
While considering this protest, the Presidium of the
Supreme Court by its resolution suspended the investigation of
the civil case and addressed the Constitutional Court with the
request to investigate if the Law on Privatization of
Apartments, while applying it with respect to the hostel of
Vilnius University, is in conformity with the third part of
Article 40 of the Constitution of the Republic of Lithuania.
2.
The Presidium of the Supreme Court bases the request on
the following arguments.
In the third part of Article 40 of the Constitution it is
established that institutions of higher learning shall be
granted autonomy. Under the statute of Vilnius University, this
institution of higher education having autonomy exercises the
right of inviolability of its territory and buildings. Only the
Seimas of the Republic of Lithuania may change the boundaries
of University territory and give over the buildings, taking the
opinion of the University Council into consideration. The
University Council and Senate, while resolving G. Aleksonis'
request to be permitted to privatize the dwelling, and
expressing the opinion that the hostel in Čiurlionio str. 1/2
was not subject to privatization, relied on said constitutional
provision and Vilnius University Statute.
Vilnius 2nd District Court justifies its decision
maintaining that the Law on Privatization of Apartments is a
special law, adopted later than the statute of Vilnius
University. In the opinion of the Court, in case of the
competition of laws, the norms of the Law on Privatization of
Apartments are applied. The Panel of Civil Cases consented to
such conclusions made by the Court and stated that premises
under dispute are not specified on the list of premises not
subject to privatisation.
In the protest in order of supervision it is argued that
the dispute had to be resolved in conformity with the statute
of Vilnius University, which is a special norm for this
University, whereas the Law on Privatization of Apartments is a
general one, applied in the privatization of the state and
public housing fund of all the Republic. Without the consent of
University Council to privatize the premises under dispute, and
without the adoption of the Seimas decision on this issue, the
Court could not possibly comply with the suit.
3.
J. Beinortas and G. A. Paviržis, representatives of the
party concerned, explained in the Constitutional Court hearing
that the Law on Privatization of Apartments came into being
while realizing the idea that state-owned property, accumulated
in the housing fund, should be transferred to the citizens. By
virtue of this Law, 60 per cent of the residents of Lithuania
under preferential conditions acquired the ownership right to
residential premises leased by them from the state and public
housing fund. Taking the status of the citizens of Lithuania
residing in hostels into account, the Seimas adopted the
amendment, permitting to privatize rooms in hostels as well.
The representatives of the party concerned have maintained,
that the University, as state institution of science and
studies, must abide by the Law on Science and Studies, in
Article 19 of which it is specified that institutions of
science and studies shall use State property in the procedure
established by the laws of the Republic of Lithuania. The Law
on Privatization of Apartments prescribes the procedure of the
disposition of this property irrespective of the jurisdictional
dependence thereof. It is applied with respect to all the
housing fund, formed by the contributions of the citizens of
Lithuania, i. e. independently from the organization to which
it has been ascribed and which disposes of it. In the opinion
of the representatives of the party concerned, the Law on
Privatization of Apartments is in conformity with the
Constitution.
In the opinion of A. Taminskas, representative of the
party concerned, the Law on Privatization of Apartments does
not contradict the third part of Article 40 also due to the
following motives:
1. The Law on Privatization of Apartments was adopted
later than the statute of Vilnius University. Therefore, in
case of the competition of laws, a law which is enacted later
shall be in force, because it expresses the latest will of the
legislator. Furthermore, the Law on Privatization of Apartments
is special as it regulates only specific (not general) legal
relations of privatization ensuing from the management, use and
disposal of property.
2. The University manages, uses and disposes of property
given over thereto not by the rights of ownership but property
entrust. The rights of the state, as the only owner of the
property, are implemented by the body of highest state power
while adopting laws, executive acts, and - in this particular
case - ratifying the statute of Vilnius University. Thus, the
University must manage, use and dispose of state property
(hostels among them) under the statute thereof, although
without violation of the laws of the Republic of Lithuania. The
Law on Privatization of Apartments is binding to all the
subjects, the University among them, because the latter
disposes of its property only in the procedure prescribed by
laws.
3. Pursuant to the statute of Vilnius University, this
institution of higher education, having autonomy, exercises the
right of the inviolability of its territory and buildings, and
only the Supreme Council (Seimas, at present) may change the
boundaries of its territory and seize the buildings, taking the
opinion of the University Council into account. On the
assertion of the representative of the party concerned, the
University's autonomy does not include the right to
inviolability of buildings and territory, because in item 1. 2.
1. of the statute of Vilnius University these concepts are
definitely separated. The opinion of the University Council
with respect to the change of the territory and management of
houses, may not restrict the Seimas' implementation of the
ownership rights of the state - the owner of the property. Only
in the event that the issue concerning the transferral of state
property, given over to the University, to other state
enterprises, institutions, organizations or institutions of
higher education is resolved, this provision should be binding.
In the case of privatization of dwellings (hostels among them),
when the form of property is changed, the supreme body of state
power expresses its will on the issue of disposal of state
property by adopting a law thereof.
4. The Law on Privatization of Apartments has provided the
possibility for the residents of Lithuania to acquire for
private ownership under preferential conditions residential
houses, apartments and rooms in hostels leased from the state
ant public housing fund. The groundless deprivation of the
right, possessed by the employees of institutions of higher
education, to privatize the leased room in the employees'
hostels, would restrict the rights of the employees of the
institutions of higher education and, actually, would legalize
discrimination on the bases of his or her occupation or social
status (Article 29, Constitution).
K. Motieka, representative of the party concerned has
explained that, according to the Constitution, the State does
not regulate the issues concerning the management and disposal
of property given over to the institution of higher education.
Buildings, hostels of the institution of higher education among
them, are within the scope of higher school autonomy. Autonomy
- is some sort of self-government, established by law which
must be observed. The University's autonomy and the right to
dispose of buildings is strictly defined by the statute of
Vilnius University, under which the issues must be resolved
only by the University Council and Senate. The State, having
delegated to the University the right to dispose of property,
may seize it only in the procedure prescribed by laws and
without violation of the statute of the University.
Institutions of science and studies use the property
belonging to them in the procedure established by the laws of
the Republic of Lithuania. All laws are binding to the
University, with the exception of those which determine special
procedure of their implementation. While privatizing the
University hostels, the statute of Vilnius University, which
has the power of law, must be applied, because the Law on
Privatization of Dwelling is applied to the whole state housing
fund, with exception of autonomous institutions of higher
education.
In the opinion of K. Motieka, representative of the party
concerned, neither the statute of Vilnius University, affirmed
by law, nor the Law on Privatization of Apartments, contradict
the Constitution. Both laws are in effect and have different
clearly defined spheres of their validity, thus, the norms of
University's autonomy may not be regulated by the norms of the
Law on Privatization of Apartments.
The Constitutional Court
holds that:
1. In the third part of Article 40 it is established that:
"Institutions of higher learning shall be granted autonomy".
Historically, the idea of the autonomy of the institution
of higher learning came into being in the Middle Ages, when
universities originated as establishments of science and
studies. The autonomy meant that the university, to a certain
extent, was independent from the state, striving to dissociate
itself from the influence of political power, to create an
independent system of regulation of internal activities within
the institution of higher education. The purpose of such
dissociation from the state power was to safeguard the freedom
of science, research and teaching, to protect researchers and
professors from political influence. The development of the
academic autonomy has always been predetermined by the
understanding that science and teaching may normally exist and
induce progress only when they are free and independent. Thus
appeared the principle of academic freedom, which expressed the
striving to protect the researchers' and teachers' freedom of
scientific thought and its expression from outward influence.
Traditionally, the autonomy of the institution of higher
learning is conceived as the right to independently determine
and establish in the regulations or statute the organizational
and governmental structure, relations with other partners, the
order of research and studies, academic syllabus, the order of
student enrolment, to resolve other related questions, to use
the property given over by the state as well as newly acquired,
to possess the territory and buildings as well as other
property, allotted for the needs of research and studies, to
have the guarantee of inviolability. For this purpose, the
institution of higher learning is guaranteed the institutional
autonomy, i. e. certain status, which means that there are
certain spheres of activities, independent from the control of
the executive power.
2. The Magna Charta (1988) of universities declares, that
the foundation of cultural, scientific and technical
advancement of mankind is being created in such centres of
culture, cognition and research as true universities. In order
the university could meet the needs of modern world, its
research and scientific activity must be morally and
intellectually independent from any political, ideological and
economic authority. (The Underlying Principles, Article 1). All
this presupposes a particular status of the University in the
state and society.
3. The spheres of activities of the institutions of higher
learning, which are independent from the influence and control
of governmental institutions and officials, are determined by
the legislator. The latter thereby restricts his own powers
with respect to those spheres. In the states, where academic
autonomy is established in the constitutions, it is the
constitutional provision concerning the autonomy of the
institution of higher education, which obligates the legislator
to restrict his powers.
Upon the restoration of independent state of Lithuania,
said provision was affirmed in the Provisional Basic Law. This
meant the continuity of the tradition of the Lithuanian State
to recognize the university's academic autonomy. The principle
of the autonomy of the institution of higher learning was also
established in the 1992 Constitution of the Republic of
Lithuania. It was particularized in the Law on Science and
Studies as well as statutes of institutions of higher
education, ratified by the Parliament. These legal acts reveal
the contents of academic freedom, set forth the independent
from governmental control spheres of activities of the
institutions of higher education, establish the contents of
self-government, define the procedure of transferral of the
state property to the institutions of higher learning and
determine the guarantees of the use of said and another
property of these institutions.
4. In a democratic law-governed state the power is vested
in the People. The People shall exercise the supreme sovereign
power vested in them either directly or through their
democratically elected representatives. Implementing the state
power, the legislator shall enact laws, which are primary acts
of law, expressing the will of the legislator and having the
supreme legal power. The subjects, to whom the autonomy is
guaranteed by the state, also get into the scope of legal
regulation. However, a newly adopted law may not restrict or
impair those guarantees of self-government, which are
established in the Constitution and particularized in the laws.
The State must guarantee the inviolability of the right of
independent scientific activity in the institutions of higher
education, and ensure due material and financial conditions for
said activity.
The right of the state to regulate external affairs of the
institution of higher learning does not contradict the autonomy
unless it impairs the freedom of research and teaching in the
institution of higher education. Besides, the freedom of the
institution of higher learning to adopt decisions, based on
institutional autonomy, does not mean that these decisions may
establish the priority of institutional interests with regard
to individual rights in the case that it would cause
discrimination of persons. Laws governing general public
relations are valid with respect to the University as well as
to any other institution of higher education.
5. After the restoration of independent state of Lithuania
and restitution of the constitutional institute of private
ownership right, laws on privatization of state and public
property were adopted in Lithuania. Privatization of Apartments
was one of the main directions of the state's social policy.
On 28 May 1991, the Law of the Republic of Lithuania on
Privatization of Apartments established the right to the
residents of Lithuania to acquire for private ownership
residential houses, apartments in many-flat houses and hostels,
leased from the state and public housing fund. However, part of
the residents of Lithuania, living in hostels, could not
privatize residential premises that did not meet the
requirements set for the dwelling units. The residents were
generally provided with dwellings pursuant to labour relations,
although persons leasing rooms in hostels on said basis, upon
privatization of residential premises found themselves in
different legal status than persons who lived in houses or
flats leased from the state and public housing fund.
The Law adopted in the Seimas on 15 July 1993 appended the
Law on Privatization of Apartments, entered hostel apartments
into a list of objects subject to privatization, excluding
those allotted for the pupils, students, graduates and
post-graduates of secondary, vocational, further and higher
education, as well as rooms in hostels belonging to the Union
of the Blind and Weak-sighted, Society for the Deaf and Society
of the Disabled. Thus, the legislator expanded the list of
persons entitled to the right to privatize the dwelling
belonging to the state and public housing fund.
By this norm, the legislator determined that rooms in
hostels, allotted to students and post-graduates, i. e.
persons, who are related to the institution of higher education
only by temporary research and learning relations and residing
in hostels only for some time, shall not be subject to
privatization. Persons, who were settled in hostels of the
institutions of higher education on the basis of permanent
labour relations, acquired the right to privatize the apartment
under lease. In this respect, said persons were given equal
rights with the employees of the enterprises, establishments
and organizations, also residing in hostels.
6. In Articles 12 and 19 of the Law on Science and Studies
it is set forth that the State shall transfer state property to
the state institution of science and studies for possession and
utilization, upon the act of establishment or registration of
said institution, in the procedure established by the laws of
the Republic of Lithuania. Under the Civil Code, the property
transferred to the state institution is public property and
remains the object of the state-owned property (Articles 97 -
98-1). However, the State may not violate the procedure of the
disposition of property, which is established in legal acts in
force. All statutes of the institutions of higher education,
that have been approved up to now, provide for the guarantee
for the institution of higher education to the right of
inviolability of the territory and buildings transferred by the
state in the prescribed procedure. These provisions of
legislators confirm the fact, that the protection of the
property belonging to universities and other institutions of
higher learning should be given special attention by the State.
While setting special rules for the protection of said
property, the fact, that the property given over for
universities and other institutions of higher learning is the
material basis for the implementation of freedom of science and
studies, should be taken into consideration. The boundaries of
the territories of the institutions of higher education,
jurisdictional dependence of buildings may be changed or they
may be seized only taking the opinion of University Council
into account. The provision that the opinion of University
Council should be regarded while seizing the buildings, is also
established in the statute of Vilnius University (item 1. 2.
2.).
By adopting supplements to the Law on Privatization of
Apartments of 15 July 1993, an attempt was made to retain the
uniform provision in the sphere of privatization of property.
However, this does not mean that an institution of higher
education, its scientific and learning interests may be denied
by the power legislator. Taking the fact, that the scope of
legislator's powers shall be defined by the Constitution
(Article 5), into consideration, the legislator may not adopt
decisions, that would restrict the freedom of science, research
and teaching, established in Article 42 of the Constitution, as
well as autonomy granted to institutions of higher learning by
Article 40 of the Constitution. Therefore, the Seimas, taking
the constitutionally prescribed autonomous status of
institutions of higher learning into account, provided for
exception in the cases when privatization of rooms in hostels
might influence the scientific and learning interests, i. e.
the Law prohibited privatization of hostels, allotted for
students and post-graduates (also for residents, pursuant to
amendments to the Law on Privatization of Apartments, adopted
on 19 May. 1994).
Cases when the dwelling unit in a hostel of the
institution of higher education is allotted for permanent
employees of said institution, should be regarded differently.
The legal status of these persons according to the laws on
apartments is analogous with the status of persons residing in
the hostels of other enterprises, establishments and
organizations. The explanation that, taking the jurisdictional
dependence of these hostels into consideration, different rules
of privatization of hostels should be applied, is not grounded
and contradicts the principle of all people's equality before
the law, established in Article 23 of the Constitution. The
privatization of hostels belonging to the institutions of
higher education, inhabited by permanent employees of these
schools, does not violate the institution's freedom in the
sphere of science, research, teaching and self-government. The
legislator, while establishing the possibility to privatize
such hostels, resolved consistently the general issue, which
does not belong to a specific sphere of autonomy of the
institution of higher education.
It should be noted that, by way of implementing the
provisions of the Law on Privatization of Apartments, part of
residential premises in hostels have already been privatized,
on the consent of institutions of higher education, Vilnius
University among them. While denying the right of employees,
having permanent labour relations with the institution of
higher learning, to privatize the dwelling in hostels, their
civil capacity would be unlawfully restricted.
If supplements of 15 July 1993 to the Law on Privatization
of Apartments were interpreted as a basis for seizing and
giving over of University buildings, the fact that the
legislators were aware of the opinion of the University
Council, must not be disregarded. As the shorthand record of
the Seimas sitting of 13 July 1993, in which amendments to said
Law were considered, can prove, the opinion of the University
Council, expressed in the resolution of 10 January 1992, has
been submitted to the Seimas.
Pursuant to the above mentioned motives, the
Constitutional Court has drawn the conclusion that the norms of
the Law of the Republic of Lithuania on Privatization of
Apartments, permitting to privatize rooms in the hostels of
institutions of higher education, inhabited by permanent
employees of the schools, are in conformity with 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 the norms of the Law on Privatization of
Apartments, establishing the privatization of rooms in hostels
of the institutions of higher education, do 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.