Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of item 2. 2 of the Government of the
Republic of Lithuania Resolution "On partial amendment to the
Government of the Republic of Lithuania Resolution No 470 "On
the implementation 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 15 November
1991", adopted 17 May 1993, with Article 23 of the Constitution
of the Republic of Lithuania and 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".
15 July 1994, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed from the Justices of the Constitutional Court Algirdas
Gailiūnas, Zigmas Levickis, Vladas Pavilonis, Pranas Vytautas
Rasimavičius, Stasys Stačiokas, Teodora Staugaitienė, Stasys
Šedbaras and Juozas Žilys,
the secretary of the hearing - Rolanda Stimbirytė,
the party concerned - Jadvyga Aleksaitė, representative of
the Government of the Republic of Lithuania, the Head of the
Department of Private Ownership under the Ministry of Justice
of the Republic of Lithuania,
pursuant to the first part of 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 12 July 1994 conducted the
investigation of Case No 1/94 subsequent to the petition
submitted to the Court by Tauragė District Court requesting to
investigate if item 2. 2 of the Government of the Republic of
Lithuania Resolution "On partial amendment to the Government of
the Republic of Lithuania Resolution No 470 "On the
implementation 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 15 November
1991", adopted 17 May 1993, is in conformity with Article 23 of
the Constitution of the Republic of Lithuania and the Law "On
the Procedure and Conditions of the Restoration of the Rights
of Ownership to the Existing Real Property".
The Constitutional Court
has established:
The petitioner - Tauragė District Court - requests the
Constitutional Court to investigate if item 2. 2 of the
Government Resolution "On partial amendment to the Government
of the Republic of Lithuania Resolution No 470 "On the
implementation 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 15 November
1991", adopted 17 May 1993, is consistent with Article 23 of
the Constitution and the Law "On the Procedure and Conditions
of the Restoration of the Rights of Ownership to the Existing
Real Property".
The Court in its ruling and the judge in her pleading
specified, without calling in question the requirements set
forth in the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" that under said Law the Government is obligated to
establish the procedure and terms for the restoration of the
existing real property, that "item 2. 2 of the Government
Resolution of 17 May 1993 has changed in essence the principles
governing the restoration of ownership rights and the
appropriate provision of the Constitution of the Republic of
Lithuania".
In the petitioner's opinion, the Government by item 2. 2
of the resolution of 17 May 1993 recognized that the ownership
rights of citizens to residential houses had already been
restored on the decisions adopted by district (city) boards. In
other words, the citizens' rights are already restituted under
said Law, and they have already become the owners of
residential houses and other structures belonging to them by
the right of ownership. Said citizens may not be considered as
applicants or claimants to property, because their ownership
right to houses has been restored, actual houses have been
returned, legal registration has been carried out and they are
already the owners of these houses. The Government, while
obligating district boards by item 2. 2 of said resolution to
reconsider the decisions concerning the restoration of
ownership rights, violated the subjective ownership rights of
citizens as it authorized the district (city) boards to nullify
or change the ownership rights that had been restored to
citizens - former owners.
The petitioner maintains that "only the Court may nullify,
change and deprive of legal relations with regard to ownership
rights, and only on condition that causes thereof are specified
in the law. In the case under consideration, the provision of
the Government Resolution and permission given to district
(city) boards to reconsider the questions concerning the
restoration of ownership rights (in other words, deprivation or
changing of the right of ownership, although this right has
been restored in violation of the laws and Government
resolutions valid at that time) is not permissible and
contradicts Article 23 of the Constitution of the Republic of
Lithuania".
The petitioner explains that the Government Resolution in
dispute regulates in great detail the ways of coping with some
situations. "Speaking about item 2. 2 of said Resolution, the
proposition "to reconsider" is not defined in any way and may
be understood only in a wider sense, i. e. upon establishing
cases of violation of ownership rights, district (city) boards
reconsider their earlier adopted decisions (maybe annul or
amend them) and actually deprive citizens of their property
which had already been returned to them on the previous
decision concerning the restoration of ownership rights".
During preliminary investigation of the case and in the
court hearing the representative of the party concerned
explained that Tauragė District Court, while settling the
disputes pertaining to the restoration of ownership rights, had
to observe not item 2. 2 of said Resolution of the Government
but the provisions of the Law "On Procedure and Conditions of
the Restoration of the Rights of Ownership to the Existing Real
Property" that regulated the procedure and conditions of the
restoration of ownership rights of citizens to the existing
real property.
According to the second part of Article 8 of this Law, the
procedure and time limits for the restoration of residential
houses (or portions thereof) shall be established by the
Government of the Republic of Lithuania. Thus, the Government,
by way of implementing this Law as well as item 12 of the
Supreme Council of the Republic of Lithuania Resolution "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" ", adopted 16 July 1991, drafted and by the 15
November 1991 Resolution confirmed the procedure of the
implementation of the Law of the Republic of Lithuania "On
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" (the procedure
established by the 15 November 1991 Resolution was subsequently
amended by the Government Resolution of 17 May 1993).
In the opinion of the representative of the party
concerned, "the Government of the Republic of Lithuania by way
of implementing the above mentioned procedure and having enough
data and facts to prove that while considering the citizens'
requests and adopting decisions concerning the restoration of
ownership rights to residential houses (or portions thereof)
city (district) boards and other institutions authorized by the
state, do not meet the requirements set forth in the Law on the
Restoration of Ownership Rights and do not observe the
provisions of the procedure for the implementation of said Law,
which is prescribed in Chapter 8 of the Law titled "Conditions
and Procedures for the Restoration of Ownership Rights to
Residential Houses", under item 2. 2 of the 17 May 1993
Resolution obligated these institutions to reconsider the
decisions pertaining to the ownership rights to the existing
real property by amending and defining them more precisely, as
well as eliminating violations provided that they were made in
the restoration of ownership rights".
Prior to the adoption of the Government Resolution of 17
May 1993, the decisions regarding the restoration of ownership
rights were most frequently passed without specifying the
manner of the restoration of ownership rights or compensation
for the property not to be returned, without acquainting the
tenants residing in houses subject to being returned with all
the laws guaranteeing their rights and with their option to
move into other residential premises allotted to them.
Thus, the Government by item 2. 2 of the Resolution of 17
May 1993 did not establish any additional conditions or
restrictions, aggravating the returning of residential houses
(or portions thereof) to their former owners, as it was only
striving to act in conformity with the provision of Article 29
of the Constitution that all people shall be equal before the
law, and to protect the rights and lawful interests not only of
former owners but also of the tenants.
On the basis of the above mentioned arguments, the
representative of the party concerned requests to recognize
that item 2. 2 of the Government Resolution "On partial
amendment to the Government of the Republic of Lithuania
Resolution "On the implementation 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
15 November 1991", adopted 17 May 1993, is consistent with the
Constitution and the Law "On the Procedure and Conditions of
the Restoration of the Rights of Ownership to the Existing Real
Property".
The Constitutional Court
holds that:
1. The first part of Article 23 of the Constitution
contains the provision that property shall be inviolable and
the second part of said Article - that the rights of ownership
shall be protected by law. This constitutional provision
corresponds to the regulation of the restitution of the rights
of ownership by law.
On 18 June 1991 the Supreme Council enacted the Law "On
the Procedure and Conditions of the Restoration of the Rights
of Ownership to the Existing Real Property", whereas on 15
November 1991 the Government passed the Resolution "On the
implementation 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" ".
On 12 January 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" ". Besides,
on 19 January 1993 the Seimas passed the 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" ",
under which the Government had to amend its executive acts.
On 17 May 1993 the Government of the Republic of Lithuania
passed the Resolution "On partial amendment to the Government
of the Republic of Lithuania Resolution No 470 "On the
implementation 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 15 November
1991", (Official Gazette "Valstybės Žinios", No 17-440, 1993),
in item 2. 2 of which it was established that: "decisions
concerning the restoration of ownership rights to the existing
real property, adopted without specifying the manner of the
restitution of ownership rights and in violation of the
requirements prescribed by the law in effect at that time (the
tenants of many-flat houses were not offered other residential
premises, etc.), must be reconsidered until 31 December 1993
according to the laws and Governmental acts that were in force
at the moment of the adoption of the decisions.
2. While examining this case, it is necessary to establish
whether the disputable item 2. 2 is a legal norm or and
individual act according to its contents and nature.
Normative acts are those which contain universally binding
rules of common nature, was not the specific wording of an
appropriate rule is of greatest importance, but the fact that,
on the basis of the contents of the text, one could understand
beyond doubt that the speech goes about the instruction to
certain subjects to act in an appropriate way under certain
circumstances (the Constitutional Court ruling of 19 January
1994, Official Gazette "Valstybės Žinios", No 7-116, 1994).
Taking all this into consideration and having estimated
the disputable item 2. 2 of the Government Resolution, the
conclusion can be drawn that the contents of said item
absolutely complies with the nature of a legal norm. This is
confirmed by the definite instruction formulated in the above
mentioned item, that the decisions concerning the restitution
of ownership rights to the existing real property, adopted
without specifying the manner of the restoration of ownership
rights and in violation to other requirements prescribed by the
law then valid, must be reconsidered.
Item 2. 2 of the Government Resolution according to its
contents is a legal norm of general nature, because it
obligates the State institutions authorised to restore, by
their decisions, ownership rights for citizens to the existing
real property in kind or compensate for it in the procedure
prescribed by the law.
3. Jurisprudence and legal traditions allow to draw the
conclusion that in the sphere of legal regulation there is a
general rule that a legal norm has no retroactive validity.
This means, that normative acts are generally not applied to
the facts and legal consequences which came into existence
prior to the enforcement of these legal acts. In the case under
consideration, legal facts had already occurred - regional
local governments had already adopted legal acts regarding the
restoration of ownership rights. Therefore, even the supreme
institution of State government could not interfere by the
norms of the executive act in the legal relations that had
appeared on the basis of legal facts. All the disputes of such
nature must be settled only in the procedure prescribed by the
Constitution and laws, i. e. they must be resolved in Court. At
the time of the adoption of said Resolution, the legal
procedure for the consideration of such disputes regarding the
restoration of ownership rights, was determined by valid laws.
Upon establishing the violations of the requirements
stipulated in the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property", the Government Resolution "On partial amendment to
the Government of the Republic of Lithuania Resolution No 470
"On the implementation 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 15
November 1991, and the Government Resolution "On partial
amendment to the implementation 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
17 May 1993, i. e. upon establishing the violation of the
subjective rights of citizens or legal persons, or the powers
of State institutions, appropriate persons shall bring an
action to the court in the procedure prescribed by laws with
the purpose to have these rights defended.
4. In the second part of Article 23 of the Constitution it
is established that the rights of ownership shall be protected
by law. Thus, ownership rights may be regulated only by laws
and not by executive acts. The procedure and conditions of the
restoration of ownership rights to residential houses have been
regulated by 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". A resolution of the
Government is an executive legal act. It usually serves for the
implementation of the norms of law, however no legal norm may
substitute the law itself and create new legal norms of general
nature, which in their power would compete with the norms of
law. It is an act of the application of the norms of law,
irrespective of the fact whether this act is of single (ad hoc)
or permanent validity.
Once an institution authorized by the State adopts the
decision to return the actual property or to give compensation
for it, the decision entitles the former owner to the rights of
ownership - such is the legal meaning of the adopted decision
(Constitutional Court of the Republic of Lithuania Ruling of 27
May 1994, Official Gazette "Valstybės Žinios", o. 42-771, No.
42-771, 1994).
Thus, decisions by district or city boards concerning the
ownership rights to the existing real property should be
disputed only in the procedure established by law, and the
Government while obligating these institutions to reconsider
decisions adopted earlier, authorized them to change the
contents of ownership rights against the owner's will.
The notion "to reconsider" present in the disputable item
2. 2 of the Resolution can be interpreted only as the change of
the scope of the contents of the earlier adopted decision
concerning the rights of ownership to the existing real
property subject to being returned by the right of ownership,
i. e. the restriction of the owner's right to manage, use and
dispose of property by an executive normative act. Such
understanding of this notion has been confirmed by the practice
of the application of the norm of item 2. 2 of said Resolution.
The norm of item 2. 2 of the Government Resolution in its
power competes with the Law "On the Procedure and Conditions of
the Restoration of the Rights of Ownership to the Existing Real
Property" and, therefore, contradicts the second part of
Article 23 of the Constitution and the Law mentioned above.
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 item 2. 2 of the Government of the
Republic of Lithuania Resolution "On partial amendment to the
Government of the Republic of Lithuania Resolution No 470 "On
the implementation 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 15 November
1991", adopted 17 May 1993, contradicts the second part of
Article 23 of the Constitution of the Republic of Lithuania and
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".
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.