Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of item 2. 2. 2 of the Government of the
Republic of Lithuania Resolution "On appending and partial
amending of some resolutions of the Government of the Republic
of Lithuania concerning privatization of apartments" of 3
September 1993 with the Law of the Republic of Lithuania on
Privatization of Apartments
3 November 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,
representatives of the party concerned - Irena Butrimienė,
deputy Director of Municipal Economy and Public Utilities
Department under the Ministry of Construction and Urban
Development,
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 October 1994 conducted the investigation
of Case No 16/94 subsequent to the petition submitted by Kaunas
District Court requesting to investigate if item 2. 2. 2 of the
Government Resolution "On appending and partial amending of
some resolutions of the
Government of the Republic of Lithuania concerning
privatization of apartments" of 3 September 1993 is in
compliance with the Law of the Republic of Lithuania on
Privatization of Apartments
The Constitutional Court
has established:
1.
The petitioner - Kaunas District Court on 16 May 1994
examined a civil case upon the actions brought to the court by
plaintiffs N. Kubilienė and A. Bernotaitė against the defendant
- State Institute of Design "Pramprojektas" pertaining to
privatization of rooms in hostels. The Court by its ruling
suspended the investigation of this case and addressed the
Constitutional Court requesting to investigate if the provision
"a tenant who refuses preferential credit for the construction
of a cooperative apartment may not privatize a room in a
hostel" established in item 2. 2. 2 of the Government
Resolution "On appending and partial amending of some
resolutions of the Government of the Republic of Lithuania
concerning privatization of apartments" of 3 September 1993
(Official Gazette "Valstybės Žinios" No 44(29)-897, 1993;
hereinafter referred to as Resolution in dispute) is in
conformity with the Law on Privatization of Apartments.
In the request the petitioner specified that, under
Article 2 of the Law on Privatization of Apartments, apart from
flats, rooms in hostels belonging to the state and public
housing fund shall be the object of purchase-sale. According to
the procedure established in Article 3 of said Law, apartments
rented by the persons who have joined the house building
cooperatives, shall not be privatized in the event that these
persons are given preferential credit. The Law on Privatization
of Apartments does not prohibit to privatize rooms in hostels.
The legislator in the Law on Privatization of Apartments
distinguished two separate notions - "apartments" and "rooms in
hostels". The Government also distinguished these notions in
the Resolution in dispute by specifying that a tenant who
refuses preferential credit for the construction of a
cooperative apartment may privatize the apartment he rents.
Pursuant to item 2. 2. 2 of the Resolution in dispute, a tenant
may not privatize a hostel room in the procedure prescribed by
the Law on Privatization on Apartments even when he refuses
preferential credit given for the construction of a cooperative
apartment.
2.
During preliminary investigation of the case and in the
court hearing the representatives of the party concerned
explained that the State's purpose was to attain that every
family would have a separate flat - either by the right of
ownership or by lease. Such a provision is established in
Article 344 of the Civil Code and item 3, Part 1, Article 11 of
the Law of the Republic of Lithuania on Housing.
On 20 December 1991 the first part of Article 3 of the Law
on Privatization of Apartments was appended by item 4, which
contains the provision that, under this Law, apartments rented
by the persons who received preferential credit for the
construction of a cooperative apartment or house, shall not be
privatized. However, the Government taking into account the
hardships in construction of residential houses and crediting
thereof, also the fact that a new draft Law on Housing was
under way, and striving to reduce the social tension, provided
the possibility for the tenants either to privatize the
residential premises under the Law on Privatization of
Apartments, i. e. in easy-term procedure, or to use the
privileges given by the State for the construction of an
apartment.
On 15 July 1993, the object of premises subject to
restoration under the Law on Privatization of Apartments was
expanded. In the first part of Article 3 of this Law it was
established that the object of purchase-sale shall be
"residential houses belonging to the state and public housing
fund, apartments in apartment houses, apartments and rooms in
hostels (hereinafter referred to as "residential houses,
apartments"). Thereby, rooms in hostels, i. e. residential
premises that do not meet the requirements of a separate
apartment, have also become the object of purchase-sale.
The representative of the party concerned maintained that
more than 90 percent of the residents, who until the adoption
of said amendment to the Law had expressed their will to
privatize apartments, had already privatized them. The
Government has also adopted other resolutions concerning the
hostels, that were meant for the implementation of the
principle that vacant rooms in hostels must be allotted for
other inhabitants residing in these hostels who are allowed to
make residential premises that met the requirements set for
apartments. Therefore, the Government has not provided for any
possibility for persons living in hostel rooms and apartments
with commonly used kitchens to choose whether to buy the leased
room in a hostel in easy-term procedure or to build an
apartment using state support.
In the opinion of the party concerned, the disputable
provision of item 2. 2. 2 of the Government Resolution is in
conformity with the Law on Privatization of Apartments.
The Constitutional Court
holds that:
Upon the returning of the constitutional institute of the
right of private ownership into the legal system of the
Republic of Lithuania, laws were adopted on privatization of
state and public housing fund. Privatization of apartments
became one of the social policies pursued by the State. By way
of implementing this policy, the Law on Privatization of
Apartments was adopted which was enforced on 30 June 1991.
In the first part of Article 2 of the Law on Privatization
of Apartments it was established that "the object of
purchase-sale shall be residential houses, apartments in
apartment houses and hostels (hereinafter referred to as
"residential houses, apartments") belonging to the state and
public housing fund. Item 2 of the Supreme Council Resolution
"On the enforcement of the Law of the Republic of Lithuania on
Privatization of Apartments" of 30 May 1991 prescribes the
conditions the apartments in hostels should meet in order to
privatize them. The conditions are as follows: "1)separate
apartments are turned (reconstructed) into hostels; 2)
residential premises used as hostels meet the requirements of a
separate apartment: there is a separate entrance, living rooms,
kitchen and other facilities of the apartment that comply with
the conditions of that locality". In item 2 of the first part
of Article 3 of the Law on Privatization of Apartments it was
determined that, under this Law, the rooms in hostels would not
be sold. These norms have established the provisions
restricting the rights of some part of the citizens of
Lithuania who live in hostels to privatize residential premises
that fail to meet the requirements set for apartments.
The first part of Article 2 of the Law on Privatisation of
Apartments was formulated in the Republic of Lithuania Law "On
Appending and Amending the Law of the Republic of Lithuania on
Privatization of Apartments of 15 July 1993 in the following
way: "The object of purchase-sale shall be residential houses,
apartments in apartment houses, apartments and rooms in hostels
(hereinafter referred to as "residential houses, apartments")".
According to this norm, rooms in hostels may be privatized
except those hostels "which in the procedure prescribed by the
Government are allotted for the residence of pupils, students
and doctoral students of secondary and vocational schools,
institutions of further and higher education as well as
rooms in hostels belonging to the Lithuanian Union of the
Blind and Weak-sighted, the Lithuania Society for the Deaf and
Lithuanian Society of the Disabled".
The first part of Article 3 of the Law on Privatization of
Apartments entitled "Residential houses and apartments not
subject to privatization" was on 20 December 1991 appended by
item 4 which reads: "4) apartments rented by persons who have
been allotted a plot of land for the construction of an
individual residential house or who have joined the house
building cooperative, if said persons are given preferetial
credits for the construction of a residential house or if the
plot of the land allotted for the construction of an individual
house is in the area connected to the main engineering network,
shall not be privatized".
This norm of the Law contains the provision that
apartments rented by persons who have joined the house building
cooperatives, shall not be privatized, if said persons are
given preferential credits. At the same time, Article 4 of the
Law on Privatization of Apartments was appended by the fourth
part specifying that: "a tenant, along with family members,
upon the acquisition of ownership rights to a residential house
or apartment they have bought, under this Law may not privatize
another residential house or apartment". The legislator has
interpreted that privatization of an apartment is in accordance
with the Law on Privatization of Apartments and preferential
credit given for the construction of an apartment are separate
forms of state support for its residents and the latter may use
only one of them. This is confirmed also in Article 12 of the
Law on Housing prescribing the right for the citizens to choose
one of the forms of support - either to exercise the right to
get preferential credit for the construction or purchase of a
residential house or apartment, or to buy in instalments
residential premises rented from local governments and state
enterprises.
However, the Law on Privatization of Apartments says
nothing about the right to privatize apartments belonging to
the state and public housing fund to the persons who refused
preferential credit offered to them for the construction of an
apartment. The Government under the 22 January 1992 Resolution
"On partial amending and appending the Government of the
Republic of Lithuania Resolution No 309 of 31 July 1991" has
appended item 4 by paragraph 5 and established that in the case
that a tenant belongs to the house building cooperative and
refuses preferential credit, he is allowed to privatize the
rented residential house or apartment.
The contents of general notion "apartment" was expanded
upon the amendment of the first part of Article 2 of the Law on
Privatization of Apartments by the Law of 15 June 1993. The
notion has been appended by a new object of purchase sale, i.
e. rooms in hostels. By this supplement it has been established
that preferential credit for the construction of an apartment
is a uniform condition for privatization of the apartment
irrespective of the fact whether an apartment or a room in a
hostel is bought.
The Government, in the Resolution in dispute having
established the provision that a tenant who refuses
preferential credit for the construction of a cooperative
apartment may not privatize a room in hostel, prescribed
different conditions for privatization of apartments and rooms
in hostels. Such different conditions with regard to individual
groups have not been provided for in the Law on Privatization
of Apartments, therefore this provision contradicts the first
part of Article 2 and item 4, Part 1, Article 3 of said Law.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania as well as Articles 53, 54, 55, 56 of the
Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court has taken the following
ruling:
To recognize that the provision that a tenant who refuses
preferential credit for the construction of a cooperative
apartment may not privatize a room in a hostel, established in
item 2. 2. 2 of the Government of the Republic of Lithuania
Resolution "On appending and amending of some resolutions of
the Government of the Republic of Lithuania concerning
privatization of apartments" of 3 September 1993, which has
amended the fifth paragraph of item 4 of the Resolution "On the
procedure for the privatization, sale and use of apartments",
adopted 31 July 1991, contradicts the first part of Article 2
and item 4, Part 1, Article 3 of the Law of the Republic of
Lithuania on Privatization of Apartments.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.