Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the part of Resolution No. 985 of the
Government of the Republic of Lithuania "On the buildings in
Vilnius which are not subject to privatization and which belong
to the Public Utilities Enterprise of the Secretary Office of
the Government of the Republic of Lithuania", 28 December 1993,
by which the building, situated at the address: Vydūno str.
No.17, Vilnius, is included into the list of the buildings
which are not subject to privatization, with the Constitution
of the Republic of Lithuania, as well as with Part 1 of Article
2 and with Articles 3 and 4 of the Law of the Republic of
Lithuania on Privatization of Apartments
16 May 1995, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Algirdas
Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas
Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas,
Teodora Staugaitienė, Stasys Šedbaras and Juozys Žilys,
the secretary of hearing - Rolanda Stimbirytė,
the party concerned - Vitoldas Kumpa, Head of the Legal
Division of the Secretary Office of the Government and Juozas
Cibulskas, Legal Adviser of the Public Utilities Enterprise of
the Secretary Office of the Government, the representatives of
the Government,
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 3 May 1995 conducted the investigation of
Case No.1/95 subsequent to the petition submitted to the Court
by Vilnius 2nd District Court requesting to investigate if the
part of Resolution No. 985 of the Government "On the buildings
in Vilnius which are not subject to privatization and which
belong to the Public Utilities Enterprise of the Secretary
Office of the Government of the Republic of Lithuania", 28
December 1993, by which the building, situated at the address
Vydūno str. 17, Vilnius, is included into the list of the
buildings which are not subject to privatization, is in
compliance with the Constitution of the Republic of Lithuania,
as well as with Part 1 of Article 2 and with Articles 3 and 4
of the Law of the Republic of Lithuania on Privatization of
Apartments.
The Constitutional Court
has established:
The petitioner - Vilnius 2nd District Court investigated
the civil case on
26 January 1995 according to the action brought in by the
plaintiffs A. Ažubalis,
J. Balnys, R. Jakubėnienė, E. Jurgaitis, A. Petrauskas, A.
Poškus, K. Šimkūnas and K. Valuckas against the respondent -
the Public Utilities Enterprise of the Secretary Office of the
Government, concerning the renewing of the term of putting in
an application for privatization of residential premises and
the obligation to conclude the purchase - sale agreement
concerning the premises, situated at the address Vydūno str.
17, Vilnius, which are leased by them. The court passed the
ruling to suspend the investigation of the case and appealed to
the Constitutional Court requesting to investigate if the part
of Resolution No. 985 of the Government "On the buildings in
Vilnius which are not subject to privatization and which belong
to the Public Utilities Enterprise of the Secretary Office of
the Government of the Republic of Lithuania", 28 December 1993,
("Valstybės Žinios", No. 74 (59) - 1393, 1993; hereinafter in
the ruling referred to as the disputable ruling of the
Government) by which the building, situated at the address
Vydūno str. 17, Vilnius, is included into the list of the
buildings not subject to privatization is in compliance with
Part 1 of Article 2 and with Articles 3 and 4 of the Law on the
Privatization of Apartments, as well as item 2 of Article 94 of
the Constitution.
The petitioner points out in the request that said
building was registered as a hostel according to 13 February
1992 Act No.161p of the Government. Conforming to item 3 of
Article 7 of the Law of the Republic of Lithuania on the
Initial Privatization of State Property, by the disputable
resolution of the Government the residential house, situated at
the address Vydūno str.17, Vilnius, is included into the list
of the buildings which are not subject to privatization. Since
the order of privatization of residential premises is
established by the Law on Privatization of Apartments, the
petitioner thinks that the disputable resolution, by which the
building is included into the list of the buildings which are
not subject to privatization, contradicts Part 1 of Article 2,
as well as Articles 3 and 4 of this Law.
The petitioner also points out that it is doubtful if said
resolution does not contradict item 2 of Article 94 of the
Constitution in which it is established that the Government
implements laws, since in the case under investigation the Law
on Privatization of Apartments is to be applied and not the Law
on the Initial Privatization of State Property. By the
disputable resolution of the Government, the plaintiffs, living
in the premises allotted to them in Vydūno str., are deprived
of the right and possibility, pursuant to the Law on
Privatization of Apartments, to purchase the premises on
dispute.
II
In the process of preparation of the case for the hearing
of the Constitutional Court and in the court hearing the
representatives of the party concerned have explained that the
Public Utilities Enterprise of the Secretary Office of the
Government is an enterprise of a specific purpose which main
activity is to lease and maintain living and non - living
premises, to repair them and carry out other services under the
request of its founders. In order to implement these purposes
the Government has transferred to said enterprise a certain
number of buildings, among them residential houses as well.
Seeking to improve the service of accommodating of foreign
experts as well as to make it cheaper, as Lithuanian state
institutions pay for accommodation of some experts, the
Government by its 13 February 1992 Act No.161p commissioned
Vilnius City Council to transfer the house of 36 apartments,
situated at the address Vydūno str.17, Vilnius, into the
balance of "Tekta" state enterprise. Conforming to Article 365
of the Civil Code this house was registered as a hostel. By 8
June 1992 Act No. 575p, "Tekta" enterprise of a specific
purpose was reorganized and called the Public Utilities
Enterprise of a specific purpose of the Governmental Staff (now
the Secretary Office). According to the affirmation of the
party concerned, this house is of special purpose, purchased on
state assets and meant for temporary accommodation. All
residential houses and hostels, pursuant to the Law on
Privatization of Apartments, till 1992 were already transferred
into a balance of a municipality or were privatized. The
disputable building was acquired from the municipality for
realization of the purposes of the enterprise. The building is
acquired after privatization has been finished, and it
constitutes the authorized capital of the enterprise, it
therefore may not be privatized separately. It is not planned
to privatize the entire enterprise either.
The representatives of the party concerned have pointed
out that former owners have put in their claims to their
buildings which are in the balance of the Public Utilities
Enterprise. In order to prevent the enterprises from selling
apartments under commercial conditions, the disputable
resolution of the Government was adopted. The party concerned
states that the disputable resolution of the Government was
even unnecessary, it was adopted only by seeking to clear out
the position of the Government on this matter.
The representatives of the party concerned has stated that
pursuant to Article 4 of the Law on Privatization of Apartments
local municipalities sell the residential premises which belong
to them, and enterprises and organizations sell the residential
houses and apartments which are in their balance. According to
this Law the persons who permanently resided in the territory
of the Republic of Lithuania till 3 February 1989 and who, on
the day when the Law had been enforced, were the tenants of the
house or flat subject to be purchased or were the members of
the tenants' families or who, after this Law had been enforced,
were allotted a residential premise by established order. The
tenant and the members of his family who have aquired the right
of ownership to the purchased residential house, apartment,
according to said Law may not privatize any other residential
house, apartment. Due to these provisions the residential
houses, which were in the balance of the state enterprise of
the Secretary Office of the Government, as far back as 1991
were transferred into the balance of Vilnius City Seniūnija,
and the tenants who wished to privatize apartments privatized
them.
Since recently fewer experts come to Lithuania, vacant
apartments have been available in the building in Vydūno
str.17, in Vilnius, and they have been leased under commercial
conditions for the employees of state institutions. Residential
premises have been allotted without keeping the order of the
allotment of residential premises. Lease contracts of
residential houses have been concluded, regardless any waiting
lists, usually for one year, validity term of some contracts
therefore is expired. Some persons once have already privatized
the apartments or have acquired them somewhere else, thus, in
the opinion of the party concerned, the tenants of the house in
Vydūno str.17, in Vilnius, pursuant to the Law on Privatization
of Apartments, have no right to privatize the apartments of
this house.
The Constitutional Court
holds that:
1. Legal regulation of privatization of state property has
been commenced by the Law of the Republic of Lithuania on the
Initial Privatization of State Property, adopted by the Supreme
Council of the Republic of Lithuania on 28 February 1991 and
enforced on 10 April of the same year. Until the adoption of
this Law privatization was not possible because by item 3 of
the Resolution of the Supreme Council "On Economic Reform of
Lithuania", 26 July 1990, it was established: "To prohibit to
distribute property of state enterprises, kolkhozes and soviet
farms by using shares, and to commission the Government to take
measures for cessation of division, sale, as well as any other
transference of the property of state enterprises, kolkhozes,
soviet farms, state - co-operative enterprises and other
state-owned enterprises, as well as to nullify all illegal
actions and actions which violated law, performed till the
adoption of this resolution".
It is established in Part 1 of Article 1 of the Law on the
Initial Privatization of State Property of what enterprises,
institutions, as well as other state-owned property
(hereinafter property subject to privatization is referred to
by the term "object privatization") the initial privatization
is regulated by this Law. It is established in Part 2 of the
same Article that in addition to some other objects, "the
procedure and terms for the privatization of dwellings
belonging to State and public housing funds shall be
established by other laws of the Republic of Lithuania". By
this Article then, the objects, subject to privatization
pursuant to the Law on the Initial Privatization of State
Property, have been determined, as well as the property which
privatization is regulated by other laws.
It is established in Part 3 of Article 7 of the Law on the
Initial Privatization of State Property, which has been
observed by the Government while adopting the disputable
resolution, that "Pursuant to the decrees of the Government of
the Republic of Lithuania as well as directives, adopted by
local governments of the higher level on the basis of these
decrees, also other objects that are under the jurisdiction of
the Government or local governments may be designated as not
liable for Privatization. It may also be established that
certain enterprises can operate only as state enterprises". No
exceptions are made in this Law for residential houses
belonging to the state and public housing fund, as well as for
apartments in many-flat houses and in hostels. Therefore, while
solving questions of privatization of the apartments of this
fund, the Law on the Initial Privatization of State Property
may not be referred to. Their privatization is regulated by the
Law on Privatization of Apartments which has been enforced
since 30 June 1990.
It has been established in Part 1 of Article 2 of the Law
on Privatization of Apartments that "the object of purchase -
sale is residential houses belonging to the state and public
housing fund, apartments in many-flat houses and in hostels
(hereinafter referred to as "residential houses, apartments")".
This part is set forth in the Law of 15 July 1993 as follows:
"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 (hereinafter referred
to as "residential houses, apartments")". By this amendment the
list of objects of privatization has been expanded. Pursuant to
said Law the list of residential premises not subject to be
sold, used for hostels, was narrowed. It has been established
that only such rooms in hostels may not be subject to
privatization "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 the Weak- sighted of
Lithuania, the Society of the Deaf and the Society of the
Disabled of Lithuania".
Exceptions and restrictions concerning privatization of
residential premises are pointed out only in the very Law on
Privatization of Apartments. In it no restrictions of sale of
the residential premises, which are in residential houses
belonging to state enterprises, are established.
The Government, by items 1, 2 and 3.4 of its 13 February
1992 Act No.161p, commissioned Vilnius City Council to transfer
with reimbursement the house of 36 apartments in Vydūno str.
17, Vilnius, into the balance of "Tekta" state enterprise, for
accommodation of experts and advisers of foreign states. By
item 3.1 of this Act the Government has obligated "Tekta" state
enterprise (the beneficiary of its rights is the Public
Utilities Enterprise of the Secretary Office of the Government)
to register in Vilnius City Council the house situated at the
address Vydūno str. 17, Vilnius, as a hostel. It is registered
as such by the warrant of 12 March 1992.
Pursuant to Part 1 of Article 365 of the Civil Code
workers, employees, students of higher as well as secondary
education may be accommodated in hostels during their working
or studying time. Contrary to items 1 and 3.4 of said
Governmental Act, other persons are actually accommodated in
the premises. Due to this situation, the discrepancy of legal
status and actual state of the residential premises of the
house in Vydūno str.17, Vilnius, has arisen. The Constitutional
Court does not decide and estimate whether these premises
conform to the status of a hostel or other premises since the
establishment of existence or absence of juridical facts, their
estimation and applying of legal norms in this case is the
prerogative of the Court which investigates the civil case, and
is not within the province of the Constitutional Court (Part 1
of Article 102 of the Constitution, Part 1 of Article 63 of the
Law on the Constitutional Court ). The Constitutional Court
therefore does not estimate the compliance of the disputable
resolution of the Government with Article 4 of the Law on the
Privatization of Apartments.
Taking into consideration the fact that the house in
Vydūno str. 17, Vilnius, is registered as a hostel, the
Constitutional Court concludes that the part of Resolution No.
985 of the Government "On the buildings in Vilnius which are
not subject to privatization and which belong to the Public
Utilities Enterprise of the Secretary Office of the Government
of the Republic of Lithuania", 28 December 1993, by which this
building is included into the list of the buildings which are
not subject to privatization, contradicts Part 1 of Article 2,
as well as Article 3 of the Law on the Privatization of
Apartments.
2. It is established in item 2 of Article 94 of the
Constitution and in item 2 of Article 21 of the Law on the
Government of the Republic of Lithuania that the Government
implements laws. Thus, legal acts adopted by the Government
must not contradict laws, or change norms of laws, as well as
their content.
The Government by its resolutions may not change the
procedure of privatization of the premises of the hostel which
is established by law. Since the house in Vydūno str.17,
Vilnius, is registered as a hostel, the Government by its
disputable resolution has interfered into the regulated
relations of the Law on Privatization of Apartments. The part
thus of Resolution No. 985 of the Government "On the buildings
in Vilnius which are not subject to privatization and which
belong to the Public Utilities Enterprise of the Secretary
Office of the Government of the Republic of Lithuania", 28
December 1993, by which the building, situated at the address:
Vydūno str. No.17, Vilnius, is included into the list of the
buildings which are not subject to privatization contradicts
Part 2 of Article 94 of 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 of the Republic of
Lithuania has passed the following
ruling:
To recognize that the part of Resolution No. 985 of the
Government of the Republic of Lithuania "On the buildings in
Vilnius which are not subject to privatization and which belong
to the Public Utilities Enterprise of the Secretary Office of
the Government of the Republic of Lithuania", 28 December 1993,
by which the building, situated at the address: Vydūno str.
No.17, Vilnius, is included into the list of the buildings
which are not subject to privatization, contradicts Part 2 of
Article 94 of the Constitution, Part 1 of Article 2, as well as
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.