Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of item 2 of Part 1 of Article 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"
with the Constitution of the Republic of Lithuania
1 June 1995, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed from 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
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the Law on
the Constitutional Court of the Republic of Lithuania, in its
public hearing of 30 May 1995 conducted the investigation of
Case No 4/95 subsequent to the petition submitted to the Court
by Kaunas Area Court requesting to investigate if item 2 of
Part 1 of Article 2 of the Law "On the Procedure and Conditions
of Restoration of the Rights of Ownership to the Existing Real
Property" is in compliance with the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner - Kaunas District Court on 20 July 1994
conducted the investigation of civil case upon the complaint
lodged by I.Čeplevičiūtė pertaining to the annulment of Decree
of the Kaunas City Board in which it is refused to restore
I.Čeplevičiūtė's right of ownership to the existing real
property.
Kaunas district Court by its ruling has suspended the
court proceedings of the civil case and requests the
Constitutional Court to investigate if item 2 of Part 1 of
Article 2 of the Law "On the Procedure and Conditions of
Restoration of the Rights of Ownership to the Existing Real
Property" is in compliance with Article 23 of the Constitution.
The Court has indicated that I.Čeplevičiūtė is the
daughter of an adopted daughter of the former owner. Children
of adopted children are not specified among persons listed in
Article 2 of the said Law, therefore the legal status of the
petitioner, as the daughter of an adopted child (adopted
daughter), is unclear. In the opinion of the petitioner, "the
Court is hardly authorised to extend the list of persons
specified in Article 2 of the said Law, moreover, to apply
norms of Article 573 of the Civil Code". The Court put into
question the issue if the failure to define in Article 2 of the
Law "On the Procedure and Conditions of Restoration of the
Rights of Ownership to the Existing Real Property" rights of
children of adopted children is not in violation with the
constitutional rights of ownership of the said persons.
Thus the petitioner is in essence requesting to
investigate if item 2 of Part 1 of Article 2 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership to the Existing Real Property" (Official Gazette
"Valstybės Žinios", No.21-545, 1991; No.3-40, 1992) is in
compliance with Article 23 of the Constitution.
In his request the petitioner is also requesting to
investigate if in resolution of disputes, which arise on the
basis of the said Law, in court, the norms of the Civil Code
may be applied and if this is in compliance with constitutional
provisions.
Pursuant to this request the Constitutional Court on 16
March 1995 adopted a decision to refuse to investigate it as it
is an obligation of the institution applying the law to resolve
which law is to be applied in a concrete case in the event of
competition of the laws.
II
During the preliminary investigation of the case Chairman
of the Seimas Law and State Committee Pranciškus Vitkevičius in
his written reply to the inquiry of the Constitutional Court
addressed to the person concerned has explained that the mutual
relations and obligations of adopted children and foster
parents are prescribed by the norms of the Matrimonial and
Family Code, in which it is established that they shall be
given rights and obligations as lineal relatives. Therefore, in
his opinion, Article 2 of the Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership to the
Existing Real Property" is in compliance with the Constitution.
The Constitutional Court
holds that:
Upon restoration of the independent State of Lithuania and
restitution of the institute of the right to private ownership
back to the legal system of the state the continuity of
property rights that had been possessed before nationalisation
was recognised. In the legal acts, regulating restoration of
the right to the existing real property, a provision was
promulgated to implement a limited restitution, i.e., to
protect the property rights that had been violated in the
conditions and procedure prescribed by laws. Thus the changes
that took place in the sphere of social relations during the 50
years of occupation were taken into consideration. Therefore,
rights of ownership of the former owners that had been
unlawfully terminated could not be protected on the basis of
the norms of the Civil Code in force at that time. On 18 June
1991 a special Law "On the Procedure and Conditions of
Restoration of the Rights of Ownership to the Existing Real
Property" was adopted.
In item 2 of Part 1 of Article 2 of this Law it is
established that upon the death of a former owner the right of
ownership to his portion of existing real property is restored
to his children (adopted children), parents (foster-parents)
and his spouse. On 14 January 1992 the said item of the Law was
appended by a provision establishing that upon the death of
child of the former owner in the event he is no longer living
the right of ownership to his portion of the existing real
property is restored to his spouse and children. In the norm by
which the Law was appended no separate mention was made of
adopted children of the former owner upon his death.
In Article 1 of the Law "On the Procedure and Conditions
of Restoration of the Rights of Ownership to the Existing Real
Property" it is established that the Law shall legislate the
procedures and conditions of the restoration of the right of
ownership to the citizens of the Republic of Lithuania to the
property which was nationalised or otherwise unlawfully made
public. Thus, this Law provided for the system of protection of
the rights of ownership different from that established in the
Civil Code; norms of the succession law established in the Code
are not applied to this type of legal relation either
However, the legal status of subjects parties to the legal
relation of the restoration of the rights of ownership -
spouse, children, adopted children, parents, foster parents
etc. of general nature, established in the Matrimonial and
Family Code, has not been subjected to a change in the Law "On
the Procedure and Conditions of Restoration of the Rights of
Ownership to the Existing Real Property".
Part 2 of Article 120 of this Code stipulates: "By a
court's decision to approve adoption, the adoptive parents as
well as their relatives and the adopted children as well as
their offspring shall be given personal and property rights and
obligations as lineal relatives". It is to be noted that
regulation of the legal status of adopted child is in essence
analogous to regulations which were established in the standard
acts which were in effect previously.
It means that the contents of legal family relation - that
of adopted children to foster parents as well as their
offspring and other relatives is the same as that of lineal
relatives.
Therefore, provision of item 2 of Part 1 of Article 2 of
the Law "On the Procedure and Conditions of Restoration of the
Rights of Ownership to the Existing Real Property" 'upon the
death of the former owner' is applicable to an adopted child as
well since the legislator has not specifically established in
this provision that the legal status of an adopted child
prescribed by the Family and Matrimonial Code is being
subjected to a change. Such interpretation of a legal norm in
dispute is grounded on the principles of law of general nature
as well as legal traditions. Terms as "children (adopted)" and
"parents (foster-parents)" which are used in the concept of law
and legislation mean, that the concept of "children" includes
the concept of "adopted children" and the concept of "parents"
includes the concept of "foster parents".
Provision of item 2 of Part 1 of Article 2 of the Law "On
the Procedure and Conditions of Restoration of the Rights of
Ownership to the Existing Real Property" stipulating that 'upon
the death of the former owner the right of ownership to his
portion of existing real property is restored to his spouse and
children' in the event when the rights of ownership of the
adopted child of the former owner and those of children
(adopted children) of the latter are restored to the existing
real property they are protected in the same manner as the
rights of a child of the former owner and his children (adopted
children), therefore, it does not contradict 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 taken the following
ruling:
To recognise that provision of item 2 of Part 1 of Article
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" does 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