Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance 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
20 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,
representatives of the party concerned - Pranciškus
Vitkevičius, member of the Seimas of the Republic of Lithuania,
and Ričardas Piličiauskas, Advisor to the State and Law
Committee of the Seimas of the Republic of Lithuania,
representatives of the Seimas,
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 7 June 1995 conducted the investigation of
Case No 25/94 subsequent to the petition submitted to the Court
by Vilkaviškis District Court requesting to investigate if
provision of Article 2 of the Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership to the
Existing Real Property" establishing that the rights of
ownership to the existing real property shall be restored to
the citizen of Lithuania, who is "a permanent resident of the
Republic of Lithuania", is in compliance with the Constitution
of the Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner - Vilkaviškis District Court - requests the
Constitutional Court to investigate if Article 2 of the
Republic of Lithuania Law "On the Procedure and Conditions of
the Restoration of the Rights of Ownership to the Existing Real
Property", 18 June 1991, (Official Gazette "Valstybės Žinios",
No.21-545, 1991; No.3-40, 7-155, 11-278, 15-405, 1992; No.5-83,
32-725, 1993; No.7-100, 14-229, 1994) of which it is
determined, that citizens of the Republic of Lithuania seeking
to restore the right of ownership to the existing real
property, shall be permanently residing in Lithuania, does not
contradict Articles 18, 23 and 32 and Part 1 of Article 47 of
the Constitution.
The Court grounds its request on the fact that it is
established in Article 18 of the Constitution that individual's
right to ownership shall be natural, and thus, inviolable, as
stipulated in Article 23 of the Constitution, and protected by
law. Implementation of these rights is not related to the
choice of the place of residence by the citizen of the Republic
of Lithuania. Moreover, Article 32 of the Constitution applies
no restrictions on the citizen's of Lithuania right to freely
choose his place of residence.
The petitioner, on the basis of these arguments, requests
the Constitutional Court to resolve if this requirement of
permanent residence on the territory of Lithuania set forth in
Article 2 of the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" for the citizens of the Republic of Lithuania seeking
to restore and to protect their rights of ownership which had
been violated previously does not contradict the Constitution.
II
The representatives of the party concerned, the Seimas,
have explained during the preliminary investigation of the
case, that upon the restoration of the independent state of
Lithuania it was not possible to adopt a law which would
provide for the unconditional restoration of property that had
been seized illegally due to the objective reasons, therefore,
such a law was not adopted. 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 on the 18 June 1991 established not only the procedure
for the restoration of the rights of ownership to the property
which had been nationalised or otherwise unlawfully socialised,
but also the conditions for the restoration of the said rights.
One of the main purposes of determining in the Law the
necessary conditions which shall be met by persons seeking to
restore their rights of ownership to the property which had
been nationalised of otherwise unlawfully socialised was
protection of the rights of citizens which are not to be blamed
for nationalisation or other unlawful socialisation of private
property, also inviolability of the interests of society and
satisfaction of its needs.
The Seimas representatives maintained that equally
important is the fact that under the laws of the USSR
(Lithuanian SSR) socialisation of private property had been
carried out in two ways: it had been either nationalised or
transferred to the ownership of state as ownerless. It
therefore sometimes appears problematic to establish due to
what reasons the property was lost and socialised afterwards.
Provision of Article 2 of the Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership to the
Existing Real Property" establishing that the right of
ownership shall be restored to the citizens of the Republic of
Lithuania only permanently residing therein, provided for the
possibility to achieve a partial resolution of the said
problem. According to the petitioner, this requirement
established in the Law did not violate Article 32 of the
Constitution, it even provided for the possibility to implement
provisions established in this Article entitling the citizens
to the right to choose their place of residence in Lithuania
and to settle there.
Refusal to meet the conditions prescribed by the Law, i.e.
to move to the Republic of Lithuania for permanent residence,
should in this case be evaluated as unwillingness to reclaim
the property that had been formerly possessed by the right of
property ownership from unlawful alien management, since even
pursuant to Article 142 of the Civil Code the owner shall have
just a right, not obligation, to reclaim his property from
unlawful alien management. In pursuit of this purpose he has to
meet the requirements prescribed by the Law, i.e. prove that he
is the owner of the property, that management of the property
had been terminated without his will etc.
Representatives of the party concerned have also explained
that the petitioner's statement , that the disputed
"requirement of permanent residence on the Republic of
Lithuania for the citizens" is not in compliance with
provisions of Articles 18 and 23 of the Constitution, may not
be accepted, because the rights of ownership to the property
may arise, also, a person may become an owner only in the event
when he meets the conditions prescribed by the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property", one of which is that
of permanent residence on the Republic of Lithuania.
Established in Part 1 of Article 47 of the Constitution is the
general provision which entitles the citizens and the State of
the Republic of Lithuania to possess land, internal waters,
forests, and parks by the right of ownership. However, it does
not mean that there may not be certain objectively necessary
conditions and even limitations regarding acquisition,
management, use and disposal of such property established in
laws and pertaining both to the subject and the object of the
right of ownership provided such limitations do not infringe
upon the constitutional rights of citizen.
III
In the court hearing, the representatives of the party
concerned have also submitted the following additional
arguments.
The main institute in the case of dispute is citizenship.
Citizenship is a legal relation of citizen to a certain state,
and in a legal relation both parties have their rights and
obligations. Every state establishes its relations to its
people and their rights and obligations. No person may be a
citizen of Lithuania and another state at the same time. This
is due to the fact that the same individual cannot properly
perform his civil obligations to two states. The
representatives have maintained that the Law has not deprived
the persons who are not permanently residing in Lithuania of
the right to the real property either, it has just established
certain obligations that must be met by them. Similar
requirement of permanent residence on the Republic of Lithuania
is set forth even in the Constitution in two cases: in Article
56 it is applied to the candidates for the members of the
Seimas and in Article 78 - to the candidates to the President
of the Republic. Thus, realisation of special rights may be
related to the afore mentioned condition.
In the opinion of the representatives of the party
concerned, another significant moment is the fact that a
considerable period of time has passed since the
nationalisation of the property was begun. Article 46 of the
Constitution establishes that the State shall regulate economic
activity so that it serves the general welfare of the people.
In fact, in a number of cases the property to be returned in
kind has not survived, therefore a due compensation should be
paid out in such cases which would be done at the expense of
other individuals. This would contradict the property interests
of the people residing in Lithuania, and, consequently, welfare
of the people.
Due to the existence of such concrete circumstances the
State therefore had a right to determine the conditions for
restoration of the property as are set forth in Article 2 of
the Law in dispute.
The Constitutional Court
holds that:
1. In the rulings of the Constitutional Court concerning
compliance of provisions of the Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership to the
Existing Real Property" (Case No.12/93, 27 May,1995; Case
No.11/1993-9/1994, 15 June,1994; Case No.1/94, 15 July, 1994;
Case No.10/94, 19 October, 1994; Case No.4/95, 1 June, 1995) it
had been ruled that in accordance with this Law a limited
restitution is being implemented in Lithuania. In the said
rulings also the reasons, conditions and procedure of such
restitution are being investigated.
Nationalisation and other unlawful socialisation of
property in Lithuania was started by the occupation government
more than 50 years ago. Neither the Supreme Council elected by
the people in 1990, nor the executive authorities formed by it
were responsible for the occupation of Lithuania executed half
a century ago and its consequences. Nevertheless, upon the
restoration of the independent state and reinstatement of
validity of the Constitution of Lithuania of 1939 the steps
were taken towards actual restoration of the rights of people
of Lithuania which had been violated by the occupation
government, as right also originates on the basis of certain
norms and imperatives of morality. Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership to the
Existing Real Property" was one of such steps.
Various solutions to the said problem are possible; for
example, a complete restitution, i.e. unconditional restoration
of all the property which had been nationalised or otherwise
unlawfully socialised or just introduction of a certain
compensation for it etc.
The Supreme Council had an unquestionable right to choose
a concrete variant of the solution. It has already been
indicated, that it had chosen a limited restitution. It should
be taken into account that the choice was also predetermined by
hard political and social conditions of that period.
All people of Lithuania had suffered from the occupation:
both those who had remained in Lithuania and those who had
emigrated: their real property if larger above average in
amount, securities and bank accounts had been seized from them
(by nationalisation or other unlawful ways). However, it should
also be noted, that individuals who had remained in Lithuania
and other parts of the Soviet Union throughout the occupational
period were being subjected to discrimination in that respect
that they could not acquire any private property in general.
Besides, during the 50 years of occupation, new generations
came into existence and new property and other social-economic
relations arose which could not be ignored resolving the issues
of restitution of the right to property.
Taking into account the said circumstances the Law in
dispute is to be evaluated as a compromise solution aimed at
elimination of consequences of the occupation in the sector of
economic relations and stemming from the necessity to take into
consideration the social-economic relations that have been
formed in Lithuania. Besides, the adopted Law is to be
evaluated also as an act, by promulgation of which attempts
were made to return to the economy based on the rights of
private ownership and to reconstruct the system of former
property relations which had existed before the occupation.
2. The Law in dispute is an ad hoc special legal act,
which operates in this particular stage of restoration of the
state, i.e. it has a limited validity. Its special legal nature
is first of all derived from the fact that it is applied not to
all property relations, but only to those which arise on the
basis of restoration of the rights of ownership to the existing
real property which had been nationalised or otherwise
unlawfully socialised during the occupation. Thus, this act has
a special subject of regulation. Secondly, it is applied not to
all former owners and their descendants who are residents of
Lithuania, but only to the former owners of the property -
citizens of Lithuania who meet the conditions prescribed by the
Law. Upon the death of a former owner, the right of ownership
to the existing real property is restored not under the norms
of succession law of general nature, but only under a special
procedure to the children (or adopted children), parents (or
foster parents) and spouse of the former owner. Upon the death
of a child (adopted child) of a former owner, the right of
ownership to his portion of existing real property shall be
restored to his spouse and children (adopted children),
provided they are certified citizens in accordance with the Law
on Citizenship of the Republic of Lithuania and are permanent
residents of the Republic of Lithuania. The ad hoc nature of
the Law in dispute in essence also means its relatively
terminated and limited application - it is applied only in
cases of restoration of the above mentioned rights of ownership
during this particular stage of state's existence. This Law
helps to restore the rights of ownership which had been
violated during the occupation, therefore, there is no legal
ground to maintain that this Law in general infringes upon the
inborn rights established in Article 18 of the Constitution.
Another issue is that due to the afore mentioned circumstances
the legislator found no possibilities to apply a complete
restitution, i.e. to implement an overall restoration of the
rights of ownership that had been violated.
The Constitutional Court notes that until the rights of
ownership are restored to the former owners and other persons
seeking to restore their rights of ownership to the existing
real property in accordance with the conditions and under the
procedure prescribed by a special law, the said persons are not
considered owners of the property prior to that. Therefore,
they do not acquire subjective ownership rights to this
property before that (Ruling of the Constitutional Court, 27
May 1994. - Official Gazette "Valstybės žinios", No.42-771,
1994). Thus, norms of the civil law, regulating property
relations and protecting rights of ownership may not be applied
for the protection of subjective rights of ownership which have
not been restored yet, but are the subject of the restoration.
It is the special laws that are applied to specific, non
traditional situations. When the right of ownership is restored
on the basis of such a law, norms of Article 23 of the
Constitution and those of the Civil Code are applied in their
full scope for protection of the said rights.
3. The method of limited restitution has been chosen as
well as conditions and procedure for restitution of the rights
of ownership have been determined in order to take into
consideration social and legal realities that had changed, and
to ensure, that upon restoration of the rights of one group of
persons, rights of other persons are not being violated. Such
standpoint has been formulated already in the Law "On the
Provisional Basic Law of the Republic of Lithuania" adopted by
the Supreme Council on 11 March 1990, in the preamble of which
the necessity to bring the provisions of the Constitution of
Lithuania of 1938 into accord with changing political, economic
and other social relations is stipulated.
The legislator while defining the subjects which are
eligible for the restoration of their rights of ownership have
chosen clear legal criteria: subjects eligible for restoration
of the rights of ownership to the property must possess the
citizenship of Lithuania and a document certifying to that and
be permanent residents of Lithuania. The Law does not deny the
citizens of Lithuania residing abroad the possibility to take
part in the process of restoration of the rights of ownership,
thus there is no ground to maintain that this group of citizens
is subjected to discrimination pertaining to the restoration of
the rights of ownership. The Law treats them in the same manner
as the citizens of Lithuania residing therein. The same
conditions are set forth to all the citizens of Lithuania
seeking to restore their rights of ownership to the existing
real property. The supposition that harder requirements are
applied to the citizens of Lithuania residing abroad is
sometimes made on the basis of the fact that they are residing
elsewhere. This point of view has been formulated by the
petitioner. This is not so in fact. The Law sets forth a
condition which can to be met in reality - residence in
Lithuania. Moreover, that this possibility is guaranteed by
provisions of Parts 3 and 4 of Article 32 of the Constitution:
"A citizen may not be prohibited from returning to
Lithuania.
Every Lithuanian person may settle in Lithuania."
The condition pertaining to the restoration of the rights
of ownership to the existing real property prescribed by the
Law to the citizen of Lithuania and maintaining that he "shall
be permanently residing in the Republic of Lithuania", is not
of universal, general nature, it is applied only in the
implementation of a concrete special right - restoration of the
right of ownership to the existing real property. Thus, the
citizens may freely choose in this case: either to meet the
conditions set forth by the Law and to realise their subjective
right to restore the right of ownership to the existing real
property, or not realise this specific subjective right. The
said condition therefore may not be interpreted as a violation
of the principle of equality of citizens or restriction of
their freedom to move freely.
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 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" stipulating that the right of ownership to the
existing real property is restored to citizen of Lithuania who
is "permanently residing in the Republic of Lithuania", 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.