Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of item 4 of Part 2 of Article 8
and the norm of Part 4 of the Law "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
22 December 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 Šedbaras and
Juozas Žilys,
the secretary of the hearing - Daiva Pitrėnaitė,
the petitioner - the Seimas members Andrius Kubilius and
Vidmantas Žiemelis, representatives of a group of the Seimas of
the Republic of Lithuania members,
the party concerned - Alfonsas Vileita, the Seimas
representative, the adviser of the Seimas Committee of State
and Law,
pursuant to Part 1, Article 102 of the Constitution of the
Republic of Lithuania and Part 1, Article 1 of the Law on
Constitutional Court of the Republic of Lithuania, in its
public hearing on 14 December 1995 conducted the investigation
of Case No.9/95 subsequent to the petition submitted to the
Court by a group of the Seimas of the Republic of Lithuania
members requesting to investigate if Article 2 of the 3 July
1995 Law of the Republic of Lithuania "On Amending and
Appending 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"", in which Article 8
of the 18 June 1995 Law of the Republic of Lithuania "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" has been set forth
anew, is in compliance with Articles 23 and 29 of the
Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
The petitioner - a group of the Seimas members - requests
to investigate if Article 2 of the 3 July 1995 Law "On Amending
and Appending 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"" (Official Gazette
"Valstybės žinios", No 59-1465), in which Article 8 of the 18
June 1991 Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" (hereinafter in the ruling referred to as the Law)
has been set forth anew, is in compliance with Articles 23 and
29 of the Constitution.
In his request the petitioner indicates that the Supreme
Council of the Republic of Lithuania in Article 14 of the
passed Law enumerated conditions, under which residential
houses shall not be returned, they shall be bought out by
compensating the owner with equivalent kind. The list of the
provided conditions is exhaustive and final. In all other cases
Article 8 of the Law provides the former owners with the
freedom of choice, i.e. they may take back a residential house
or they may decide not to take it back and be compensated with
equivalent kind. The Supreme Council, having passed the
decision to restore the ownership rights to the former owners
of residential houses, in the aforesaid Law consolidated the
right guaranties for tenants who reside in houses subject to
restoration. The guaranties are provided by Article 21 of the
Law, in accordance to which a tenant, who pays rent which does
not exceed the amount established by the Government, might not
be evicted from the residential house which had been returned
to the former owner, if the guaranties for the tenants provided
in the aforesaid Article had not been secured. According to the
programme, prepared and carried out by the Government, local
governments had to provide persons who resided in residential
houses subject to being returned with a dwelling place or, if a
person so requested, to allocate, free of charge, a plot of
land for the construction of a house and credits on easy terms
for the aforesaid construction. The aforementioned provisions
of the Law had been followed until the elections of the Seimas.
A part of the former owners got back residential houses without
violating tenant rights.
The Seimas on 12 January 1993 passed the Law "On Amending
the Law "On the Procedure and Conditions of the Restoration of
the Rights of Ownership to the Existing Real Property"", in
which Article 8 of the Law was set forth anew. It was provided
in item 4 of this Article, that the procedure and time limits
for the restoration of residential houses shall be established
by the Government pursuant to the provision that the
residential houses shall be returned in the case that the
tenants who occupy houses subject to being returned at their
own free will consent to move into the allotted other dwelling
place. The Constitutional Court in its 15 June 1994 Ruling held
that according to this norm the manner of restoration of the
ownership rights to a residential house (or a portion thereof)
is determined by the subjective factor - the consent or refusal
of tenants to move into the allotted dwelling place - which is
established by the Law, and not by objective circumstances. The
Constitutional Court passed the ruling, that the aforementioned
amendment of the Law contradicts Article 23 of the
Constitution. In addition, the Constitutional Court noted that
"persons to whom ownership rights to residential houses are
being restored, had the possibility to restore the actual
houses under different conditions (after the amendment of the
Law they had to face harder requirements than in the first
period of its validity). However, new requirements may not be
applied to the existing legal relations with the same contents,
as it would mean violation of person's equality before law".
The petitioner indicates that after the Constitutional
Court had passed its 15 June 1994 ruling, on 3 July 1995 the
Seimas amended the Law once again and in Part 2, Article 8 of
the Law determined a supplementary condition. It burdens former
owners or altogether puts a stop to getting back residential
houses. Item 4 of Part 2, Article 8 of the Law has been set
forth anew as follows:
"Residential houses (or portions thereof), apartments
shall be returned in kind in the case that:
/.../ 4) the tenants who occupy houses (or portions
thereof), apartments subject to being returned are provided
with a dwelling place conforming to the requirements of Article
358 of the Civil Code of the Republic of Lithuania".
The essence of the aforesaid amendment is that returning
of illegally disseized property depends on providing the
tenants with some other dwelling place. The aforementioned
amendment of the Law signifies that illegally disseized
property shall not be returned.
The Constitutional Court in its 15 June 1994 ruling noted
that new requirements may not be applied to the existing legal
relations with the same contents, as it would mean violation of
person's equality before law. Having adopted the aforesaid
amendment of the Law, the Seimas violated this equality, as
certain persons have restored residential houses, whereas now
some other persons have to face harder requirements. In the
opinion of the petitioner, getting back residential houses
becomes dependent on individual local governments. If a local
government is able to allot tenants who occupy residential
houses subject to being returned some other dwelling place,
then the aforesaid houses will be returned, but if some other
local government has no such possibilities, residential houses
may not be returned in kind. Hereby it is confirmed by the
Seimas, which set forth Part 4, Article 8 of the Law as
follows: "In all other cases, not specified in Part 2 of this
Article, the ownership right to residential houses (or portions
thereof), to apartments shall be restored by buying them out
/.../". This norm restricts the freedom of choice of the former
owners, which was established in the Law until its amendment
and appending. Buying out, and later on privatisation will
signify that a tenant becomes a new owner (and that cannot be
treated as "public needs"), but first of all the true owner is
being deprived of his property. Therefore the aforesaid
amendments of the Law violate the principle of inviolability of
property, as well as the equality of rights of citizens which
are protected by the Constitution.
II
Replying the Constitutional Court paper to the party
concerned, when the case was being prepared for the Court
hearing, Pranciškus Vitkevičius, the Chairman of the Seimas
Committee of State and Law, explained in writing that the
Constitutional Court had investigated the compliance of
appending and amendment of individual Articles or norms of the
Law with Article 23 of the Constitution for many a time. Taking
into consideration all historical and social circumstances, in
the rulings of the Constitutional Court the main provisions of
the continuity of private ownership rights and the restoration
of them were formulated. One of the most important provisions
is that the Suprerme Concil of the Republic of Lithuania by the
11 March 1990 Law "On the Reinstatement of the 12 May 1938
Constitution of Lithuania" renewed the validity of the 1938
Constitution of Lithuania within the total territory of
Lithuania, suspended the validity of the Articles regulating
the state governing, retained to be in force Chapter 8
"National Economy", and thereby it signified the restitution of
the institute of the right of private ownership and in fact its
continuity. The Constitutional Court in its 27 May 1994 ruling
noted that "it is impossible to impartially reconstruct the
complete former system of property relations which existed in
Lithuania in 1940". In its 8 March 1995 ruling the
Constitutional Court held that "One of the main goals of law,
in the regard as the way of regulation of social life, is
justice. It is impossible to attain justice by satisfying
interests of only one group or one person and by denying
interests of others. While behaving one-sidedly, the humane
purpose of law would be disregarded and probability of social
conflicts would increase". When solving the ownership right
restoration problems, one should pursue the provision of the
preamble of the Constitution which states that the Lithuanian
nation strives for "an open, just, and harmonions civil society
and law-governed State".
The initial norm of item 2 of Part 2, Article 8, that
residential houses shall be returned in the case that "tenants,
occupying houses subject to being returned, and which are
occupied by more than one family, are familiar with all of the
laws guaranteeing their rights, and with their option to move
under the conditions proposed by the local government and set
forth in Article 21 of this law, or under other conditions
guaranteed by the former owner of the house", was not concrete.
It satisfied neither house owners, nor the tenants who resided
in the houses subject to being returned. The House Owner
Associations claim that the tenants who reside in houses
belonging to former owners should be evicted unconditionally
and without delay, as former owners desire to freely possess,
use and dispose of their property. But presently the state is
not economically capable during a short period of time to
provide all the tenants who reside in houses subject to being
returned with a dwelling place.
The chairman of the committee points out that the tenants
who have rallied the Society of the Homeless, are not satisfied
with being" familiar with all of the laws guaranteeing rights",
as the owners, having got back their houses, take measures
(among them illegal ones as well) to evict tenants. Hence
conflict situations arise. The provision of Article 8 of the
disputable Law is more accurate, there is no vagueness of the
previous norm:
"Residential houses (or portions thereof), apartments
shall be returned in kind in the case that:
/.../ 4) the tenants who live in houses (or portions
thereof), apartments subject to being returned are provided
with a dwelling place conforming to the requirements of Article
356 of the Civil Code of the Republic of Lithuania".
The aforementioned norm has established that houses (or
portions thereof) shall be returned to the owners by providing
the tenants with some other dwelling place, into which they may
be moved by legal procedures, and not" at their own free will",
as it had been established by the initial norm.
In the paper it is noted that the Constitutional Court
indicated in its previous rulings that "the provision that,
providing there is no possibility to restore property in kind,
it must be adequately compensated for, does not contradict the
principles of inviolability of property and protection of
property ownership rights, because fair compensation also
ensures restoration of property ownership rights". Under such
circumstances, the new wording of Article 8 of the Law does not
contradict Article 23 of the Constitution.
According to the Chairman of the Committee, the motive of
a group of the Seimas members that "new requirements may not be
applied to the existing legal relations with the same contents,
as it would mean violation of person's equality before law",
cannot serve as the basis to recognize that the legal norms
under investigation contradict Articles 23 and 29 of the
Constitution for as long as the ownership rights have not been
restored, persons, claiming the restoration of the aforesaid
rights, are not the owners. If some of its shortcomings come to
light when implementing a law, or there appear some changes in
economy, the legislator may change legal norms to the interests
of society, thereby hardening conditions of some groups and
facilitating those of other groups of individuals. Otherwise
there would be no progress in regulations of existing legal
relations.However, newly adopted legal norms do not possess
retroactive validity. Item 4 of Part 2 and Part 4 of Article 8
of the Law are in compliance with Article 29 of the
Constitution as they do not violate the provisions of equality
of persons: the owners, as well as the tenants, are treated
equally, disregarding their sex, reace, nationality, origin,
social status, religion, convictions, or options.
III
In the process of judicial investigation Andrius Kubilius
and Vidmantas Žiemelis, representatives of the petitioner,
confirmed the motives set forth in the request of a group of
the Seimas members. They have also indicated that when passing
the law on the restoration of the rights of ownership, the
priority was given to restore property in kind. Initial wording
of the Law provided the possibility to return houses in kind,
whereas after the 3 July 1995 amendment of the Law had been
adopted, to do it became impossible.
The Law passed on 18 June 1991, as well as the Government
15 November 1991 Resolution No 470 on enacting the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" of the Republic of
Lithuania, and the Government 27 October 1992 Resolution No 805
"On Programmes to Provide Tenants Who Live in Houses Subject to
Being Returned to Former Owners with Apartments", established a
system which reconciled both the interests of former owners and
of the tenants who live in the houses subject to being
returned. That programme was being carried out successfully.
The aforesaid Government Resolutions have been valid up to the
present, they have not been abrogated, nevertheless the
Government is not carrying them into effect, and the budget
does not provide finance for the programme. The present
disputable wording of item 4 of Part 2, Article 8 of the Law
hardens returning residential houses in kind.
The restoration of the ownership rights thus becomes
dependent on an individual local government and its ecomonical
capacity. According to Article 19 of the Law a local government
shall pass the decision concerning the returning of property in
three month's time. It cannot pass decision to return property
in kind, as at first it has to provide a tenant with a dwelling
place. Alongside the part of 27 October 1992 the Government
Resolution No 805 which was provided in the programme to supply
tenants who live in houses subject to being returned with
apartments that the tenants shall be provided with apartments
in ten year's time, is no longer being carried into effect.
In the opinion of the representatives of the petitioner,
the new amendment of Article 8 contradicts Article 23 of the
Constitution. They have also pointed out, that many former
owners have been restored the ownership rights to houses
pursuant to the initial wording of the Law, they receive rent,
whereas the conditions of other former owners, after the Seimas
had amended the Law on 3 July 1995, became graver. Thus the
principle of people's equality before the law, granted in
Article 29 of the Constitution, is violated.
IV
Alfonsas Vileita, a representative of the party concerned,
in the process of judicial investigation explained that during
the last 50 years complex socio-economical relations have
arisen, which must be taken into account. There is no precise
decision of how to return residential houses, therefore while
adopting normative acts it is necessary to endevour to
co-ordinate the interests of all groups of society, as well as
to consider public needs.
There exist two groups of persons concerned: former owners
and tenants who live in houses subject to being returned. The
initial wording of the Law did not provide the co-ordination of
interests of the aforesaid groups. The former owners are
dissatisfied with Article 21 of the Law which provides
guaranties for the tenants and limits the ownership right of
the owner to freely dispose of their property. They are
dissatisfied with the rent rate amount which was established by
the state as well. On the other hand, the tenants would become
like the homeless. Besides, there was a situation when the
tenants were not able to get apartments in new houses. It is
difficult for the state to co-ordinate the interests of the
aforesaid groups. If the conditions of one group of persons are
getting better, when coordinating the interests, consequently
the conditions of the other group is getting graver.
The Constitutional Court has held that until the ownership
right is not restored, persons, claiming houses and apartments,
shall not be considered as owners, whereas Article 23 of the
Constitution in all its extent protects only the rights of the
owner. Initially the Law had no provision that property shall
be unconditionally returned in kind. The Law established that
whenever the property is not being returned in kind, the former
owners shall be able to choose the manner of compensation,
which ensures restoration of the ownership rights as well,
provided by the Law. The Constitutional Court has held so. When
assessing the Law, two problems arise: that of conformity of
the amendments with the Constitution and that of the quality of
the Law. The Constitutional Court does not solve the Law
quality problems, as it is the competence of the Seimas. In the
opinion of the representative of the party concerned, the 3
July 1995 amendment of the Law is in compliance with Article 23
of the Constitution.
The representative of the party concerned maintained that
the aforesaid amendment of the Law is in compliance with
Article 29 of the Constitution. This Article provides that all
people shall be equal before the law disregarding their sex,
race, nationality, origin, social status, religion,
convictions, or options. Former owners, as well as tenants, are
treated equally on that basis. The motive of the petitioner,
that a person's equality before law is violated, as the initial
wording of the Law was applied to one group of persons, whereas
the Law establishing stricter prescriptions will be applied to
some other persons, is groundless. In the opinion of the party
concerned, when adopting normative acts, the interests of
certain groups of society are being co-ordinated. In the
process of enacting the law passed, some of its merits and
negativities come to the fore. Social relations having changed,
the legislator may change legal norms, otherwise it would be
impossible to regulate them and there would be total legal
stagnation. The restoration of property relations are
continuous, therefore they may be regulated, the only principle
being that newly adopted legal norms have no retroactive
validity.
In the initial wording of Article 8 the concept of "free
will" signified total impossibility to evict tenants in legal
form. If compared to the initial wording, now the possibilities
of former owners to restore the ownership rights are not being
diminished. After a tenant is provided with some other dwelling
place, conforming to the requirements of Article 358 of the
Civil Code, the property shall be returned to the former owner,
and the tenant may be evicted in legal form.
If the residential houses were returned together with the
tenants who live in the houses subject to being returned, there
would emerge the problem of compliance of Article 21 of the Law
with Article 23 of the Constitution. The question would also
arise, if the state is competent to establish the amount of
rent rate and restrict the right of the owner to use and
dispose of his property.
On the grounds of the aforementioned motives, the
representative of the party concerned requested not to comply
with the request of the petitioner.
The Constitutional Court
holds that:
The Seimas in Article 2 of the 3 July 1995 Law "On
Amending and Appending 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"" set forth anew
Article 8 of the Law under amendment. The Seimas in item 4 of
Part 2 of the aforesaid Article established that residential
houses (or portions thereof), apartments shall be returned in
kind in the case that "tenants who occupy houses subject to
being returned, are provided with a dwelling place conforming
to the requirements of Article 358 of the Civil Code of the
Republic of Lithuania". It was established in Part 4 of the
aforesaid Article that "in all other cases, not specified in
Part 2 of this Article, the ownership rights to residential
houses (or portions thereof), to apartments shall be restored
by bying them out from persons specified in Article 2 of this
law on the basis of the option of the aforesaid persons /.../".
The petitioner requests to submit that the aforementioned
norms of the Law contradict Articles 23 and 29 of the
Constitution.
1. Upon nationalisation and socialization in other
unlawful manner of land, banks, heavy industry, other property,
including residential houses, carried out by the occupation
government, the human natural rights to possess private
property was denied. The property illegally disseized from
people did not become state property and it is to be considered
disposed of by the state only in fact.
The restoration of the institute of the right of private
ownership signified the provision of the restored Lithuanian
state to protect person's violated private ownership rights. It
was impossible to impartially reconstruct the complete former
system of property relations, as it was necessary to take into
consideration socio-economical and other social relations,
which had changed.
The obstacle in restoring the ownership rights by
returning residential houses to former owners in kind was that
the dwelling place of nationalized or socialized in other
unlawful manner houses was allotted to other persons who used
it on lease. The lessor of dwelling places was the occupation
government, as it physically and economically disposed of
houses, nationalized and socialized in other unlawful manner.
The aforementioned dwelling places were included into state
housing fund, which later on was beeing increased by
constructing other residential houses and by other manner. The
dwelling places of the aforesaid fund were rented out for
residents with neither restriction of time period of rental
relations, nor setting any obligations in respect to the former
owners. It should be noted that then there existed a situation
when a person could not freely choose the dwelling place being
allotted. Having refused of the dwelling place being allotted,
the person, as a rule, would lose a possibility to get some
other dwelling place. The right to construct for oneself a
residential house, as well as the right to get a dwelling place
from a being created state, public, or residental house
construction cooperatives' housing fund, was restricted. Though
there existed no private ownership, people, however, were
allowed to make transactions, and to exchange dwelling places
among them. Thereby, a person could become a tenant of a house
(or a portion thereof), or of an apartment nationalized or
socialized in other unlawful manner. Thus it was occupation
government which violated the rights of former owners, and not
the tenants, therefore a tenant cannot have any obligations in
respect to the former owners. The Lithuanian state, having
restored the institute of the right of private ownership,
commited under established conditions and procedure to restore
the rights of ownership to the existing residential houses.
One of the main objectives of law as means to regulate
social life is justice. Justice is one of basic moral values,
as well as that of basic foundations of state governed by law.
The aspiration after justice and state governed by law is
established in the preamble of the Constitution. Justice may be
implemented by ensuring a certain equilibrium of interests, by
escaping fortuity and self-will, instability of social life and
conflict of interests. It is impossible to attain justice by
recognizing the interests of only one group or one person and
by denying the interests of others at the same time. It is
impossible to solve clashes of interests by making absolute the
protection of rights of a person who attempts to restore the
rights of ownership to a residential house by getting it back
in kind, and at the same time denying the right of tenants to
possess a dwelling place.
The legislator chose the protection of the ownership
rights by returning the house in kind, ensuring at the same
time the tenant right to a dwelling place. The aforesaid
co-ordination of rights was established in item 2 of Part 2,
Article 8 of the Law. In it it was established that the
ownership rights to residential houses (or portions thereof)
shall be restored in kind, providing the aforementioned houses
are not subject to being bought out by the state, in the case
that tenants, occupying houses subject to being returned, and
which are occupied by more than one family, are familiar with
all of the laws guaranteeing their rights, and with their
option to move under the conditions proposed by the local
government and set forth in Article 21 of this Law, or under
other conditions guaranteed by the former owner of the house.
The Supreme Council in item 3 of its 16 July 1991 Resolution
"Regarding 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"" in which it was prescribed: "To
establish that tenants who occupy houses subject to being
returned are familiar with their option to move only in the
case that a concrete dwelling place which is being allotted and
which is in conformity with the prescriptions of Article 94 of
the Code of Apartments of the Republic of Lithuania shall be
indicated". It was established in Article 94 of the Code of
Apartments that when citizens are being evicted, the other
properly furnished dwelling place allotted to them shall be in
conformity with the prescriptions of Articles 42 and 43 of the
Code of Apartments, and the allotted dwelling place shall be no
less than that possessed by a person who is being evicted, etc.
Similar standards for some other proper dwelling place which is
being allotted are prescribed in Article 358 of the Civil Code.
Thus from the very first day of its coming into force the Law,
when returning residential houses to former owners, has ensured
the rights of tenants providing that tenants shall be allotted
some other properly furnished dwelling place.
The right of tenants who reside in houses subject to being
returned to former owners to provide themselves with some other
dwelling place is established in item 1 of Part 2, Article 6
and in item 2 of Part 1, Article 9 of the Law "On Enabling the
Population of the Republic of Lithuania in Providing Themselves
with Dwelling Places", adopted on 9 April 1992, as well as in
Article 356 of the Civil Code, appended on 17 May 1994.
If a former owner requests to restore a house (or a
portion thereof), or an apartment in kind, the legal condition
of the tenant shall remain intact, however, the tenant is not
entitled to privatize of the aforesaid dwelling place. The
lease with the tenant may be forfeited and he may be evicted in
the case that the condition of item 4 of Part 2, Article 8 of
the Law is met, i.e. he is allotted a corresponding dwelling
place. Thus a former owner may restore a residental house when
the condition prescribed in the Law is met. Whenever it is not
met or the property is not correspondingly compensated for, the
subject rights of a former owner have not yet been restored. It
signifies that only the restored ownership rights are protected
by every legal manner. The aforementioned ownership right
protection is established in Article 23 of the Constitution.
When restoring ownership rights to residential houses (or
portions thereof), or apartments, there exist a variety of
possible manners to co-ordinate the protection of the rights of
former owners and the rights of tenants. The condition of the
restoration of ownership rights, prescribed in item 4 of Part
2, Article 8 of the Law, provides that some other dwelling
place shall be allotted conforming with the prescriptions of
Article 358 of the Civil Code. The aforesaid condition is bound
with circumstances which neither depend on the tenant, nor on
his subjective will. The allottment of some other dwelling
place to tenants is the problem of law enforcement, the
economical capacity of the state and that of the possibilities
of the owners. In order to solve this problem, as well as that
of relations between former owners and tenants who occupy the
houses of the former, the Government must prepare corresponding
programmes (Part 5, Article 21 of the Law, Article 14 of the
Law "On Enabling the Population of the Republic of Lithuania in
Providing Themselves with Dwelling Places"). The implementing
of programmes is an economical problem and it is being solved
when discussing, adopting and fulfilling the budget.
The statement in the request of the group of the Seimas
members that after the Constitutional Court had promulgated its
15 June 1994 ruling, the condition of item 2 of Part 2, Article
8 of the Law, providing that tenants are familiar with real
opportunity at their option to move under the conditions
proposed by the local government and set forth in Article 21 of
this Law, or under other conditions guaranteed by the former
owner of the house remained in force, cannot be considered as a
grounded one. The Seimas by its 12 January 1993 Law "On
Amending the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" substituted the aforesaid provision of Article 8 with
another provision: "in case that the tenants who occupy houses
subject to being returned at their own free will consent to
move into the other allotted dwelling place", therefore item 2
of Part 2, Article 8 of the initial wording of the Law became
null and void. After the Constitutional Court had acknowledged
in its 15 June 1994 ruling that the provision of the 12 January
1993 law condradicts Article 23 of the Constitution, the
aforesaid provision could not be applied (Part 1, Article 107
of the Constitution), and therefore a gap in the Law appeared.
The elimination of the gap is a prerogative of the institution
of power which has passed the legal norm.
The petitioner points out that the Constitutional Court in
its 15 June 1994 ruling noted that new requirements may not be
applied to the existing legal relations with the same contents,
as it would mean violation of person's equality before law. The
petitioner maintains that the Seimas violated the aforesaid
equality, as certain persons have restored residential houses,
whereas after adoption of the discussed amendment of the Law,
persons who have the ownership right to residential houses, and
who have not restored their property, got into a graver
situation, because different and harder requirements are
applied to them.
The aforementioned arguments of the petitioner are not
grounded. As it was mentioned, pursuant to item 2 of Part 2,
Article 8 of the initial wording of the Law and item 3 of the
Supreme Council 16 July 1991 Resolution regarding the process
of enforcement and application of the Law of the Republic of
Lithuania "On the Procedures and Conditions of the Restoration
of the Rights of Ownership to the Existing Real Property" one
of essential conditions in restoring the right of ownership by
returning residential houses (or portions thereof) in kind was
established, i.e. that tenants who reside in houses subject to
being returned shall be provided with a properly furnished
dwelling place. The very same condition is provided in item 4
of Part 2, Article 8 of the Law, and which the petitioner calls
in question. Therefore the argument that harder requirements
are applied to former owners of residential houses than before
is not a grounded one.
Taking into account the aforesaid motives a conclusion may
be drawn that item 4 of Part 2, Article 8 of the Law is in
compliance with the Constitution.
2. The Law regulates the restoration of the ownership
rights to the existing real property. Pursuant to the Law,
ownership rights shall be restored not for all former owners,
and not to all formely owned property. The Law contains special
conditions or, to be more precise, restrictions which are
applied to former owners who wish to restore their property in
kind. It is evident that certain conditions are established
which restrict the restoration of the ownership rights, as the
system of socio-economical relations which has been formed
during the last 50 years exerts influence upon this process. In
the case when it is impossible to return property in kind, the
former owner may choose another manner of compensation which is
provided in the Law. The Constitutional Court has noted several
times that the provision that, providing there is no
possibility to restore property in kind, it must be adequately
compensated for, does not contradict the principle of
protection of property ownership rights as well, because fair
compensation also ensures restoration of property ownership
rights (the 27 May 1994, 15 June 1994, 19 October 1994, 8 March
1995 rulings of the Constitutional Court).
The manner of compensation in the case that residential
houses shall not be returned in kind is prescribed in Part 4,
Article 8 of the Law. The restoration of the ownership rights
by compensating for existing real property in the case that it
is impossible to return it in kind is warranted as well,
therefore a conclusion may be drawn that Part 4, Article 8 of
the Law is in compliance with 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 recognise that item 4 of Part 2, Article 8 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", as wel as the norm of Part 4 of the aforesaid
Article "In all other cases, not specified in Part 2 of this
Article, the ownership right to residential houses (or portions
thereof), to apartments shall be restored by buying them out
from persons specified in Article 2 of this law on the basis of
the option of the aforesaid persons /.../" are in compliance
with 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.