Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the 20 January 1993
Resolution No.14 of the Government of the Republic
of Lithuania "On the portion of possessions
belonging to the State which are currently managed
by consumer cooperation" as well as the 10 March
1993 Decree No.186p of the Government of the
Republic of Lithuania "On property relations
between the State and consumer cooperation" with
Articles 1 and 2 of the Law on Privatisation of
Apartments
22 May 1996, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the justices of the Constitutional Court Egidijus
Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas
Rasimavičius, Teodora Staugaitienė, and Juozas Žilys,
the secretary of the hearing - Daiva Pitrėnaitė,
the party concerned - Vitoldas Kumpa, the Head of the
Legal Division of the Secretary Office of the Government, the
representative of the Government of the Republic of Lithuania,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the Law of
the Republic of Lithuania on Constitutional Court, in its
public hearing on 30 April 1996 conducted the investigation of
Case No.14/95 subsequent to the petition submitted to the Court
by Vilnius City District Court No.1 requesting to investigate
if the 20 January 1993 Resolution No.14 of the Government of
the Republic of Lithuania "On the portion of possessions
belonging to the State which are currently managed by consumer
cooperation" and the 10 March 1993 Decree No.186p of the
Government of the Republic of Lithuania "On property relations
between the State and consumer cooperation" are in conformity
with Articles 1 and 2 of the Law on Privatisation of
Apartments.
The Constitutional Court
has established:
I
On 10 May 1995, the petitioner - Vilnius City District
Court No.1 - was investigating a civil case pursuant to the
action of the plaintiff K. Džiovalaitė against the respondent
Vilnius Cooperation School of Further Education of the
Lithuanian Union of Consumer Cooperatives. The plaintiff
indicated the Board of the Lithuanian Union of Consumer
Cooperatives as the third party in her 21 April 1995
supplementary petition of the action. The said court in its
ruling by which it appealed to the Constitutional Court
formulated that the request of the plaintiff concerns the
obligation to allocate to her and sell her an emptied room
which is in a hostel (the address: 38a-12, Lvovo Street,
Vilnius) and which belongs to the Board of the Lithuanian Union
of Consumer Cooperatives.
The district court by its ruling suspended the
investigation of the case and appealed to the Constitutional
Court with the request to investigate if the 20 January 1993
Resolution No.14 of the Government of the Republic of Lithuania
"On the portion of possessions belonging to the State which are
currently managed by consumer cooperation" (Official Gazette
"Valstybės Žinios", No.5-96, 1993; hereinafter in the ruling
referred to as the disputed Resolution) and the 10 March 1993
Decree No.186p of the Government of the Republic of Lithuania
"On property relations between the State and consumer
cooperation" (received together with the request of Vilnius
City District Court No.1; hereinafter in the ruling referred to
as the disputed Decree) are in conformity with Articles 1 and 2
of the Law on Privatisation of Apartments, and if the Law on
Privatisation of Apartments shall be applied when
dwelling-houses and hostels belonging to the Lithuanian Union
of Consumer Cooperatives are privatised.
II
The petitioner in its ruling points out that the
respondents in the district court explained that the said
building is the property of the Lithuanian Union of Consumer
Cooperatives. It is established in item 5.1 of the disputed
Resolution that a cooperative, after it has settled its
accounts with the State, shall independently dispose of the
possessions which belong to it. It is held in the disputed
Decree that Lithuanian organisations and enterprises of
consumer cooperatives completely settled their accounts with
the State until 1 February 1993. It is indicated in the
Cooperative Law of the Republic of Lithuania that a cooperative
society is entitled to manage, utilise, and dispose of its
possessions.
The petitioner grounds its opinion on the fact that it is
established in Articles 1 and 2 of the Law on Privatisation of
Apartments which went into effect on 30 June 1991 that
dwelling-houses and buildings belonging to cooperative
organisations shall constitute the public housing fund. The
petitioner concedes that these lodgings are the object of the
Law on Privatisation of Apartments.
III
During the preparation of the case for the Constitutional
Court hearing, as well as during the judicial investigation,
the representative of the party concerned explained that the
Government by the disputed Resolution recognised that the
shares of the former union of cooperatives (cooperative
societies) "Lietūkis" and those of the former and existing
members of Lithuanian consumer cooperation, as well as the
corresponding value's portion of the newly created possessions,
shall be the property of Lithuanian consumer cooperation. That
was done while taking account of the conclusions of both the
International Alliance of Cooperation and scientists, and
implementing the 6 October 1992 Resolution of the Supreme
Council of the Republic of Lithuania "On commissioning the
Government of the Republic of Lithuania to decide certain
problems".
The Government established by the disputed Resolution that
the portion of possessions belonging to the State which are
currently managed by consumer cooperation is constituted of the
possessions freely granted by the State (except for those
transferred to the State), as well as of the corresponding
value's portion of the newly created possessions.
The representative of the party concerned indicated that
Lithuanian organisations and enterprises of consumer
cooperatives transferred the portion of possessions belonging
to the State until 1 February 1993, therefore the Government by
the disputed Decree recognised that they fulfilled the disputed
Resolution of the Government and completely settled their
accounts with the State.
It is established in Article 5 of the Code of Apartments
what dwelling-houses or lodgings constitute the state and
public housing fund. In the opinion of the party concerned,
this fund is to be held as belonging to the trade unions. Other
organisations did not possess any residential lodgings of the
public housing fund. It is impossible to draw a conclusion from
Article 5 of the Code of Apartments that public organisations
belong to cooperation or vice versa. The said law was passed in
a different period of time, therefore it is doubtful if it is
applicable at present.
The hostel, situated in 38a, Lvovo Street, Vilnius,
belongs to the Lithuanian Union of Consumer Cooperatives,
which, according to Article 21 of the Cooperative Law, shall
function as a cooperative society. These societies may not be
identified with public organisations. The Supreme Court of
Lithuania also had no doubts if a cooperative is an economic
entity. According to Article 7 of the Cooperative Law, a
cooperative society shall have the right to manage the property
belonging to it, utilise and dispose of it. Therefore the
Presidium of the Supreme Court judged this question fairly and
did not doubt if the disputed acts of the Government contradict
the Law on Privatisation of Apartments or other laws.
The representative of the party concerned alleged that a
question arose when the possessions were being separated
whether cooperation would survive at all if all possessions
were recognised as State possessions. When it was clear while
separating the possessions that dwelling-houses had been built
from the portion of State means, these houses were transferred
to local governments and later privatised.
In the opinion of the representative of the party
concerned, the Government, when deciding the possessions'
separation question, did not violate people's rights as all
conditions were created to people residing in hostels to buy
the dwelling space on easy terms. There are no significant
disputes concerning this and the Government has not received
any complaints. The Government has not violate its
jurisdiction. Life itself confirmed that the right decisions
have been passed.
The Constitutional Court
holds that:
The Government, while implementing the 14 December 1990
Resolution of the Supreme Council of the Republic of Lithuania
"On the property of consumer cooperatives of the Republic of
Lithuania", established in item 5.1 of the 20 January 1993
Resolution No. 14 "On the portion of possessions belonging to
the State which are currently managed by consumer cooperation"
that "upon settling its accounts with the State, consumer
cooperation shall independently dispose of its property". The
Government established in item 1 of the 10 March 1993 Decree
No. 186p "On property relations between the State and consumer
cooperation" that the organisations and enterprises of
Lithuanian consumer cooperation had transferred to the State
the portion of possessions that belong to the State until 1
February 1993 and that they completely settled their accounts
with the State. Following the said legal acts of the
Government, when separating the portion of the possessions
belonging to the State, hostels, together with other
possessions, were received by consumer cooperation as its own
property.
The petitioner doubts if these acts of the Government are
in conformity with the law. In its opinion, it is prescribed in
Articles 1 and 2 of the Law on Privatisation of Apartments that
the public housing fund shall consist of dwelling-houses and
buildings which belong to cooperative organisations, therefore
these lodgings are the objects of the Law on Privatisation of
Apartments.
1. Cooperative movement and activity are grounded on
private ownership. A cooperative enterprise (a cooperative) is
a subject of private ownership law.
While assessing the possibility, which has been raised by
the petitioner, to privatise hostels which were received by the
consumer cooperation, it is impossible not to take account of
specific Lithuanian historic conditions which influenced the
legal status of cooperative property and its accumulation. The
property of cooperatives was private until the 1940 Soviet
occupation. The Soviet of People's Commissars of the Lithuanian
SSR by its 25 October 1940 Resolution No. 262 "On organisation
of state and cooperative trade in the Lithuanian SSR"
established the Union of Consumer Cooperatives of the Republic
by transferring to it the property of the "Lietūkis". During
the period of Soviet occupation, state and
collective-cooperative property was proclaimed as the basis of
the state-economic system. Attempts were made to bring together
cooperative property with state property. This was established
in normative acts of that time and it was implemented by
various ways. Among such ways, there existed transfer of some
of state possessions free to consumer cooperation among them.
Thereby the cooperative property during the period of Soviet
occupation became of a double character, viz., the transferred
and nationalised possessions of the "Lietūkis" functioned
together with the state possessions transferred to it.
The double character of the cooperative property was
ascertained in the 14 December 1990 Resolution of the Supreme
Council of the Republic of Lithuania "On the property of
consumer cooperatives" whereby it was prohibited to sell,
divide or transfer in any manner the possessions of the
Lithuanian Union of Consumer Cooperatives and its
organisations, except for those meant for trade, until the
procedure of the utilisation of the state property held in the
said organisations was established. Thus legal preconditions
were created by this Resolution of the Supreme Council to
separate the portions of possessions belonging to the State and
to consumer cooperation.
Upon the reinstatement of the constitutional institute of
private ownership in the legal system of the Republic of
Lithuania, they began to create legal pre-requisites to restore
and further develop the economic system based on the right to
private ownership. To achieve this goal, while carrying out the
economic reform, the Law on Initial Privatisation of State
Property, the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property", the Law on Land Reform, the Law on the Privatisation
of Property of Agricultural Enterprises, and other laws and
legal acts were passed. A distinct Law on Privatisation of
Apartments is devoted for the privatisation of the state and
public housing fund. Privatisation of apartments has become one
of the main directions of the State social policy. It has been
sought that dwelling lodgings became private property, i.e.,
that their owner was the person residing in the said lodgings.
2. It was established in Part 2, Article 1 of the Law on
Initial Privatisation of State Property that "the procedure and
conditions of the privatisation of the apartments from the
state and public housing fund shall be established by other
laws of the Republic of Lithuania". The said procedure and
conditions are established in the Law on Privatisation of
Apartments that came into force on 30 June 1991 and Part 1,
Article 2 whereof stipulates: "...the procedure of purchase and
sale of the state and public housing fund shall be established
by this law...". It is established in Part 1 of Article 2 of
the said law that the entities of purchase and sale shall be
corresponding dwelling-houses and apartments of the state and
public housing fund.
When judging what residential lodgings shall be subject to
privatisation pursuant to the Law on Privatisation of
Apartments, it is necessary to elucidate the content of the
notion the state and public housing fund which is used in this
law from its very coming into force, as well as later, after
the law had been amended and appended.
During the period of adoption of the Law on Privatisation
of Apartments, according to Part 1 of Article 4 of the Code of
Apartments, all dwelling-houses, as well as other residential
lodgings in other buildings, belonged to the housing fund. Only
non-residential lodgings of dwelling-houses which were devoted
to the matters of trade, private life, and those of
non-industrial character, did not belong to the housing fund.
Hostels, according to their purpose, were residential lodgings
(Part 1 of Article 7 of the Code of Apartments).
It is prescribed in Part 1 of Article 5 of the Code of
Apartments that the housing fund shall comprise of: 1)
dwelling-houses as well as residential lodgings which are in
buildings belonging to the State (the State housing fund); 2)
dwelling-houses as well as residential lodgings in other
buildings belonging to collective farms and other cooperative
organisations, unions thereof, trade unions, and other public
organisations (the public housing fund); 3) dwelling-houses
belonging to dwelling-houses' construction cooperatives (the
fund of the dwelling-houses' construction cooperatives); 4)
dwelling-houses and apartments which are private property of
citizens (the private housing fund). It was established in Part
2 of the said article that the rules prescribed for the public
housing fund shall be applied to dwelling-houses belonging to
state-collective and other state-cooperative unions,
enterprises, as well as organisations.
Thus the legislator, passing the Law on Privatisation of
Apartments, consolidated in Part 1 of Article 1, and Part 1 of
Article 2 of the said law that the entire state and public
housing fund shall be subject to privatisation. Only Article 3
of the Law on Privatisation of Apartments formulated exceptions
to this general rule. When amending and appending this law, the
number of exceptions was decreased. Pursuant to the systematic
analysis of the law's content, it means that providing there is
not an exception provided for by the law, all remaining
residential lodgings of the aforementioned housing funds shall
be entities subject to privatisation.
3. Upon adoption of the Law on Privatisation of
Apartments, the right of the population of Lithuania was
consolidated to acquire as private property the rented
dwelling-houses, and apartments in apartment buildings and
hostels. It was established in item 2 of the 30 May 1991
Resolution of the Supreme Council "On the entry into force of
the Law on Privatisation of Apartments" that "the apartments in
hostels indicated in Part 1 of Article 2 shall be privatised in
case that:
1) individual apartments are reorganised into hostels;
2) residential lodgings used as hostels meet the
requirements for the individual apartment: there exists a
separate entry, as well as dwelling rooms, the kitchen, and
other facilities conforming to the conditions of that
locality".
Thus, during that time a part of the people of Lithuania
who lived in hostels was not entitled to privatise residential
lodgings which did not meet the requirements for the individual
apartment.
The 15 July 1993 amendments and appendages of the Law on
Privatisation of Apartments attempted, first of all, to retain
a unanimous provision in the sphere of residential lodgings'
privatisation, i.e., to transfer as many as possible of them at
the disposal of natural persons. In the norm of Part 1 of
Article 2 of this law, wherein it is established that rooms in
hostels shall also be the object of purchase and sale, the
scope of entities subject to privatisation from the state and
public housing fund was enlarged.
The Law on Privatisation of Apartments widened the circle
of persons entitled to privatise lodgings of the state and
public housing fund. It is established in item 2, Part 1 of the
aforesaid article that only such rooms shall not be subject to
privatisation "which are allotted pursuant to the procedure
established by the Government for the purpose of tenanting
pupils, students, post-graduate students of secondary,
vocational, further education schools as well as universities,
and also the rooms in the hostels of the Lithuanian Union of
the Blind and Weak-Sighted, and those of the Lithuanian Society
of the Deaf, and of the Lithuanian Society of the Disabled".
This norm prescribes that only such rooms in hostels shall not
be sold which are either allocated for the purpose of tenanting
learners, i.e., for such persons who live there transiently,
i.e., who live there not on the grounds of their labour
agreement, or those belonging to the hostels of the
aforementioned union and both societies. The persons who were
allocated rooms in hostels on the grounds of labour relations
save for the aforesaid unions and societies acquired the right
to buy residential lodgings pursuant to the Law on
Privatisation of Apartments. In this respect, the rights of the
employees of consumer cooperation residing in hostels to
privatise residential lodgings were equalised with those of the
employees of other enterprises, offices, and organisations.
The 8 June 1995 Law of the Republic of Lithuania "On
Determination of the Property of the Sanatorium-Resort
Institutions and Rest Centres Which Were Run by Former State
Trade Unions of the Lithuanian SSR" also confirms a general aim
of the Law on Privatisation of Apartments to transfer as many
as possible of residential lodgings at the disposal of natural
persons. It is prescribed by the former law that individual
hostels belonging to the public housing fund shall be
privatised pursuant to the procedure established by laws.
4. The Supreme Council by its 14 December 1990 Resolution
"On the Property of the Lithuanian Union of Consumer
Cooperatives" commissioned the Government to determine the
amount of the Sate possessions used by consumer cooperation as
well as that of cooperative (private) possessions. This must
have been performed until 30 January 1991. The Government did
not accomplish the commission in time fixed by the legislator.
Before State and cooperative property were separated, the Law
on Privatisation of Apartments was passed on 28 May 1991
wherein the privatisation of State and public housing fund was
regulated. Following this law, the apartments were privatised
which were at the disposal of consumer cooperation. When
separating State and cooperative property, and deciding to whom
hostels must belong, the Government had to take account of it,
i.e., it had to reckon with the aim of the Law on Privatisation
of Apartments, moreover, that in Article 3 entitled "Dwelling
Houses and Apartments Which Are Not Subject to Privatisation"
of the said law, there was not any exception provided for that
the rooms in hostels transferred to consumer cooperation shall
not be privatised.
When separating the property, rooms in hostels tenanted by
employees which, according to valid laws, belonged to the
public housing fund subject to privatisation pursuant to the
Law on Privatisation of Apartments were transferred to consumer
cooperation by legal acts of the executive power. Thus the
disputed Resolution and the Decree of the Government do not
correspond the aim and content of this Law, therefore the
arguments stating that prescriptions of the Law on
Privatisation of Apartments shall not be applied to the rooms
in hostels which were transferred to the consumer cooperation
by the Government are groundless.
Alongside it should be noted that the contested legal acts
have, in fact, restricted the rights of persons of one social
group to privatise residential lodgings possessed on the
grounds of labour and lease agreements. This may be assessed as
a disregard of the principle of all people's equality before
the law.
Taking account of these arguments and those set forth
above, a conclusion is to be drawn that the disputed Resolution
and disputed Decree contradict Part 1 of Article 1, and Part 1
of Article 2 of the Law on Privatisation of Apartments in their
volume whereby the transfer of rooms in hostels to consumer
cooperation is decided.
5. The petitioner also requests to judge if the Law on
Privatisation of Apartments is to be applied when privatising
dwelling-houses and hostels belonging to the Lithuanian Union
of Consumer Cooperation.
It is established in Part 1 of Article 102 of the
Constitution, as well as in Part 1 of Article 1 of the Law on
the Constitutional Court, that the Constitutional Court shall
decide whether the laws and other legal acts adopted by the
Seimas are in conformity with the Constitution, and if legal
acts adopted by the President and the Government do not violate
the Constitution or laws. Thus the Constitutional Court judges
the questions of constitutionality of corresponding legal acts,
meanwhile, the application of a law or a legal norm is a
prerogative of the court which is investigating the case,
therefore the aforesaid request of the petitioner is not to be
investigated in the Constitutional Court.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law
of the Republic of Lithuania on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
To recognise that the 20 January 1993 Resolution No.14 of
the Government of the Republic of Lithuania "On the portion of
possessions belonging to the State which are currently managed
by consumer cooperation", and the 10 March 1993 Decree No.186p
of the Government of the Republic of Lithuania "On property
relations between the State and consumer cooperation"
contradict Part 1 of Article 1, and Part 1 of Article 2 of the
Law on Privatisation of Apartments in their volume whereby the
transfer of rooms in hostels to consumer cooperation is
decided.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.