Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Article 5 of the Law of the
Republic of Lithuania on the Privatisation of
Apartments with the Constitution of the Republic
of Lithuania
20 November 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, Teodora
Staugaitienė, and Juozas Žilys,
the secretary of the hearing - Daiva Pitrėnaitė,
the party concerned - Alfonsas Vileita, the representative
of the Seimas, the adviser of the Seimas Committee of State and
Law,
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
Constitutional Court of the Republic of Lithuania, in its
public hearing on 13 November 1995 conducted the investigation
of Case No. 2/96 subsequent to the petition submitted to the
Court by the petitioner - the Šiauliai City District Court -
requesting to investigate if Article 5 of the Law of the
Republic of Lithuania on the Privatisation of Apartments is in
compliance with the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
On 22 January 1996, the petitioner - the Šiauliai City
District Court - was investigating a civil case subsequent to
the complaint of the plaintiffs J. Gabrijolaitienė, E.
Žindulienė and S. Žindulis against the respondents K.
Kaminskas, E. Kaminskienė, and Šiauliai Town Board regarding
the protection of violated rights and recognition of the
transactions null and void. The financial stock-broker
enterprise "Bufina" of the non-profit organisation "Šiaulių
vaivorykštė", the Privatisation Commission of the Šiauliai
City, and the Šiauliai Branch of the Lithuanian Savings Bank
participate in the case as the third party.
By its interlocutory ruling the said court suspended the
investigation of this civil case and appealed to the
Constitutional Court with the petition requesting to
investigate if Article 5 of the Law of the Republic of
Lithuania on the Privatisation of Apartments (Official Gazette
"Valstybės žinios", No. 17-449, No. 22-576, 1991; No. 3-36, No.
30-920, 1992; No. 12-296, No. 32-722, No. 70-1308, 1993; No.
14-231, No. 40-717, No. 85-1606, 1994; No. 59-1472, 1995; No.
30-733, No. 68-1643, 1996; hereinafter in the ruling referred
to as the Law) is in compliance with Article 18 of the
Constitution.
The request of the petitioner to investigate whether this
legal norm is in compliance with the Constitution is based on
its opinion that conforming to the said article of the Law the
apartment purchase agreement must be made in the name of one
person as, providing there is no agreement to purchase the
apartment, then the agreement may not be made altogether.
Thereby other persons are deprived of the right to become the
owners of the apartment which is under privatisation. Under
such circumstances, there arises a doubt whether Article 5 of
the Law is in compliance with the Constitution.
II
While replying to the Constitutional Court paper for the
party concerned, Pranciškus Vitkevičius, Chairman of the Seimas
Committee of State and Law, when the case was being prepared
for the court hearing, explained in writing: Article 18 of the
Constitution establishes that the rights and freedoms of
individuals shall be inborn, however, the Constitution does not
provide with the notion of inborn right. Whatever notion of
inborn right is considered, it is impossible to objectively
establish a contradiction between Article 18 of the
Constitution and Article 5 of the Law on the Privatisation of
Apartments.
In the opinion of the Chairman of the Committee of State
and Law, if we recognised that the right to property is inborn,
then the state's right to property would be inborn, too. The
state has the right to manage, use, and dispose of its property
of its own will. Thus, the Law on the Privatisation of
Apartments is the act concerning disposal of state property.
This act, and, to be more precise, its Article 5 does not
restrict the freedom of the tenants of the apartments as well
as that of their family members. They may purchase the
apartment, and they may refuse to do that. They are granted the
right to agree of their own free will in whose name the flat
will be purchased. The apartment may be purchased by one person
who lives therein, or several persons, or all the persons who
live therein and have the right to dwelling space. Providing
there is no agreement, it is not permitted to purchase the
apartment because all the tenant family members have equal
rights to dwelling place. Therefore providing an argument
arises among the tenant family members in whose name the
apartment must be bought out, the court may not decide such an
argument. Any decision of the court in favour of one or several
members of the family of the tenant would violate the right to
dwelling place, i.e., the inborn right, of the other members of
the family of the tenant. Coercive buying out of apartments is
not permitted.
During the process of judicial investigation, A. Vileita,
the representative of the party concerned, additionally
explained that the state, as the owner, shall decide the issue
of disposal of its property. It was entitled to legally
regulate the privatisation of the state and public housing
fund. The Law on the Privatisation of Apartments had to
co-ordinate the interests of all persons who live in state
apartments and have the right to dwelling space because the
rights to dwelling space of the tenant and those of his family
members are equal. The law has justly phrased that all these
persons have equal rights while privatising apartments and
making agreements. Providing the tenant family members did not
agree with each other, the apartment purchase agreement would
not be made altogether. In such a case, they would be tenants
as before. According to the Law, the tenant, his family members
shall also agree on who will become the owner, the joint
proprietor of the purchased house or apartment. The apartment
may belong to the person under age, too, as the owner may be a
person irrespective of his legal capacity. When privatising
apartments, the rights of persons under age shall be
implemented by their parents or guardians. The Republic of
Lithuania Code of Marriage and Family (hereinafter in the
ruling referred to as the CMF) provides that certain
transactions require the consent of the body of guardianship
and custody. The contested law has not resolved this issue.
The apartment may be acquired either in the name of all
family members, then they will all be co-owners, or in the name
of one of them. The Law provides for all this. However, the
problem is that, on the basis of tradition, the CMF regulates
the property relations of spouses differently. Article 21 of
the CMF stipulates that all the property which has been
acquired during the marriage shall be the common property of
both spouses irrespective of the fact in whose name it is
registered. This is to be said as regards the dwelling-houses
and apartments which are under privatisation. When purchasing
the apartment which was undergoing privatisation, the spouses
sometimes registered it in the name of one of them but later a
dispute would arise that the interests of the other spouse or
those of the children were violated. This was not taken account
of when passing the Law.
In the opinion of the party concerned, the deficiency of
the Law may be linked with Article 21 of the CMF and the
prevailing tradition because if conformed to the Law, it would
appear that the person in whose name the agreement is made is
the owner. However, this does not contradict Article 18 of the
Constitution.
The Constitutional Court
holds that:
The Law on the Privatisation of Apartments establishes the
procedure of purchase and sale of the state and public housing
fund, defines what dwelling place of the state and public
housing fund may be sold in pursuance of this law and who is
entitled to purchase them. Part 1 of Article 5 of this Law
entitled "The Conditions of Making of the Purchase and Sale
Agreement" prescribes: "The tenant of the dwelling-house, his
family members as well as those who have temporarily moved
shall agree on the purchase of the dwelling-house (apartment),
and on the matter concerning in whose name the purchase and
sale agreement will be made, and on who will become the owner
(co-owners) of the purchased house or apartment. Such an
agreement must be notarised. Providing there is no agreement
among the tenant family members to purchase the dwelling-house
(apartment), the agreement of purchase and sale shall not be
made."
The request of the petitioner is based on the fact that
the norm of the Law which provides for the conditions of the
agreement of purchase and sale in the case that there are more
than one of the persons who have the right to purchase a
particular dwelling place, partially deprives the said persons
of the right to become the owners of the apartment which is
under privatisation. Therefore the petitioner has some doubts
whether Article 5 of the Law is in compliance with Article 18
of the Constitution which consolidates: "The rights and
freedoms of individuals shall be inborn."
1. When resolving the issue raised by the petitioner, it
should be noted that the doctrine of law has not formulated any
uniform concept of inborn rights and freedoms of individuals.
Most recent humanistic theories usually ground themselves on
the premise that the human being from the very birth has
fundamental and permanent rights and freedoms which are not
separable from his/her person. Human nature is the initial
source of the inborn human rights and freedoms.
In international and national law, inborn human rights and
freedoms are consolidated, as well as the standards of their
protection are established. For instance, the preamble of the
Universal Declaration of Human Rights, the major international
document on human rights adopted on 10 December 1948, reads:
"Whereas recognition of the inherent dignity and of the equal
and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world
[...], the General Assembly proclaims this Universal
Declaration of Human Rights [...]". The 4 November 1950
European Convention for the Protection of Human Rights and
Fundamental Freedoms consolidates that the High Contracting
Parties shall secure to everyone within their jurisdiction the
rights and freedoms defined while taking account of the
Universal Declaration of Human Rights.
Article 18 of the Constitution which is the first in the
Chapter "The Individual and the State" of the Constitution
consolidates the fundamental norm on the grounds of which
inborn human rights and freedoms are guaranteed and protected.
Other articles of the Constitution proclaim the inviolability
of respective inborn human rights and freedoms and provide for
the ways of their protection.
Human rights and freedoms as consolidated in the norms of
objective law (the Constitution, other laws) are the basis of
arising and implementation of subjective individual rights. It
goes without saying, neither Article 18 of the Constitution
which is of universal character, nor other articles of the
Constitution guaranteeing inborn human rights ad freedoms
mention the right of the individual to privatise items of
public property as it is not an inborn human right. The right
of the individual to privatise state property arises only on
the basis of respective legal act (in the case under
investigation it is the Law on the Privatisation of
Apartments). However, regardless of the positivist nature of
the right of the individual to privatise dwelling place, the
assessment whether the norm of Article 5 of the Law regulating
the implementation of this right is in compliance with the
Constitution may be linked with the constitutional principle of
protection of human rights and freedoms the content of which is
revealed in a great many of norms of the Constitution. Taking
account of the arguments of the petitioner which have been
mentioned in the ruling, the compliance of the said norm of the
Law with the Constitution as an integral act is to be assessed
while considering these aspects: whether the principle of the
equality of rights of all persons is not violated; whether the
freedom of an individual (the freedom of making transactions in
particular) is not restricted.
2. The inborn human right to be treated equally with
others protects the sphere of human freedom as virtually a
human being is free to the extent that he is free with the
others. This fundamental human right is guaranteed by Article
29 of the Constitution, Part 1 whereof prescribes: "All people
shall be equal before the law, the court, and other Sate
institutions and officers."
Article 4 of the Law on the Privatisation of Apartments
consolidates the principal provision that the tenant and his
family members shall have equal rights as regards purchasing of
their rented dwelling place subject to privatisation whereas
disputed Article 5 establishes the conditions to implement this
right. When assessing whether this norm of the Law is in
compliance with the constitutional principle of the equality of
all people before the law, it should be noted that this
principle is violated when a certain group of people to which
the legal norm is ascribed, if compared to other addressees of
the same legal norm, is treated differently, even though there
are not any differences in their character and volume between
these groups that such an uneven treatment were objectively
justified.
The analysis of the content of Part 1 of Article 5 of the
Law does not provide with the grounds to assert that this norm
of the Law which provides for the conditions of making the
purchase and sale agreement treats exceptionally and unevenly
any person or group of persons who have the right to purchase
their rented dwelling place subject to privatisation in
pursuance of the Law. The provision "The tenant of the
dwelling-house, his family members as well as those who have
temporarily moved shall agree on the purchase of the
dwelling-house (apartment) [...]" of Article 5 of the Law just
exactly consolidates equal treatment of all persons who have
the right to the purchase in pursuance of the Law because when
the issue of privatisation of the rented dwelling place is
decided all the tenants are considered.
The rights of the tenants and his family members to
dwelling place shall be equal. This equality is guaranteed by
law. Therefore disputed Article 5 of the Law also provides that
the legal status of the tenant of particular dwelling place or
his family members may be changed only on the grounds of common
agreement. According to the Law, the tenant, as well as his
family members, has the right to purchase the dwelling place
subject to privatisation, however, no one of them is compelled
to do so by the Law. It is evident that privatisation against
the will of any of the aforesaid person would mean
arbitrariness in regard to him and this would contradict the
equality of rights of this person. To prevent such a possible
arbitrariness, the provision of Article 5 of the Law was
designed that providing there is no agreement to purchase the
dwelling-house, then the agreement of purchase and sale shall
not be made.
Thus, according to the contested norm of the Law, no one
from the family members of the tenant (the tenant included) has
the priority in respect with the others: the privatisation of
the dwelling place happens on the grounds of the agreement of
all family members of the tenant.
3. According to the Law, the privatisation of apartments
is accomplished by making purchase and sale agreements.
Therefore, when assessing the disputed norm of the law which
requires for the agreement of the tenants on certain issues of
the purchase and sale agreement, the constitutional principle
of the equality of people is tightly connected with the
principle of freedom to make agreements. The freedom to make
agreements is a particularised manifestation of such values
which are consolidated in the Constitution as the freedom of
individual (Article 21), inviolability of property (Article
23), freedom of individual economic activity (Article 46). Thus
the freedom to make agreements may be assessed as the guarantee
on the constitutional level.
The freedom to make an agreement is, first of all, free
expression of will of its parties in attempt to make the
agreement. It is the freedom, together with the covenantee, to
independently decide the issues of the agreement's content by
not violating respective imperative requirements of the law,
and by not restricting the rights and freedoms of other
persons.
The provision "The tenant of the dwelling-house, his
family members as well as those who have temporarily moved
shall agree on the purchase of the dwelling-house (apartment)
[...]" of Article 5 of the Law secures free expression of the
will of aforesaid persons in attempt to make the purchase and
sale agreement.
Article 5 also establishes that the tenant of the
dwelling-house (apartment), his family members shall "[...]
agree [...] on the matter concerning in whose name the purchase
and sale agreement will be made, and on who will become the
owner (co-owners) of the purchased house or apartment". It
means that upon fulfilling the first condition - after the said
persons have agreed on the purchase of the dwelling place in
principle - it shall be agreed on the concrete legal status of
the legal subjects in the purchaser's party both while it is
made and, it goes without saying, upon its entering into force.
Furthermore, the rights of the tenant and his family members
who have not acquired ownership rights to the privatised
dwelling place are defined by Article 12 of the Law.
The contested provision of the law establishes as to what
issues must be agreed upon (the manner of such an agreement),
however, it contains no indication as to the content of such an
agreement, i.e., it contains no requirement establishing in the
name of what person the purchase and sale agreement must be
made and who must become the owner of the purchased dwelling
place. On the grounds of the logic and verbal interpretation of
the text "[...] agree [...] on the matter concerning in whose
name the purchase and sale agreement will be made, and on who
will become the owner (co-owners) of the purchased house or
apartment" of the Law, it is impossible to hold that the
statement, as if here it is required for the agreement upon the
purchase of the dwelling place in the name of only one person
and that only one person would become the owner of the
privatised dwelling place, is a correct one. On the contrary,
the Law consolidates the opportunity to agree permits the
tenant and his family members to freely negotiate on the legal
status of each of them. On the grounds of such a free agreement
the purchase and sale agreement may be made in the name of not
necessarily one person; one person may become the owner while
one or all persons having equal rights to their rented dwelling
place subject to privatisation may become the co-owners, and,
the important thing is that this was conditioned by free
agreement of all persons. The disputes regarding violations of
this fundamental rule of the making of agreements shall be
decided in court.
Taking account of the arguments set forth, a conclusion is
to be drawn that Article 5 does not deny the right of the
tenant or that of any other of his family member to privatise
their rented dwelling place and become the owner or joint
proprietor of this dwelling place in pursuance of this Law. The
law establishes the implementation conditions of this right so
as the rights and freedoms of any of the aforesaid persons were
not restricted while making the purchase and sale agreement,
therefore the disputed norm of the Law is in compliance with
Article 18 of the Constitution.
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 Article 5 of the Law of the Republic of
Lithuania on the Privatisation of Apartments is 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.