Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Parts 1, 4, 9 and 11 of
Article 4, Part 1 of Article 8, Item 2 of Article
15 and Parts 1, 2, 3 and 4 of Article 20 of the
Republic of Lithuania Law on the Restoration of
Citizens' Rights of Ownership to the Existing Real
Property with the Constitution of the Republic of
Lithuania
Vilnius, 27 October 1998
The Constitutional Court of the Republic of Lithuania,
composed of the Judges of the Constitutional Court Egidijus
Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas
Rasimavičius, Teodora Staugaitienė, and Juozas Žilys,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of the petitioner-a group of members
of the Seimas of the Republic of Lithuania-Roma Dovydėnienė,
and Vytenis Andriukaitis, both are Seimas members,
the representatives of the party concerned-the Seimas of
the Republic of Lithuania-Andrius Kubilius, First Deputy
Chairman of the Seimas, and Albinas Raudonius, Director of the
Department for the Organisation of Land Exploitation and Law
under the Ministry of Agriculture 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
Republic of Lithuania Law on the Constitutional Court, on 12
October 1998 in its public hearing conducted the investigation
of Case No. 15/97 subsequent to the petition submitted to the
Court by the petitioner-a group of Seimas members-requesting to
investigate if Part 4 of Article 4 the Republic of Lithuania
Law on the Restoration of Citizens' Rights of Ownership to the
Existing Real Property was in compliance with Article 29 of the
Constitution, Parts 9 and 11 of Article 4 of the said law with
Parts 2 and 3 of Article 46 of the Constitution, Part 1 of
Article 8 and Parts 1, 2, 3 and 4 of Article 20 of the said law
with Article 29, Part 1 of Article 24, Article 23, Parts 2 and
5 of Article 46 of the Constitution, and whether Part 1 of
Article 4 and Item 2 of Article 15 of the said law were in
compliance with Parts 2 and 3 of Article 46 and Part 4 of
Article 59 of the Constitution.
The Constitutional Court
has established:
I
On 1 July 1997 the Seimas passed the Republic of Lithuania
Law on the Restoration of Citizens' Rights of Ownership to the
Existing Real Property (Official Gazette Valstybės žinios, No.
65-1558, 1997; hereinafter in the ruling referred to as the
Law).
The petitioner-a group of Seimas members-requests to
investigate if Part 4 of Article 4 the Law is in compliance
with Article 29 of the Constitution, Parts 9 and 11 of Article
4 of the said law with Parts 2 and 3 of Article 46 of the
Constitution, Part 1 of Article 8 and Parts 1, 2, 3 and 4 of
Article 20 of the said law with Article 29, Part 1 of Article
24, Article 23, Parts 2 and 5 of Article 46 of the
Constitution, and whether Part 1 of Article 4 and Item 2 of
Article 15 of the said law are in compliance with Parts 2 and 3
of Article 46 and Part 4 of Article 59 of the Constitution.
II
The petitioner grounds his request on the following
arguments.
By the Law of 1 July 1997, the Seimas changed the
procedure and conditions of the restoration of the rights of
ownership which had been in force until then: the size of land
plot to which the rights of ownership are restored was
increased to 150 ha, the opportunity to recover land in those
territories where industrial gardens, berry plantations and
arboreta had been laid out was legalised, certain priorities
concerning certain groups of persons were established, as well
as the opportunity to recover dwelling-houses which are
occupied by the tenants was legalised. By this law the
legislator rectified some deficiencies that had been in the
former law on restitution, however reasonable doubts arise
regarding the compliance of certain articles of the Law with
the Constitution.
The petitioner notes that, analysing the Law and the
compliance of its articles with the Constitution, he takes into
consideration the arguments of the Constitutional Court ruling
of 22 December 1995: "It was impossible to impartially
reconstruct the complete former system of property relations,
as it was necessary to take into consideration socio-economic
and other social relations, which had changed. [...] 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."
The petitioner calls in question the compliance of Part 4
of Article 4 of the Law with Article 29 of the Constitution
wherein the equality of persons before the law is entrenched.
In the opinion of the petitioner, the wording of the Law "the
land shall be returned in kind without delay" may be treated in
its absolute meaning, which means that land plots will
instantly be measured in the locality, according to the old
boundaries, without necessary planning nor boundary
co-ordination, without the requirement that a land reform
project of organisation of land exploitation be prepared before
that. By the disputed norm evident advantages have been granted
to the person who is subject to the restoration of the rights
of ownership. Due to such legal regulation there might appear
negative effects to the work of organisation of land
exploitation. Society is not indifferent as regards the use of
land, for preservation of the fertility of land is common need.
Therefore the right of the State to regulate the conditions of
restoration of the rights of ownership to land is an inevitable
necessity in attempt to harmonise the interests of former
owners and those of society, thus, in restoring the right of
ownership, one has to follow strict requirements.
It is stipulated in the norms of Parts 4 and 11 of Article
4 of the Law that the land which is necessary for maintenance
of economic-commercial buildings and facilities that belong to
natural and legal persons by right of ownership, as well as the
land on which there are specialised gardens, berry plantations
and arboreta belonging to agricultural enterprises, shall be
returned in kind to former owners unconditionally. In the
opinion of the petitioner, the legislator, establishing the
conditions for returning agricultural land, may not violate the
rights of former owners, however, neither may he ignore the
need of society to utilise land as to its purpose. Land is a
universal value and it has a social function, which is to serve
the welfare of the people.
Parts 2 and 3 of Article 46 of the Constitution provide
that the State shall support economic efforts and initiative
which are useful to the community and that it shall regulate
economic activity so that it serves the general welfare of the
people. In the 18 June 1991 Law "On the Procedure and
Conditions of the Restoration of Citizens' Rights of Ownership
to the Existing Real Property" it was provided for that
agricultural enterprises' specialised gardens, berry
plantations, arboreta, as well as vegetable patches which have
installed irrigation systems, were to be bought out. The
farming lands of such enterprises have been formed when one was
orienting himself to prospective economic activities, by making
use of long-term investments. Along with the irrigation and
draining systems, many other specialised commercial objects
have been installed in such enterprises: storehouses,
refrigerators, product processing utilities, etc. Such gardens,
berry plantations, arboreta, vegetable patches together with
all utilities constitute a common production-technological
complex. In case land is unconditionally returned, the
production-technological integrity of the created complexes
will be violated and even the industrial activities of these
complexes will be brought to ruin, not to mention that their
useful technological opportunities would remain unused.
Furthermore, it is possible that the developed infrastructure
and improved land may be ravaged. The disputed legal regulation
changes in essence the economic conditions of the subjects who
are indulged in farming activities, which may incur losses to
them and change their legal situation. Therefore, the
petitioner is of the opinion that Parts 9 and 11 of Article 4
of the Law contradict Parts 2 and 3 of Article 46 of the
Constitution.
The petitioner also doubts as for the compliance of Part 1
of Article 8, Parts 1, 2, 3 and 4 of Article 20 of the Law with
Article 29, Part 1 of Article 24, Article 23, Parts 2 and 5 of
Article 46 of the Constitution.
The petitioner draws one's attention to the fact that by
the first, i.e. the 18 June 1991 wording of the Law "On the
Procedure and Conditions of the Restoration of Citizens' Rights
of Ownership to the Existing Real Property," dwelling-houses
might be returned in the following cases: (1) they were
reconstructed into premises unfit for human occupancy or if
they were vacant; (2) tenants, occupying houses subject to
being returned, and which were occupied by more than one
family, were familiarised with the free option to move into
equivalent premises under the conditions proposed by the local
government.
The petitioner notes that the Constitutional Court in its
ruling of 15 June 1994, assessing the 12 January 1993
amendments of the said norm of the Law, held that persons to
whom ownership rights to dwelling-houses were 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 content, as it would
mean violation of persons' equality before the law. The
petitioner also draws one's attention to the arguments set
forth in the aforesaid Constitutional Court ruling which state
that natural persons, while acquiring dwelling-houses (or
portions thereof) by contract, conformed to the rules of
conclusion of contracts established by normative acts that were
in force at that time, performed obligations of the party
ensuing from such contracts, therefore, while restoring the
ownership rights to dwelling-houses transferred to natural
persons, the rights of natural persons, who have acquired such
property, should be protected along with the rights of former
owners. Taking account of these arguments, as well as the
inviolability of property as guaranteed by the Constitution, as
well as the fact that property may only be seized for the needs
of society and must be adequately compensated for, the
petitioner doubts whether the regulation established by Part 1
of Article 8 of the Law is in conformity with Article 23 of the
Constitution.
In his petition the petitioner also bases himself on the
provision of the 22 December 1995 Constitutional Court ruling
which states that 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. Along with these arguments, the
petitioner presents the statement of the 12 November 1996
Constitutional Court ruling which states that the legal norm by
which the state loads itself with respective responsibilities,
in this case-to provide the tenants who reside in the houses
which are subject to being returned to the former owners with
corresponding dwelling place, must be grounded on material and
financial resources. Otherwise this legal norm becomes
ineffective, its is impossible to make use of it.
On the grounds of the arguments set forth, the petitioner
contends that, unlike as it has been until now, at present
under Part 1 of Article 8 of the Law dwelling-houses are
returned in kind to the former owners regardless of the fact
that tenants reside there. Due to this the legal situation of
tenants is changed in essence, the principle of persons' rights
equality is violated and a privilege is given to the former
owners because of their social situation. The tenants do not
feel safe in the dwelling place wherein they reside, especially
when the atmosphere of confrontation prevails and the conflict
of interests occurs. Therefore, in the opinion of the
petitioner, Part 1 of Article 8 contradicts Article 29 of the
Constitution, nor is it compatible with Part 1 of Article 24 of
the Constitution which provides that a person's dwelling place
shall be inviolable.
Besides, the petitioner notes, the tenant is a consumer.
Under Article 46 of the Constitution, the State shall defend
the interests of the consumers, meanwhile by the disputed legal
regulation, the constitutional rights of tenants are violated
in this respect, too.
The petitioner notes that the disputed norm of Article 8
of the Law by which dwelling-houses are returned in kind to
former owners, as well as the disputed norms of Article 20 of
the Law, violates the rights of ownership of persons who have
acquired a dwelling place in the houses which are subject to
being returned. On the other hand, the rights of persons to
whom the rights of ownership to dwelling-houses are restored
are not protected sufficiently as they are obligated to
conclude a dwelling place rent contract with the local
government.
Basing himself on Article 5 and Part 4 of Article 59 of
the Constitution, the petitioner emphasises that Seimas
members, being in office and adopting laws, conform to the
Constitution and the interests of the State. When adopting
decisions, the legislator has to understand the financial
capacity, and material resources of the State, as well as take
into consideration as to how his decisions will affect all
taxpayers. In this respect, according to the petitioner, the
provisions of Part 1 of Article 4 of the Law may be called to
question. Following the pre-war tradition, the legislator
increased the size of land plots to which the rights of
ownership are restored from the former norm of 80 ha to 150 ha.
Due to such a decision, having in mind that the reform has
already started, undoubtedly additional financial resources are
required for redesigning of plans of organisation of land
exploitation, and for harmonisation of different interests of
people (in the 3 ha land plots, in the plots on which there are
enterprises and in other zones).
Even more doubts arise to the petitioner regarding the
norm of Item 2 of Article 15 of the Law whereby dwelling-houses
(parts thereof) shall be bought out in the case that they have
virtually been rearranged so that more than 60 per cent of the
main constructions have been changed which makes it impossible
to separate the additional gross floor area from the original
one and if the gross floor area exceeds by 30 per cent the
original one. Thus, in the case that the remainder of the
constructions is a little more than 40 per cent, the whole
house is to be returned to the owner or his heir. According to
engineering calculations, very often 40 per cent of
construction elements of a building constitute merely 15 per
cent of the total value of the building. Thus cases are
possible when on the grounds of the 15 per cent of the existing
property the owner is returned the whole building. Conforming
to such a principle, one can distribute a considerable portion
of public property to private persons. Meanwhile, Parts 2 and 3
of Article 46 of the Constitution provides that economic
efforts and initiative which are useful to the community are
supported and economic activity is regulated so that it serves
the general welfare of the people. Article 5 of the
Constitution stipulates that institutions of power shall serve
the people while Part 4 of Article 59 of the Constitution
clearly indicates that Seimas members shall act in accordance
with the interests of the State. Contrary to these provisions
of the Constitution, the disputed norms of the Law more reflect
satisfaction of group interests, furthermore, it is done at the
expense of the taxpayer. One disregards the fact that in the
case that it is impossible to return property in kind, the
former owner is entitled to choose a way of compensation which
is provided for by the Law as fair compensation also ensures
the restoration of the rights of ownership. Therefore, the
petitioner is of the opinion that the norms of Part 1 of
Article 4 and those of Item 2 of Article 15 of the Law
contradict Article 5, Parts 2 and 3 of Article 46 and Part 4 of
Article 59 of the Constitution.
III
In the course of preparation of the case for the
Constitutional Court hearing, the representative of the party
concerned A. Raudonius presented the following
counter-arguments in writing.
The provision "the land shall be returned in kind without
delay" of Part 4 of Article 4 of the Law should not be treated
without reservations. Such a wording was adopted in order to
speed up returning of property. Actually it means that in the
case that there are clear boundaries of a land plot, and no
disputes arise as to the claimants to the plot or its
boundaries, the right of ownership is restored and land is
returned by not raising additional conditions and without
waiting until privatisation issues of other land plots have
been decided or projects of organisation of land exploitation
in cadastral areas have been prepared. The rights of ownership
to land in kind are restored by designating the boundaries of
the land plot which is to be returned in the land reform
project of organisation of land exploitation and marking them
on the locality. Such an explanation is consolidated in
substatutory acts, namely in the Government Resolution No. 1057
of 29 September 1997 "On the Procedure and Conditions of
Implementation of the Republic of Lithuania Law on the
Restoration of Citizens' Rights of Ownership to the Existing
Real Property". Besides, the legislator established the
disputed provision on the grounds of economic motivation as
well. The Constitution protects the rights of ownership,
therefore returning of property which earlier belonged by right
of ownership to the former owner in kind cannot be treated as
granting a privilege on the grounds of social position. The
representative of the party concerned is of the opinion that
Part 4 of Article 4 of the Law is in compliance with the
Constitution.
The representative of the party concerned did not agree
with the arguments of the petitioner concerning the
non-compliance of Parts 9 and 11 of Article 4 of the Law with
the Constitution. He noted that, according to the conclusions
of scientists and technical conclusions of garden exploitation,
it was calculated that gardens yield good harvests, i.e. they
are profitable, for about 20 years. According to present data,
a considerably greater part of existing industrial gardens,
berry plantations and arboreta have been yielding harvests for
15 years. Thus, for many of them the period of yielding good
harvests will end after 3 or 5 years. It would be unfair not to
return garden land to the owners and leave it to the
enterprises or other persons who, after a few years, will have
to clear that land plot of old trees and berry shrubs and to
plant new ones. Returning the said land, one permits to use the
trees and berry shrubs of industrial gardens, berry plantations
and arboreta for 3 years without any preliminary conditions of
the owners. During this period the land owners may not hinder
to utilise the said gardens, berry plantations and arboreta. In
the case that the owner has no financial possibilities to pay
for the trees and berry shrubs, he may not prohibit to utilise
the gardens. Besides, the owners of land and those of gardens,
berry plantations and arboreta are not deprived of an
opportunity to conclude an agreement on land rent etc.
Neither does the representative of the petitioner hold
that Part 11 of Article 4 of the Law whereby land which is in
rural areas is returned in kind and which was rented to natural
and legal persons for maintenance of economic-commercial
buildings and utilities (those which are under construction and
those that are already built) and which belong to the latter by
right of ownership contradicts the Constitution. He noted in
his explanation that the legal status of such buildings, as a
rule, is not entirely defined. After agricultural enterprises
decided to close themselves, the said buildings were given as
shares to their former members who often do not use them
therefore land around them is utilised ineffectively. The
legislator adopted a provision to return such land to the
owners who will utilise it in a proper way (when buildings are
pulled down) or will buy out the buildings from former sharers
and utilise them for agricultural purposes. There is a grounded
probability that land owners will purchase or acquire as
property in other ways economic-commercial buildings. Part 5 of
Article 21 of the Law, too, provides for a preference for the
former owners to acquire the buildings and utilities belonging
to the State, local governments or agricultural enterprises
which are on the land plots that have been returned to them.
Therefore it would be unfair that in case the land around and
under the said buildings is not returned, later on the owner
himself would have to purchase this, i.e. his own, land. A
reverse process is possible too, i.e. the owners of the
buildings who utilise them according to their purpose will
purchase this land under the procedure established by laws.
Besides, the Law provides for establishment of easements for
land owners. Thus, there are not any obstacles or hindrances
for building owners to use the land which is necessary for
maintenance of buildings.
Adopting the disputed provisions the legislator attempted
to preserve traditionally integral farms. In the opinion of the
representative of the party concerned, the statement of the
petitioner, that by the provisions established by Parts 9 and
11 of Article 4 of the Law that the industrial activities of
these complexes will be violated, and that their useful
technological opportunities would remain unused, is groundless.
These provisions of the Law do not create obstacles to efforts
and initiative which are useful to society, therefore they are
in compliance with Parts 2 and 3 of Article 46 of the
Constitution.
The representative of the party concerned disagreed with
the arguments of the petitioner concerning Part 1 of Article 8
and the disputed parts of Article 20 of the Law. He noted that
the Law ensures not only the rights of the owners of
dwelling-houses but also those of tenants. The tenants may not
be evicted until the State does not have to propose anything
for the rented apartment. The following guarantees have been
provided for the tenants: they may be provided with another
dwelling place gratis; they may be compensated the expenses of
acquisition of another dwelling place; or, at the request of
the tenant, he may be allocated a land plot for construction a
dwelling-house. The legislator, seeking to protect the rights
of tenants, established that the intermediary between the owner
and the tenant is the local government. Under exceptional
circumstances (of returning property), one attempts to evade
the direct contact between the tenant and the owner. Thereby
one blocks the way to arbitrariness, and the tenant is
protected from increase of rent.
The legislator, deciding the question whether the owners
should be compensated for dwelling-houses by buying them out by
the State, or whether the tenant should be granted another
dwelling place or other guarantees, was following moral aspects
as well, as material expenses in both cases were the same.
Priority was given to the owners due to the fact that this is
their property while the Constitution and the laws protect
property. In the case that the owners do not wish to recover
houses in kind wherein tenants reside, the Law provides that
they must be compensated by buying out their houses by the
State.
Therefore, the representative of the party concerned is of
the opinion that the contested provisions of the Law are in
compliance with Article 23, Part 1 of Article 24, Article 29
and Parts 2 and 5 of Article 46 of the Constitution.
Regarding Part 1 of Article 4 and Part 2 of Article 15 of
the Law, the representative of the party concerned explained
that the legislator, adopting the disputed norms, was following
several principles, and that of justice and property protection
in the first place. By returning land formerly disseized by the
occupation government, the State attempts to implement justice
in respect to the owners. Therefore, when the owners are
returned the biggest possible formerly possessed land plots,
i.e. when it is increased up to 150 ha by the Law, then the
principle of justice is implemented in wider scope. Besides, by
this new regulation one promotes the establishment of large
farms. A large farm is economically stronger. This is clearly
confirmed not only by scientific conclusions but also the
practice of western European states. The statement that such a
decision is linked with additional financial resources is not
sufficiently grounded. Indeed, these financial resources carry
less weight than the end sought.
The representative of the party concerned underlined that
Item 2 of Article 15 of the Law, under which dwelling-houses
(parts thereof) shall be bought out in the case that they have
virtually been rearranged so that more than 60 per cent of the
main constructions have been changed which makes it impossible
to separate the additional gross floor area from the original
one, and if the gross floor area exceeds by 30 per cent the
original one, is in compliance with the Constitution, as the
owners have the legal as well as moral right to recover their
property. Therefore, in the Law, the legislator intentionally
opted for a size expressed by a percentage form. In addition,
after 60 per cent and not 51 per cent have been established,
one avoids the complex procedure of calculation of the amount
of the changed main constructions.
On the grounds of the arguments set forth, the
representative of the party concerned is convinced that Part 1
of Article 4 of the Law and Item 2 of Article 15 of the Law are
in compliance with Article 5, Parts 2 and 3 of Article 46 and
Part 4 of Article 59 of the Constitution.
IV
In the course of preparation of the case for the
Constitutional Court hearing, written explanations of Prof.
Antanas Stanevičius, Chairman of the Agriculture House of the
Republic of Lithuania, and Dr. Gintautas Šatkauskas, a senior
scientific worker at the Lithuanian Institute for Agrarian
Economy under the Ministry of Agriculture of the Republic of
Lithuania, were received wherein it is pointed out that the
disputed norms of the Law whereby the returning of land to the
owners in kind is regulated is in compliance with the
Constitution.
V
In the hearing of the Court, the representatives of the
petitioner V. Andriukaitis and R. Dovydėnienė reiterated the
arguments pointed out in the petition. The representative of
the party concerned A. Raudonius virtually reiterated the
arguments set forth in the written explanation.
In the court hearing, the representative of the party
concerned A. Kubilius, holding that the request of the
petitioner is groundless, presented these counter-arguments.
The legislator, deciding the questions of restoration of
the rights of ownership to dwelling-houses, adhered to the
following principal positions.
1. When the rights of ownership to existing real property
are restored, the main provision that one is to ground himself
upon is justice. It is impossible to attain justice when, in
case there is a complex discord of interests, the interests of
only one group are satisfied. Speaking of restoration of the
rights of ownership to dwelling-houses which are inhabited by
tenants, it is to be noted that there is one group which is
owners who wish, entirely and without delay, to restore the
rights of ownership in kind to buildings formerly possessed by
them and to dispose of them freely. Meanwhile, the tenants
residing in the said buildings wish to privatise the rented
dwelling place without delay. In case of such discord or even
clash of interests, it is only possible to implement justice by
a compromise decision when the balance of interests is sought.
The legal and financial burden of coordination of interests
should be borne by the State.
2. As shown by the 7-year practice of restoration of the
rights of ownership, the relations between the owners to whom
the rights of ownership to dwelling-houses are restored and the
tenants who reside in such buildings may lead to a potential
conflict, therefore it is necessary to look for such ways of
restoration of the rights of ownership so that the owner would
not have direct legal and financial relations with the tenant,
and, thus, the State should undertake the role of intermediary.
3. The system of guarantees for the tenants who reside in
houses subject to being returned is exceptionally important
when one decides the issue of restoration of the rights of
ownership to dwelling-houses. Not only must this system protect
the tenant from direct legal and financial relations with the
owner but provide clear guarantees under which the tenant will
be allocated another dwelling place of the same value in the
course of the shortest possible time period.
The representative of the party concerned noted that the
Constitutional Court, in deciding the issue of restoration of
the rights of ownership to dwelling-houses in many cases at
law, had stated several principal matters on the grounds of
which the norms of the Law had been formulated. The
representative of the party concerned mentioned the statement
of the 22 December 1995 Constitutional Court ruling whereby 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 the aforesaid dwelling place. The rent with the
tenant may be forfeited and he may be evicted in the case that
he is allocated a corresponding dwelling place. The
representative of the party concerned also reminded the
provisions of the 12 November 1996 Constitutional Court ruling
stipulating that in restoration of the rights of ownership, the
priority is given to returning of property in kind, and that
when the owners are being returned their dwelling-houses, the
interests of tenants are protected by providing them with
another dwelling place. The representative of the party
concerned emphasised the statement which had been stated by the
Constitutional Court for many a time that the legal norm by
which the State burdens itself with a respective
responsibility, in this case-to provide the tenants who reside
in the houses which are subject to being returned to the former
owners with corresponding dwelling place-must be grounded on
material and financial resources, because otherwise this legal
norm becomes ineffective nor is it possible to make use of it.
Summarising the expressed thoughts, the representative of
the party concerned noted that all these principles determined
those principal provisions which had been reinstated into the
Law on 1997, as during the period of 1992-1996 the legislator
held somewhat different views. The legislator is entitled to
implement the principles, expressed by the Constitutional
Court, in various ways. The essential matters, however, such as
coordination of interests of various groups and search for
compromise decisions, as well as clear mechanisms of
restoration and realisation of principal rights-the rights of
ownership and the right of the tenant to a dwelling place-are
obligatory to every mechanism of restoration of the rights of
ownership as provided by the Law.
In the opinion of the representative of the party
concerned, in 1997 the legislator, deciding the issue of
restoration of the rights of ownership to a dwelling place,
scrupulously taking into consideration the provisions set down
by the Constitutional Court, evaded many vices of the former
variants of this law due, first of all, to the fact that it
introduced a new truly compromise mechanism of restoration of
the rights of ownership, by making the owner to whom the right
of ownership is restored rent the returned dwelling place to
the local government. Alongside, by such means the legal
situation of the tenant is preserved: he remains the tenant of
the dwelling place and pays rent to the local government. The
local government is responsible for the maintenance of the
house, thus the owner may and must put in all claims to the
local government but never to the tenants. Thus the legislator
has attained the following main goals.
1. A compromise decision had been adopted: the owner is
returned the property in kind in case he agrees to rent it to
the local government. In reality the owner may use his property
only after the tenants are provided with another dwelling
place.
2. The tenants have not any opportunity to privatise the
dwelling place which is used by them at present, and in case it
is in the process of returning to the owner, however Part 3 of
Article 20 of the Law provides that the local government must,
under the procedure and conditions established by the
Government, issue a guarantee certificate which confirms that
the tenants who reside in the house (part thereof), or
apartment that has been returned to the owner will be provided
with another dwelling place gratis. This provision is much more
favourable to the tenants if compared with analogous provisions
of legal regulation. At present the State grants the tenant
another dwelling place as until now the State provided him with
another dwelling place which he could privatise. This is
another step when the State attempts to burden itself with the
search for compromise.
3. The State obligates local governments to be a legal and
financial intermediary in the relations between the owners and
tenants. In case of conflict of interests of various social
groups, and for which none of the groups is responsible, such a
role of intermediary is obligatory for the State.
4. The State, right after the adoption of the Law,
precisely calculated to find out what material-financial
resources would be needed to provide the tenants with another
dwelling place. In "The Programme for Providing the Tenants of
the Dwelling-Houses which Have Been or are Subject to Being
Returned to the Owners with Apartments" as approved on 4
November 1997 by the Government it is provided that 8,182
apartments will have to be built in the course of 10 years with
the total floor area of 441,828 m2, and it will, under standard
prices, cost 1,005,410,000 Lt. Under this programme it was
provided that for this purpose the means of 18,700,000 Lt must
be allocated in 1998. These means have been allocated in this
years' budget, and during the 9 months of this year the
Ministry of Finance has allocated exactly 75 per cent of this
sum.
The representative of the party concerned, on the grounds
of the aforesaid arguments, did not agree with the argument of
the petitioner that the disputed norms of Article 20 of the Law
do not protect the rights of tenants and that they violate the
principle of the equality of all people before the law. He also
did not recognise that Item 2 of Article 15 whereby
dwelling-houses (parts thereof) shall be bought out in the case
that they have virtually been rearranged so that more than 60
per cent of the main constructions have been changed which
makes it impossible to separate the additional gross floor area
from the original one and if the gross floor area exceeds by 30
per cent the original one contradicts the Constitution. The
representative of the party concerned is of the opinion that
this is not a constitutional but a mere technical dispute
concerning the situation when a rearranged house is not subject
to being returned in kind.
The representative of the party concerned noted that,
speaking of restoration of the rights of ownership, and the
property reform in Lithuania in general, it is most important
to seek actual justice. Such justice is that of compromise. A
compromise is something by which no party is satisfied by 100
per cent. At present this is so, too: both the owners and
tenants want different variants of the Law. It is evident,
however, that there will never be a law with which everyone
would be satisfied.
The Constitutional Court
holds that:
Article 1 of the Republic of Lithuania Law on the
Restoration of Citizens' Rights of Ownership to the Existing
Real Property of 1 July 1997 provides that this law shall
regulate recognition of restoration continuance and procedure
and conditions of the rights of ownership which were commenced
to restore by the formerly effective restitution law, by
assessing the established objective social property relations.
The preamble of the Law underlines that upon restoration
of the independence of the Republic of Lithuania by the Supreme
Council-Reconstituent Seimas by the acts of 11 March 1990, the
laws pressed on by a foreign state ceased to exist by which the
occupation government disseized the possessions from citizens
of the Republic of Lithuania. It is also emphasised therein
that the rights of ownership to property acquired by citizens
of the Republic of Lithuania prior to the occupation are not
abolished and they have continuance, and that restoration of
continuous rights of ownership is based on the provision of the
18 June 1991 Republic of Lithuania Law "On the Procedure and
Conditions of the Restoration of Citizens' Rights of Ownership
to the Existing Real Property" whereby the citizens of the
Republic of Lithuania shall be returned their property, and in
the event that there is not such a possibility, they shall be
fairly compensated. It is also set forth in the preamble of the
Law that the legislator has passed this law while taking
account of the Constitutional Court rulings and decisions
adopted in 1994-1996, and the limit of 150 ha which was
established by the 1922-1940 land reform. The said provisions
of the preamble reflect the legal, historical, and social
context of the enactment of the Law, of which one is to take
account in assessing whether the norms of the Law disputed by
the petitioner are in compliance with the Constitution.
1. On the compliance of Part 4 of Article 4 of the Law
with the Constitution.
Article 4 of the Law provides for the conditions and
procedure for restoration of the rights of ownership to rural
land. Part 4 of the said article prescribes:
"Land shall be returned in kind without delay. In those
parts of the territory of the State of Lithuania where the
patch system existed, land shall be returned and compensated in
kind under land reform projects of organisation of land
exploitation. By the same manner a land plot the value of which
is of equal value shall be transferred into property gratis."
The petitioner notes that the provision of the Law "the
land shall be returned in kind without delay" may be treated in
its absolute meaning, which means that by it land will be
returned in kind without necessary planning nor coordination of
the interests of former owners and those of society. Thus,
according to the petitioner, an advantage has been granted to
the person who is subject to the restoration of the rights of
ownership. Therefore, in the opinion of the petitioner, Part 4
of Article 4 of the Law contradicts Article 29 of the
Constitution, which provides:
"All persons shall be equal before the law, the court, and
other State institutions and officers.
A person may not have his rights restricted in any way, or
be granted any privileges, on the basis of his or her sex,
race, nationality, language, origin, social status, religion,
convictions, or opinions."
In the norms of Article 29 of the Constitution the
principle of the equality of all persons before law is
entrenched. This is a constitutional guarantee for the inborn
human right to be treated on the equal basis with the others.
However, as it was emphasised by the Constitutional Court in
its rulings for many a time, that by itself the constitutional
principle of equality of all persons does not deny the fact
that the law may establish different legal regulation with
respect to certain categories of persons who are in different
situations. The Republic of Lithuania Law on the Restoration of
Citizens' Rights of Ownership to the Existing Real Property is
a special (ad hoc) law. It regulates the conditions and
procedure for restoration of the rights of ownership. It is
evident that the legal situation of persons to whom the rights
of ownership are restored under the Law is different than that
of persons to whom this Law is not applied, and this conditions
respective peculiarities in the Law, when regulating their
rights and duties in the process of restoration of the rights
of ownership. It is important that by such legal regulation the
requirements of the Constitution be not violated, including
those provided for by Article 29 of the Constitution.
Construing the provision of the Law "land shall be
returned in kind without delay" by means of the systematic way,
i.e. together with the other norms of the Law, it is evident
that it does not deny the necessity that when one decides
questions of returning of land in kind, he must observe the
requirements of laws and substatutory legal acts. As the
restoration of the rights of ownership has been going on since
1991, the disputed norm of the Law is of incentive nature: it
demands that the process of returning of land be not
procrastinated and that it be speeded up, and, in respective
cases (for instance, when there are clear boundaries of the
land plot which is subject to being returned) that land be
returned without delay. Taking account of these arguments, as
well as the link of the disputed norm with concrete norms of
the Law regulating the conditions and procedure for restoration
of the rights of ownership to land, there are no grounds to
assess this provision of the Law as granting advantages to the
former owners in respect to other persons.
Therefore one is to conclude that Part 4 of Article 4 of
the Law is in compliance with Article 29 of the Constitution.
2. On the compliance of Parts 9 and 11 of Article 4 of the
Law with the Constitution.
Parts 9 and 11 of Article 4 of the Law provide:
"9. Land on which there are industrial gardens, berry
plantations and arboreta shall be returned in kind to citizens.
The users of this land, provided the land owner wishes and
settles accounts with the users for the trees and berry shrubs
(save for another agreement) must abandon the said land within
3 years. The owners of the returned land shall settle accounts
with the users for the trees and berry shrubs under the
procedure established by the Government.
[...] 11. Land which is in rural areas which was rented to
natural and legal persons with the object of maintenance of
economic-commercial buildings and utilities (those which are
under construction and those that have already been built)
shall be returned in kind. Citizens to whom the said land is
returned in kind must conform to the easements established by
land reform projects of organisation of land exploitation."
The petitioner is of the opinion that these norms of the
law provide that the land which is necessary for maintenance of
economic-commercial buildings and constructions that belong to
natural and legal persons by right of ownership, as well as the
land on which there are industrial gardens, berry plantations
and arboreta belonging to agricultural enterprises, shall be
returned in kind to former owners unconditionally. This
determines decay of the established commercial
infra-structures, and is not in line with the public need to
use land according to its purpose. Therefore, in his opinion,
the aforesaid provisions of the Law contradict Parts 2 and 3 of
Article 46 of the Constitution which prescribe:
"The State shall support economic efforts and initiative
which are useful to the community.
The State shall regulate economic activity so that it
serves the general welfare of the people."
The Constitutional Court notes that judging the issue of
the compliance of the disputed norms of the Law with the
Constitution, along with the parts of Article 46 of the
Constitution which have been pointed out by the petitioner, one
has to take account of Part 1 of the same article, wherein it
is provided that Lithuania's economy shall be based on the
right to private ownership, freedom of individual economic
activity, and initiative. The fundamental role of consolidation
and strengthening of private ownership in the economy of this
country is given by this provision defining the basis of
national economy which is at the beginning of the chapter
National Economy and Labour of the Constitution. There is no
doubt that the other parts, too, of Article 46 of the
Constitution are devoted for strengthening and consolidation of
private ownership in the national economy in the first place.
Therefore it is possible to assert that by the said parts of
Article 46 of the Constitution the duty of the State is
established to support economic efforts and initiative which
are based on the right of private ownership and which are
useful to the community.
The consolidation of private ownership in the national
economy is accomplished on the basis of privatisation and
re-privatisation. Land reform and restoration of the rights of
ownership to land which are accomplished in this country are
inseparable parts of the same process. By legal regulation of
this process one attempts to ensure appropriate restitution
procedure, alongside, the provision of the Constitution is
implemented that Lithuania's economy shall be based on the
right to private ownership. The Republic of Lithuania Law on
the Restoration of Citizens' Rights of Ownership to the
Existing Real Property gives priority to returning of property
in kind. Returning of property in kind, however, in many cases
is linked with respective conditions and restrictions as
established by the Law. The conditions and procedure of
restoration of the rights of ownership to rural land are
regulated by Article 4 of the Law the compliance of provisions
whereof with the Constitution is disputed by the petitioner.
For many a time in its rulings the Constitutional Court
has noted that in restoring the rights of ownership to land one
has to coordinate the interests of both the land owners and its
present users. For example, in its ruling of 27 May 1994, the
Court held: "Unconditional restoration of land would violate
industrial-technological integrity of existing complexes, it
even can lead to the ruining of all the operation of these
units, so that their useful technological potential would be
left unused. This would impair the public need for specialized
production."
Investigating in this respect Part 9 of Article 4 of the
Law which is disputed by the petitioner, it is to be noted that
priority is given to returning of land in kind therein,
alongside legal measures are provided for the protection of the
interests of present land users. For instance, after a citizen
has been returned his land, the owners of trees and berry
shrubs which are on the said land are permitted without any
preliminary conditions to use industrial gardens, berry
plantations and arboreta for 3 years. An analysis of the norms
established by Part 9 of Article 4 of the Law permits to
maintain that the land owner who has not settled accounts with
the users for the trees and berry shrubs has no right to
prohibit to continue to use the gardens. Alongside, the
disputed part of Article 4 of the Law does not deprive of the
possibility to conclude an agreement between the land owner and
its user on land rent. Thus the allegation of the petitioner
that the Law provides for unconditional returning of land
regardless of the established socio-economic relations is to be
held as groundless.
Part 11 of Article 4 of the Law regulates returning of
land which was rented to natural and legal persons for
maintenance of economic-commercial buildings and utilities
which belong to them by right of ownership to the former
owners. Attempting to secure the use of the buildings and
utilities which are on the land which has been returned
according to their purpose, it is established by disputed Part
11 of Article 4 that citizens to whom the said land has been
returned in kind must conform to the easements established by
land reform projects of organisation of land exploitation. Land
easements are defined by the Republic of Lithuania Law on Land
as the obligations of the landowner or the user of state-owned
land to grant, according to the procedure established by law,
other persons permission to make restricted use of a portion of
land plot. Thus the law secures that the owners of
industrial-commercial buildings will have an opportunity to
make use of the territory necessary for the maintenance of the
buildings.
Thus, although, if compared with the restitution law in
force earlier, the legislator expanded returning of rural land
in kind, alongside the Law provides for necessary guarantees
that land and existing structures be further used according to
their purpose. Therefore a conclusion is to be drawn that Parts
9 and 11 of Article 4 of the Law are in compliance with Parts 2
and 3 of Article 46 of the Constitution wherein it is
established that the State shall support economic efforts and
initiative which are useful to the community and that it shall
regulate economic activity so that it serves the general
welfare of the people.
3. On the compliance of Part 1 of Article 8 and Parts 1,
2, 3 and 4 of Article 20 of the Law with the Constitution.
Article 8 of the Law regulates the conditions and
procedure for restoration of the rights of ownership to
dwelling-houses (parts thereof) and apartments. It is
prescribed in Part 1 thereof:
"The citizens who are pointed out by Article 2 of this law
shall be restored the rights of ownership to dwelling-houses
(parts thereof) and apartments by returning them in kind save
the dwelling-houses (parts thereof) and apartments which are
subject to buying out by the State under Article 15 of this
law."
Article 20 of the Law establishes state guarantees for the
tenants of the dwelling-houses (parts thereof) and apartments
subject to being returned, and regulates the rights and duties
of tenants and the owners. Parts 1, 2, 3 and 4 of the said
article provide:
"1. When a citizen is returned a dwelling-house (part
thereof) or apartment wherein tenants reside, all the rights
and duties of tenants shall be taken over by the local
government in pursuance of the agreement on dwelling place rent
under the procedure established by the Government until the
local government provides the tenant with another dwelling
place or settles accounts with him by means of other ways as
established by this law. Until that time the owner shall be
prohibited to cancel the agreement on rent with the local
government, and it shall be prohibited to evict the tenants
except as in cases provided for by the Civil Code.
2. The local government, after it has taken over the
rights and duties of tenants, shall rent the dwelling place
under the procedure and conditions established by the
Government to the tenants residing in the said dwelling place,
and shall take care of its maintenance and repairs. The said
tenants shall pay rent and payment for communal service to the
local government under the rates set down by the local
government, while the local government shall settle accounts
with the owner of the returned dwelling-house (part thereof) or
apartment according to the agreement on dwelling place rent
under the procedure and conditions established by the
Government.
3. The local government must, under the procedure and
conditions established by the Government, issue a guarantee
certificate confirming that the tenant who resides in the
returned dwelling-house (part thereof) or apartment will be
provided with another dwelling place gratis. Provided the
tenant refuses such an opportunity, then the local government
must, under the procedure and conditions established by the
Government, compensate the expenses of acquisition of another
dwelling place or, at the request of the tenant, to allocate
gratis a land plot for building a dwelling-house. The tenant
who has been given another dwelling place or paid compensation
for acquisition of another dwelling place must empty the
dwelling place he had been using within 6 months, while in case
he was allocated gratis a land plot for building a
dwelling-house, he must do so within 1 year.
4. The value of another dwelling place which is allocated
gratis to the tenants, the expenses subject to compensation of
acquisition of another dwelling place, the size of the land
plot allocated gratis for building a dwelling-house, shall be
established under the procedure established by the Government."
The petitioner maintains that the said parts of Articles 8
and 20 of the Law contradict Articles 23, 24, 29, and Parts 2
and 5 of Article 46 of the Constitution.
3.1. Article 23 of the Constitution provides:
"Property shall be inviolable.
The rights of ownership shall be protected by law.
Property may only be seized for the needs of society
according to the procedure established by law and must be
adequately compensated for."
The petitioner notes that the disputed parts of Articles 8
and 20 of the Law contain contradictions of double nature to
this article of the Constitution: on the one hand, the rights
of ownership of persons who have acquired dwelling places in
the houses subject to being returned are violated, on the other
hand, the rights of ownership of persons to whom the rights of
ownership to dwelling-houses by returning them in kind are
restored by the Law are not protected sufficiently.
The Constitutional Court notes that in the doctrine the
constitutional guarantee of property protection is, as a rule,
referred to as the status quo guarantee, as it, first of all,
protects persons' property which they possess at the moment.
Alongside, a broader concept of this constitutional guarantee
is recognised. From this viewpoint it is important that from
the day of the restoration of the independence of the State of
Lithuania, by legal acts the legislator recognised the
continuance of the rights of ownership of Lithuanian citizens
which had been unlawfully terminated. Therefore, the lawful
interests of persons whose rights of ownership had been
terminated by the occupation government are protected, while
account is taken of the constitutional provisions of property
protection.
Regarding the first aspect of the question raised by the
petitioner, one is to note that Part 1 of Article 8 of the Law
provides that the rights of ownership to dwelling-houses (parts
thereof) and apartments shall be restored by returning them in
kind save the dwelling-houses (parts thereof) and apartments
which are subject to buying out by the State under Article 15
of the Law. The disputed norm of the Law does not contain any
all-encompassing rule that all dwelling-houses must be returned
in kind. It points out to Article 15 of the Law Item 3 whereof
provides that the dwelling-houses (parts thereof) and
apartments shall be bought out by the State from the citizens
as pointed out by Article 2 of this Law and that they shall be
compensated in the case that the said houses have been acquired
into private ownership by law. Thus, under the Law, it is
impossible to return such dwelling-houses (parts thereof) and
apartments in kind to persons who are subject to restoration of
the rights of ownership. Such dwelling places will remain
property of their present owners, and the disputed norm of the
Law does not violate their rights of ownership.
In the opinion of the petitioner, the disputed norms of
the Law also contradict Article 23 of the Constitution in that
they not sufficiently protect the owner who is subject to
restoration of the rights of ownership, as he is obligated to
make an agreement on rent of the dwelling-house (part thereof)
or apartment with the local government.
Assessing the disputed norms of the Law from this point of
view, the Constitutional Court notes that, by regulating
implementation of the restitution, one attempts to restore
justice in respect to persons who have suffered from the
occupation government. Justice is one of moral values and
fundamentals of the state under the rule of law. However, as
the Constitutional Court held in its rulings for many a time,
it is impossible to attain justice when interests of one group
or one person are recognised while interests of others are
denied.
Attempting to harmonise the interests of the owners of
houses subject to being returned and the tenants residing in
such houses (parts thereof) and apartments, the Law
correspondingly regulates the interrelations of the
dwelling-house owner, the local government, and the tenants.
After the person has been returned a dwelling-house (part
thereof) or apartment wherein tenants reside, by Part 1 of
Article 20 of the Law, all rights and duties of the tenant
shall be taken over by the local government. The owner and the
tenants residing in the house that has been returned to the
former are not linked by dwelling place rent relations. Part 2
of Article 20 of the Law provides that the local government
shall settle accounts with the owner of the returned
dwelling-house (part thereof) or apartment according to the
agreement on dwelling place rent under the procedure and
conditions established by the Government. The purpose of these
legal measures of temporary character is protection of the
rights of tenants as well as those of the owners of
dwelling-houses. Besides, the aforesaid measures, thus the
obligation of the owner of the dwelling-house to conclude an
agreement on rent with the local government too, are applied
only in case there is a consent of the owner. In case citizens
do not wish to recover their houses in kind wherein tenants
reside, or they do not agree with the conditions stipulated by
Article 20 of the Law, they are compensated under the procedure
as provided for by Article 16 of the Law (Part 5 of Article 8
of the Law). Besides, the Constitutional Court has noted in its
many rulings that fair compensation also ensures restoration of
the rights of ownership.
On the grounds of the aforementioned arguments, it is to
be concluded that Part 1 of Article 8, Parts 1, 2, 3 and 4 of
Article 20 of the Law are in compliance with Article 23 of the
Constitution.
3.2. Article 24 of the Constitution provides:
"A person's dwelling place shall be inviolable.
Without the consent of the resident(s), entrance into a
dwelling place shall only be permitted upon a corresponding
court order, or according to the procedure established by law
when the objective of such an action is to protect public
order, apprehend a criminal, or save a person's life, health,
or property."
The petitioner is of the opinion that by restoration of
the rights of ownership to dwelling-houses by returning them in
kind as regulated by the disputed parts of Articles 8 and 20 of
Law the constitutional guarantee of inviolability of the
dwelling-place is violated; the tenants who reside in their
dwelling place feel insecure.
Regarding the aforesaid arguments of the petitioner, it is
to be noted that the norms of Parts 1 and 2 of Article 24 of
the Constitution constitute an indivisible whole. The
constitutional guarantee of inviolability of the dwelling-place
protects not the right of an individual to a dwelling place
(e.g., the right to acquire a dwelling place) but the
individual's dwelling place itself from entrance into it by
strangers. This constitutional guarantee obligates the State,
i.e. its legislative, judicial and executive powers, to protect
the dwelling place of individuals by respective legal norms. It
is important that by Part 2 of Article 24 of the Constitution
cases of exceptional character are listed which may serve
legitimate grounds to enter the dwelling place without the
consent of the resident, i.e. only by a court decision or
procedure established by the law.
The Constitution secures inviolability of private dwelling
place, as well as that of rented by a resident. Therefore,
after the rights of ownership to a dwelling-house (part
thereof) or apartment have been restored under Part 1 of
Article 8 of the Law, the tenant continues to enjoy the
constitutional guarantee of inviolability of the dwelling place
wherein he resides. Seeking to protect the owner from possible
attempt at his rights by the owner of the dwelling place, as
well as inviolability of dwelling place, under the said norms
of Article 20 of the Law the tenant remains in legal relations
with the local government but not with the owner until another
dwelling place is allocated to him. Therefore there are no
grounds to maintain that the disputed norms of Articles 8 and
20 of the Law do not guarantee inviolability of dwelling place
where at present tenants reside. Thus a conclusion is to be
drawn that the said norms are in compliance with Part 1 of
Article 24.
3.3. The petitioner is of the opinion that Part 1 of
Article 8, Parts 1, 2, 3 and 4 of the Law contradict the
principle of equality of persons which is entrenched in Article
29 of the Constitution.
Giving his reasons, the petitioner underlines that under
Part 1 of Article 8 of the Law, the owners will be returned
their dwelling-houses together with the tenants who reside
there. Due to this, the legal conditions of tenants become
essentially changed, and the owners are granted privileges. The
disputed norms of Article 20 of the Law do not provide the
tenants with any guarantees as they are not supported by any
material or financial resources.
It has been mentioned in this ruling of the Constitutional
Court, that under Part 1 of Article 8 of the Law, the rights of
ownership to dwelling-houses (parts thereof) and apartments are
to be restored by returning them in kind save the
dwelling-houses (parts thereof) and apartments which are
subject to buying out by the State under Article 15 of this
law. Thus a fundamental provision of the restitution
implemented in this country has been consolidated that in case
of restoration of the rights of ownership the priority is given
to returning of property in kind.
Alongside, one is to note that when the restoration of the
rights of ownership to dwelling-houses is regulated legally,
there appears an inevitable necessity to coordinate the
interests of persons to whom the rights of ownership to
dwelling-houses are restored and those of tenants who reside in
the said houses.
The returning of dwelling-houses in kind is conditioned by
the rules and requirements as provided for by the Law. Such
restrictions for the owners have been established by Article 20
of the Law entitled Guarantees of the State for the Tenants of
Dwelling-Houses (Parts Thereof) and Apartments. The Rights and
Duties of Tenants and Owners. Under Parts 1 and 2 of Article 20
of the Law, the tenant, after the owner has been returned the
dwelling-house in kind, continues to remain in dwelling place
rent relations with the local government. The owner is
prohibited to cancel the agreement on rent with the local
government, nor may he evict the tenants save as in the cases
provided for by the Civil Code. Thus, elucidating disputed Part
1 of Article 8 of the Law together with the other norms of the
Law, the assertion that by the norm contained by Part 1 of
Article 8 of the Law privileges are granted to persons of one
social group-the owners-is to be held as a groundless one.
Deciding in its turn whether the disputed norms of Article
20 of the Law which regulate the legal situation of tenants are
in conformity with the constitutional principle of equality of
persons, one has to compare the present legal regulation of the
rights and guarantees of tenants with the one which existed
earlier, as the preamble and Article 1 of the Law, as
mentioned, recognise the continuance of restoration of the
rights of ownership. Of course, this continuance provision must
in a certain scope be applied to the tenants as well.
Thus, under the 18 June 1991 law on restitution, the
tenants who reside in houses subject to being returned had to
be provided with another dwelling place which they had the
right to buy out under the Law on Privatisation of Apartments
by making use of the deposited state one-time payments
(vouchers). Meanwhile, Article 20 of the Law provides for
guarantees of different nature for tenants of dwelling places.
For instance, under Part 1 of the said article, the tenant will
reside in the house that has been returned to the owner "until
the State provides the tenant with another dwelling place or
settles accounts with him by means of other ways as established
by this law."
Part 3 of Article 20 of the Law obligates local
governments to issue, under the procedure and conditions
established by the Government, a guarantee certificate which
confirms that the tenants who reside in the house (part
thereof), or apartment that has been returned to the owner will
be provided with another dwelling place gratis. By this norm of
the Law, the right has been delegated to the Government to
establish a procedure and conditions of issuance of the
guarantee certificate. Thus, the conditions established by the
Government will determine whether the guarantee certificate
will be issued or not, i.e., whether another dwelling place
will be provided or not. However, questions of this nature
which are directly linked with the protection of human rights
must be regulated by laws. Acts adopted by the Government by
their force are not equal to a law, nor may they compete nor
replace a law.
In the course of investigation of Part 3 of Article 20 of
the Law, essential uncertainties occur as for the nature, force
and content of the issued guarantee certificate to the tenants.
As it has been mentioned in this ruling, the said part
obligates local governments to issue a guarantee certificate
which confirms that the tenants will be provided with another
dwelling place gratis. As Part 3 of Article 20 of the Law does
not contain any provision that this is a State guarantee
(obligation by the State), such a document may be treated as a
legal act passed by the local government the force of which,
from the point of view of the protection of human rights, would
be insufficient in this case.
Under Part 3 of Article 20 of the Law, the tenants
residing in the house (part thereof) or apartment which has
been returned to a respective citizen must be guaranteed that
another dwelling place will be allocated gratis. Allocation
gratis means transfer of a dwelling place into private
ownership of the tenants. Thus the legal status of the people
residing in the dwelling-houses which have been returned will
have to change irrespective of whether this corresponds with
their will. In connection with this, it is noteworthy that Part
5 of Article 20 of the Law virtually regulates an analogous
question in a different way: tenants residing in the houses the
owners of which do not wish to recover them are granted the
right to buy out this dwelling place under the Law on
Privatisation of Apartments but they are not allocated this
dwelling place, as in the former case, gratis.
Pursuant to Part 3 of Article 20 of the Law, the tenant
must be allocated another dwelling place gratuitously which is
in line with the requirements of the Law on Self-provision of
People with a Dwelling Place, thus its size may be greater than
that which is rented. In case Part 3 of Article 20 of the Law
were construed in such a way, the norm of Part 4 of the same
article dealing with the valuation of the allocated dwelling
place would become unnecessary. It is noteworthy that the
provision of the Law regarding the valuation of the allocated
dwelling place has been particularised by Article 9 of the 16
June 1998 Republic of Lithuania Law on the Amount, Sources,
Payment Terms and Procedure of Compensation for the Real
Property Bought Out by the State as Well as the Guarantees and
Privileges Provided for by the Law on the Restoration of
Citizens' Rights of Ownership to the Existing Real Property. It
is provided therein that in the case that the value of the
dwelling place transferred to the tenant exceeds that of the
dwelling place that he has rented, only that portion of the
newly allocated dwelling place shall be transferred into
property gratis which corresponds with the value of the
dwelling place that he has rented. The tenant must buy out the
remaining portion of the dwelling place in instalments by the
market price no later than within 10 years under the procedure
established by the Government. In such a case, however, the
content of the guarantee for the tenants provided for by Part 3
of Article 20 of the Law is virtually distorted.
Thus, even though the purpose of Article 20 of the Law is
to establish State guarantees for the tenants residing in
houses subject to being returned to the former owners or in
those that have been returned to the latter, however, an
analysis of the norms established by Parts 3 and 4 thereof
permits to conclude that the guarantee to allocate another
dwelling place to the tenants lacks the necessary legal
content.
Summarising the arguments set forth, the Constitutional
Court holds that the provisions of Part 3 of Article 20 of the
Law stipulating "The local government must, under the procedure
and conditions established by the Government, issue a guarantee
certificate confirming that the tenant who resides in the
returned dwelling-house (part thereof) or apartment will be
provided with another dwelling place gratis. Provided the
tenant refuses such an opportunity, then the local government
must, under the procedure and conditions established by the
Government, compensate the expenses of acquisition of another
dwelling place or, at the request of the tenant, allocate a
land plot gratis for building a dwelling-house" does not ensure
the protection of the rights of tenants. Part 4 of Article 20
of the Law presupposes the fact that, contrary to what has been
established in the aforesaid provisions of Part 3 of Article 20
of the Law, in corresponding situations the tenant will have to
buy out a portion of the newly allocated dwelling place. Thus
this part of Article 20 of the Law, too, is deficient from the
point of view of the protection of the rights of tenants.
On the grounds of the set forth above, it is to be
concluded that the said provisions of Part 3 of Article 20 of
the Law, as well as Part 4 of Article 20 of the Law in the
scope that it is linked with the implementation of these norms
contradict the requirement of the equality of all persons
before the law which is established by Article 29 of the
Constitution.
3.4. Parts 2 and 5 of Article 46 of the Constitution
provide:
"The State shall support economic efforts and initiative
which are useful to the community.
[...] The State shall defend the interests of the
consumers."
The petitioner notes that to implement the disputed norms
of Article 8 and Article 20 of the Law will demand much
material expenditures. The petitioner doubts whether this is in
line with the provision of Part 2 of Article 46 of the
Constitution.
Concerning these arguments of the petitioner it is
noteworthy that by the said norms of the chapter of the
Constitution which is entitled National Economy and Labour the
main rules of regulation of the national economy are
established. The area of regulation of the disputed parts of
Article 8 and Article 20 of the Law is restoration of the
rights of ownership to dwelling-houses which were terminated by
the occupation government by returning them in kind and
safeguarding of the protection of rights of tenants residing in
such houses. It goes without saying, respective public
expenditures are needed to solve this problem which, from the
legal and social standpoint, is very complex. As mentioned,
however, this does not fall within the sphere of economic
activity.
The petitioner is of the opinion that the tenant is a
consumer. Under the Constitution, the State must defend the
interests of the consumers, however this is not ensured by the
disputed norms of Article 8 and 20 of the Law.
It is noteworthy that under Article 1 of the Republic of
Lithuania Law on Consumer Protection a consumer is a person who
buys goods and uses services for personal or household use.
Dwelling place rent is an individual institution of civil law,
therefore the legal status of the tenant of a dwelling place is
not analogous to that of the consumer. Thus, there are no
grounds to link the protection of the rights of tenants with
the constitutional guarantee of consumer rights protection and
to recognise that the disputed norms of the Law contradict the
provision of the Constitution pointed out by the petitioner.
Taking account of the set forth above, it is to be
concluded that Part 1 of Article 8, and Parts 1, 2, 3 and 4 of
Article 20 of the Law are in compliance with Parts 2 and 5 of
Article 46 of the Constitution.
4. On the compliance of Part 1 of Article 4 and Item 2 of
Article 15 of the Law with the Constitution.
Part 1 of Article 4 of the Law provides:
"The rights of ownership to land (the plot whereof does
not exceed 150 ha) including forests and water bodies formerly
possessed by the owner shall be restored. Provided the land
plot including forests and water bodies exceeded 150 ha, the
citizen has the right to choose, at the former domain, the
place of the requested land plot, forest or water body to which
the rights of ownership must be restored by this law."
Under Item 2 of Article 15 of the Law, "dwelling-houses
(parts thereof) and apartments shall be bought out from the
citizens pointed out by Article 2 of this law and shall be
compensated under Article 16 of this law in the case that they
have virtually been rearranged so that more than 60 per cent of
the main constructions have been changed which makes it
impossible to separate the additional gross floor area from the
original one and if the gross floor area exceeds by 30 per cent
the original one."
The petitioner contends that due to the decision of the
legislator to increase the land plot to which the rights of
ownership may be restored under the Law, additional financial
resources will be needed as the plans of organisation of land
exploitation will have to be revised, and the interests of land
owners and land users will have to be coordinated. According to
the petitioner, by another disputed norm the legislator
provided for returning of virtually rebuilt dwelling-houses to
the owners due to which a big portion of public property may be
distributed to private persons. The petitioner is of the
opinion that the legislator, Seimas members, while adopting the
aforesaid norms of the law, were not following the interests of
the State nor did they comply with the requirements of the
Constitution. According to the petitioner, Part 1 of Article 4
and Item 2 of Article 15 of the Law contradict Article 5, Parts
2 and 3 of Article 46, and Part 4 of Article 59 of the
Constitution.
4.1. Article 5 of the Constitution provides:
"In Lithuania, the powers of the State shall be exercised
by the Seimas, the President of the Republic and the
Government, and the Judiciary.
The scope of powers shall be defined by the Constitution.
Institutions of power shall serve the people."
The Seimas exercises state power by passing laws. The
Seimas is composed by the representatives of the People-Seimas
members. Part 4 of Article 59 of the Constitution provides:
"In office, Seimas members shall act in accordance with
the Constitution of the Republic of Lithuania, the interests of
the State, as well as their own consciences, and may not be
restricted by any mandates."
Deciding the issue of conformity of the disputed norms of
the Law with the said provisions of the Constitution, the
Constitutional Court notes that on the confirmation of
continuance of the rights of ownership of the Lithuanian
citizens which had been terminated by the occupation
government, there appeared a necessity to regulate the actual
restoration of subjective rights to particular property by a
legal act. Establishment of the conditions for the restoration
of the rights of ownership is the prerogative of the
legislator. Assessing the compliance of the amendments to the
18 June 1991 Law "On the Conditions of the Restoration of
Citizens' Rights of Ownership" with the Constitution, in its
ruling of 27 May 1994, the Constitutional Court held that the
establishment of new conditions to be applied in the
restoration of the rights of ownership is also within the
competence of the legislator. The powers of the legislator are
circumscribed by the Constitution, therefore, it goes without
saying, the legal norms regulating the conditions of
restoration of the rights of ownership must be in conformity
with the Constitution.
Taking account of the limit of 150 ha which was
established by the 1922-1940 land reform, the Law provides that
the rights of ownership to land (the plot whereof does not
exceed 150 ha) including forests and water bodies formerly
possessed by the owner shall be restored. Additional financial
resources needed to enforce this norm of the Law which are
linked with the necessity to revise plans of organisation of
land exploitation etc. may not outweigh the sought aim to
restore justice in respect to the people who have suffered from
the occupation government, and to protect their rights of
ownership. Furthermore, it is assumed that when the owners have
been returned greater land plots, they will manage their farms
in a more effective way and this will render more benefit to
society. Such a decision of the legislator as established by
Part 1 of Article 4 of the Law is in conformity with the
provisions, pointed out by the petitioner, of Parts 2 and 3 of
Article 46 of the Constitution on the social function of
private ownership and which have already been discussed in this
ruling of the Constitutional Court. Part 1 of Article 4 of the
Law are also in compliance with Article 5 and Part 4 of Article
59 of the Constitution.
4.2. Item 2 of Article 15 of the Law provides for the
cases when dwelling-houses which have been rebuilt are not
returned to the owners in kind but are bought out by the State.
Taking account of the provision of the Law on continuance of
the rights of ownership, it is important to recall as to how
this issue was regulated by the prior in force law on
restitution.
For instance, Article 14 of the 18 June 1991 law, as well
as the 12 January 1993 and 11 January 1994 amendments to this
article, established that dwelling houses shall be bought out
by the State if the gross floor area has been increased by more
than one third in the manner which makes it impossible to
separate the additional gross floor area from the original one.
The amendment of 11 January 1994, along with the said
provision, stipulates: "[...] or if the main constructions have
been changed by more than 50 per cent." Such a legal regulation
was essentially changed only by the amendment of 3 June 1995.
The disputed norm of the Law also contains the
aforementioned condition that the dwelling-houses shall be
bought out by the State if the gross floor area exceeds by 30
per cent the original one. However, the first stipulation of
this norm is that more than 60 per cent of the main
constructions must be replaced. Assessing this legal
regulation, one is to note that it is not fair in respect to
the citizens to whom the rights of ownership to houses have
already been restored when one was taking account of another
norm of replacement of the main constructions, which determined
that dwelling-houses were not to be returned to them in kind
but bought out by the State. Besides, during the whole period
when the 18 June 1991 law on restitution was in force, the
persons, to whom dwelling-houses (parts thereof) or apartments
were being returned in kind or another dwelling place was
allocated into ownership instead of them, had, together with
the members of their family, to empty the rented dwelling place
of the State (local government) or public apartment fund. At
present the law does not contain such an obligation.
On the grounds of the disputed norm of the Law, the owner
may be returned his dwelling-house in kind, from which only 40
per cent of the main constructions are left, and which is,
therefore, virtually a new object of the rights of ownership.
Assessing this norm, one is also to note that the Law does not
provide for the obligation for the owner to whom the
dwelling-house has been returned in kind to compensate the
house improvement expenses to the State as it was established
by the prior in effect law on restitution. Therefore the
disputed norm of the law is not fair in respect to other
members of society as their collectively accumulated means were
used to rebuilt and improve the dwelling-houses which are
returned to the owners.
Thus there exist grounds to assert that the existing legal
regulation grants certain privileges to the persons to whom the
rights of ownership to dwelling-houses are restored if compared
to other members of society. Therefore it contradicts the
requirement established by Article 29 of the Constitution that
all persons shall be equal before the law.
Taking account of the arguments set forth, one is to
conclude that the provision "more than 60 per cent of the main
constructions have been replaced" of Item 2 of Article 15 of
the Law contradicts Article 29 as well as Parts 2 and 3 of
Article 46 of the Constitution. Item 2 of Article 15 of the Law
is in compliance with Article 5 and Part 4 of Article 59 of the
Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the
Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
1. To recognise that Parts 1, 4, 9 and 11 of Article 4,
Part 1 of Article 8, and Parts 1 and 2 of Article 20 of the
Republic of Lithuania Law on the Restoration of Citizens'
Rights of Ownership to the Existing Real Property are in
compliance with the Constitution of the Republic of Lithuania.
2. To recognise that the provision "more than 60 per cent
of the main constructions have been replaced" of Item 2 of
Article 15 of the Republic of Lithuania Law on the Restoration
of Citizens' Rights of Ownership to the Existing Real Property
contradicts Article 29 as well as Parts 2 and 3 of Article 46
of the Constitution of the Republic of Lithuania.
3. To recognise that the provision "the local government
must, under the procedure and conditions established by the
Government, issue a guarantee certificate confirming that the
tenant who resides in the returned dwelling-house (part
thereof) or apartment will be provided with another dwelling
place gratis. Provided the tenant refuses such an opportunity,
then the local government must, under the procedure and
conditions established by the Government, compensate the
expenses of acquisition of another dwelling place or, at the
request of the tenant, to allocate a land plot gratis for
building a dwelling-house" of Part 3 of Article 20 of the
Republic of Lithuania Law on the Restoration of Citizens'
Rights of Ownership to the Existing Real Property as well as
Part 4 of Article 20 of the said law in as much as it is linked
with the enforcement of the said norms contradicts Article 29
of 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.