Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Part 2 of Article 5 of the
Republic of Lithuanian Law on Museums with the
Constitution of the Republic of Lithuania
Vilnius, 16 March 1999
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 representative of the party concerned-the Seimas of
the Republic of Lithuania-Darius Karvelis, a consultant to the
Law Department of the Chancery of the Seimas,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the
Republic of Lithuania Law on the Constitutional Court, on 5
March 1999 in its public hearing conducted the investigation of
Case No. 7/98 subsequent to the petition submitted to the Court
by the petitioner-the College of Civil Cases Division of the
Court of Appeal of Lithuania-requesting to investigate if Part
2 of Article 5 of the Republic of Lithuanian Law on Museums was
in compliance with Article 23 of the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
I
By its decision of 13 May 1997, the Vilnius City Court of
the First District, rejected the claim of the claimant A. V.
Karosienė concerning claiming of property from unlawful
possession by the others.
The Vilnius Regional Court, on investigating the appeal of
the claimant, by its ruling of 23 June 1997, adjudicated that
the decision of the district court shall remain effective
without alterations.
On 17 February 1998, the College of Civil Cases Division
of the Court of Appeal of Lithuania was investigating a civil
case pursuant to the appeal by the claimant A. V. Karosienė in
the said civil case. By its ruling, the court suspended the
investigation of the case and appealed to the Constitutional
Court with the petition requesting to investigate whether Part
2 of Article 5 of the Republic of Lithuania Law on Museums
(Official Gazette Valstybės žinios, 1995, No. 53-1292) was in
compliance with Article 23 of the Constitution.
II
The arguments of the petitioner are based on the following
arguments.
The father of the claimant was convicted by the Special
Conference during the years of Soviet occupation, and his
property was confiscated. On 12 October 1951, 27 of the
confiscated pictures were handed to the Vilnius State Art
Museum. On 25 May 1989, her father was posthumously vindicated
and his full civil rights were restored. On accepting the
legacy, the claimant appealed to court claiming the 27 pictures
from the Lithuanian Art Museum. The claim was rejected on the
grounds of Part 2 of Article 5 of the Law on Museums wherein it
is provided that museum valuables comprising the fund of State
museums shall be State property; the museum valuables of the
said fund shall not be subject to being returned to their
former owners.
In opinion of the petitioner, the aforesaid norms of the
law contradict the principle of inviolability of property and
protection of the rights of ownership as established by Article
23 of the Constitution. The right of ownership is the right of
the owner to manage, use and dispose of his property at his
discretion and when doing so, the owner must not violate the
law nor the rights and interests of other persons. The laws do
not provide for any situations or procedure of seizure of
museum values. Part 2 of Article 5 of the Law on Museums deny
the constitutional guarantees given to private ownership, and
unlawful appearance of the right of ownership for the State is
consolidated therein.
III
In the course of the preparation of the case for the
Constitutional Court hearing, the representative of the party
concerned V. Baliūnienė presented the following
counter-arguments.
Conforming to Article 42 of the Constitution whereby the
State shall support culture and science, and shall be concerned
with the protection of Lithuanian history, art, and other
cultural monuments and valuables, and taking account of the
importance of the protection of movable cultural heritage, in
1995-1996 the Seimas adopted laws regulating the protection of
movable valuables of culture. In 1995 the Republic of Lithuania
Law on Archives, Republic of Lithuania Law on Libraries and Law
on Museums were adopted. In 1996 the Seimas passed the Republic
of Lithuania Law on the Basics of National Security which names
cultural heritage as one of the main objects of national
security. The main objective of the aforesaid laws is
preservation of the accumulated movable valuables of culture
for the posterity as loss of any valuable on either its
destruction or its irretrievable taking away from Lithuania or
loss of its cultural value is great damage for society in
general.
The representative of the party concerned is of the
opinion that the legislator, taking account of the public
importance of movable cultural valuables and the necessity of
their preservation, established by the Law on Archives and the
Law on Museums that archive documents and museum valuables kept
in State depositories are not subject to being returned to the
former owners. This provision was based by the legislator that
it is only the valuables preserved in museums are accessible to
the public at large and that museums not only ensure
registration and safe-keeping of valuables of culture but they
also investigate, preserve and restore them. The Seimas
repeated the provision of safe-keeping of valuables of culture
in State depositories in Article 17 of the Republic of
Lithuania Law on Protection of Movable Valuables of Culture,
Part 1 whereof provides that safe-keeping and accumulation of
movable valuables of culture in State depositories comprise one
of the basic parts in State protection of movable valuables of
culture. In addition, the disputed provision is grounded on the
fact that in Lithuania there was not a law on restoration of
the rights of ownership to movable property.
Article 23 of the Constitution contains a norm that
property may only be seized for the needs of society and must
be adequately compensated for. This norm is particularised by
Article 163 of the Civil Code wherein it is established that in
cases and procedure provided for by the laws of the Republic of
Lithuania it is permitted to seize property from the owner for
the needs of society by paying him its value (requisition), as
well as seize property which is not subject to recompense
enforcing a sanction for violation of law. Part 2 of Article 5
of the Law on Museums provides for the case when the State
seizes property from the owner for the needs of society. The
procedure of recompense for this property is established by
Resolution No. 368 "On the ownership and personal non-ownership
rights as well as protection of civil honour and dignity of
persons whose eviction has been recognised unlawful and
groundless and who are recognised vindicated ones" which was
adopted by the Soviet of Ministers of the Soviet Socialist
Republic of Lithuania on 27 December 1988.
In the opinion of the representative of the party
concerned, one must take into consideration the common
principles of the laws passed by the State on restoration of
the rights of ownership to real property. The law regulating
the restoration of the rights of citizens to the existing real
property did not provide for unconditional returning of items
of property in kind, either.
The representative of the party concerned maintains that
the norm of Part 2 of Article 5 of the Law on Museums does not
deny the principle of inviolability and protection of the right
of ownership legitimised by Article 23 of the Constitution nor
does it consolidate an unlawful appearance of the right of
ownership to the State. The said norm, taking account of
important needs of society, merely legitimises an opportunity
not to return the aforesaid valuables to the former owners in
kind. In addition, the representative of the party concerned is
of the opinion that one has to agree with the fact that the
disputed norm of the law might be particularised (or this might
be regulated by an individual law) in the course of
establishing the procedure of seizure of museum valuables kept
at museum depositories from the owners for the needs of society
and that of recompense payment.
IV
In the course of the preparation of the case for judicial
investigation, an explanation of the specialist-Assoc. Prof. A.
Taminskas who works at the Civil Law and Civil Procedure
Department of Law Faculty of Vilnius University, was received.
In the opinion of the specialist, Part 2 of Article 5 of the
Law on Museums which may be understood as appearance of the
right of public ownership on the grounds of an unlawful action
of confiscation is to be assessed as contradicting Article 23
of the Constitution. Besides, valuables of culture may get into
the depositories of State museums by other ways as well.
The specialist is of the opinion that the norm contained
by Part 4 of Article 47 of the Constitution whereby the right
of ownership of historical, archaeological and cultural
facilities shall exclusively belong to the Republic of
Lithuania may not be treated as one granting the right to the
State to seize the aforesaid valuables from their owners
against their will and without recompense. Other civil laws,
particularising the said norm of the Constitution, establish
the right for the State to control the use and disposal of
valuables of culture. For instance, Article 158 of the Civil
Code provides for an opportunity for the State to control the
keeping of valuables of culture through respective
organisations, while in certain cases to seize them against the
will of the owner but the latter must be recompensed.
Therefore, on the grounds of the aforesaid norm of the
Constitution it is possible to give reason to seizure of
historical, archaeological and cultural items for the needs of
society (as well as not returning the said items to their
owners) but only under the laws and by fair recompense.
V
The representative of the party concerned D. Karvelis
presented these counter-arguments in the Constitutional Court
hearing.
Taking account of the public significance of movable
valuables of culture and the necessity to preserve them, the
legislator established by the Law on Museums that the fund of
State museums shall be State property and that museum valuables
kept in State depositories shall not be subject to being
returned to their former owners. The legislator grounded this
legal provision on the fact that the valuables which are at
museums may be accessible to the public at large. Not only do
the museums ensure safe-keeping and registration of the
accumulated valuables but also they investigate, preserve and
restore them.
The Law on Museums defines the fund of museums of the
Republic of Lithuania, establishes the system of museums of
Lithuania, procedure of establishment and liquidation of
museums, registration and safe-keeping of museum valuables, as
well as financing and management of museums. This law does not
regulate restoration of the rights of ownership as this is an
object of special laws. The representative of the party
concerned noted that until now a procedure for restoration of
the rights to the existing real property has been established,
however at present there is not any law on returning of movable
property.
The provision of Part 2 of Article 5 of the Law on Museums
whereby museum valuables shall not be returned to their former
owners means that such valuables are not subject to being
returned in kind, however this provision does not create legal
hindrances for the former owners to claim their rights of
ownership to museum valuables by other ways (buying out,
alternative kind, etc.).
In the opinion of the representative of the party
concerned, one has to take into consideration the common
principles established in laws on restoration of the rights of
ownership to the existing real property. These laws do not
provide for unconditional returning of property in kind to
citizens of the Republic of Lithuanian whose real property was
nationalised under the laws of the USSR (SSRL) or unlawfully
seized otherwise. In case Part 2 of Article 5 of the Law on
Museums was recognised as contradicting Article 23 of the
Constitution, unconditional returning of museum valuables in
kind to their former owners would be legitimised and there
would arise a problem of the equality of the owners of real
property and those of movable property before the law.
On the grounds of the said arguments, the representative
of the party concerned asserted that Part 2 of Article 5 of the
Law on Museums is in compliance with Article 23 of the
Constitution.
VI
The specialists G. Drėmaitė, Chairperson of the Republic
of Lithuania State Commission for Monument Preservation, and G.
Jucys, Head of the Group of Control of the aforesaid
commission, spoke at the Constitutional Court hearing. They
described actual circumstances reflecting the situation which
appeared in the course of the implementation of the norms of
the Law on Museums. In the opinion of the specialists, the
valuables of culture accumulated at the fund of State museums
should not be returned to their former owners, however laws
might regulate question of compensation for such valuables.
The Constitutional Court
holds that:
1. Part 2 of Article 5 of the 8 June 1995 Law on Museums
provides: "The fund of State museums shall be State property.
Museum valuables of this fund shall not be subject to being
returned to their former owners."
According to the definition of the museum valuable as
presented by the said law, it is a valuable item from the
standpoint of archaeology, history, ethnicity, religion,
monument preservation, or any other standpoint of culture or an
object accumulated, kept, investigated and exposed by museums.
It is to be noted that under the Law on Protection of Movable
Valuables of Culture regulating the protection of movable
valuables of culture belonging to either the State or private
individuals, safe-keeping and accumulation of movable valuables
of culture in State depositories (archives, libraries, museums)
comprise one of the basic parts in State protection of movable
valuables of culture. For this reason they are bought up,
acquired in another fashion or accepted for safe-keeping based
upon the right of deposit (Part 1 of Article 17 of the Law on
Protection of Movable Valuables of Culture).
Valuables of culture accumulated in museums are accessible
to the public at large. State museums not only ensure
registration and safe-keeping of the accumulated valuables but
they also investigate, preserve and restore them. The Law on
Museums provides for legal means of the protection of the fund
of State museums designed to implement the provision of Part 2
of Article 42 of the Constitution whereby the State shall
support culture and science, and shall be concerned with the
protection of Lithuanian history, art, and other cultural
monuments and valuables.
By the regulation established by Part 2 of Article 5 of
the Law on Museums, which is disputed by the petitioner, it is
attempted to preserve the valuables of culture accumulated at
the fund of State museums, therefore the link between the
disputed norm and the duty of the State to take care of
cultural heritage established by Article 42 of the Constitution
is evident. It needs to be noted that the Law on the Basics of
National Security denotes cultural heritage as one of the main
objects of national security.
2. The petitioner is of the opinion that Part 2 of Article
5 of the Law on Museums providing that museum valuables kept at
State museums are State property and are not subject to being
returned to their former owners denies the principle of
protection of private ownership established by Article 23 of
the Constitution.
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."
Constituting a whole, these norms of the Constitution
ensure the constitutional protection of property. The
Constitutional Court has noted 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
(Constitutional Court ruling of 27 October 1998).
The norm of the Constitution stipulating that the rights
of ownership shall be protected by law means that a legal
protection of subjective rights of ownership are guaranteed.
The subjective right of ownership is, as a rule, defined as a
legally protected opportunity of the owner to manage, use and
dispose of his property at his discretion and in his interests
provided the limits established by laws are not overstepped and
the rights and freedoms of other persons are not impaired.
However, these are not all the rights of the owner. A very
important protective function belongs to such a subjective
right of the owner as the right to claim one's property from
its unlawful management by the others.
3. It needs to be noted that a valuable of culture is both
an object of the right of ownership and public value. It is
evident that certain protection and care are needed so that the
valuable of culture might persist and satisfy the needs of
society as long as possible. Thus it is a special property item
for which a peculiar legal regulation is necessary. Such legal
regulation may cause problems of legal compatibility of private
and public interests.
Deciding the question of compliance of the disputed norms
of the Law on Museums with Article 23 of the Constitution, one
has to take account of the fact that the Constitution shall be
an integral and directly applicable statute (Part 1 of Article
6 of the Constitution). The principle of the integrity of the
Constitution determines that at the junction of the values
protected by the Constitution decisions ought to be found
ensuring that neither of these values would be denied or
unreasonably restricted.
4. In the fund of State museums there are such valuables
of culture which got into them during the time when Lithuania
was occupied, annexed and incorporated into another state-the
USSR-i.e. until 11 March 1990. The occupation government
nationalised land, banks, large items of economy, as well as in
other ways unlawfully seized items of private property, a great
many of valuables of culture among them.
After on 11 March 1990 the Supreme Council-Reconstituent
Seimas had adopted the Act on the Restoration of the
Independent State of Lithuania as well as other acts of
fundamental nature, the institution of private ownership was
restored. However, it was actually impossible completely to
restore the system of ownership relations that existed in 1940.
The massive character of violations of the rights of ownership
committed by the occupation government, the newly formed legal
relations and other objective circumstances determined that it
was impossible to protect the rights of ownership violated
during the occupation years on the grounds of the norms of the
Civil Code. The Constitutional Court has noted that until
corresponding State institutions have not adopted a decision on
restoration of the rights of ownership under the law, persons
whose property was seized during the years of occupation
actually do not enjoy the subjective rights of ownership
(Constitutional Court ruling of 27 May 1994, etc.). Thus a
special legal regulation for implementation of the restitution
was necessary. And this is a prerogative of the legislator.
For instance, on 18 June 1991 the Law "On the Procedure
and Conditions of the Restoration of Citizens' Rights of
Ownership to the Existing Real Property" was passed. This law
regulated implementation of limited restitution. Both the said
law and the Republic of Lithuania Law on the Restoration of
Citizens' Rights of Ownership to the Existing Real Property of
1 July 1997 provide for the conditions and procedure for
restoration of the rights of ownership and establish various
ways of restoration of these rights. It needs to be noted that
even though the laws give priority to returning of property in
kind, however, buying out (for respective recompense) of the
existing real property from persons whose rights of ownership
are subject to restoration are provided for, too. Under the law
of 1 July 1997, the State shall buy out land provided it is on
the territory of State wildlife reserves, national and regional
parks, that of the Curonian Spit National Park, or it has been
allotted to science and education establishments, etc.;
dwelling-houses (parts thereof), flats shall be bought out by
the State provided they have been rearranged into non-dwelling
premises and are utilised for the needs of education, health,
culture and science, as well as those of foster-homes. Such
legal regulation of restoration of the rights of ownership to
the existing real property reveals the determination of the
legislator to regulate the implementation of the restitution
only by special laws and by taking account of the needs of
society and factual economic possibilities. It must be noted
that no law on restoration of the rights of ownership to
movable property has been adopted.
5. Museum valuables are an important part of national
culture. In attempt to ensure safe-keeping of such valuables,
as is demanded by the Constitution of this country, special
legal regulation on restoration of the rights of ownership to
valuables of culture may be established. The aim of the norms
of Part 2 of Article 5 of the Law on Museums is preservation of
the accumulated valuables of culture for the posterity as loss
of any valuable on its destruction, not preservation of its
cultural value or its irretrievable taking away from Lithuania
is great damage to society.
Taking account of this as well as peculiarities of the
legal regulation which have been discussed in the present
ruling, the following conclusions are to be drawn: first, the
legislator has not provided by law for an opportunity to
restore the rights of ownership to museum valuables; second,
there are grounds to assess Part 2 of Article 5 of the Law on
Museums as a special legal regulation establishing that the
valuables of culture which are at the fund of State museums
shall not be subject to being returned to their owners who lost
them due to the universal nationalisation or any other unlawful
seizure carried out by the occupation government.
Thus, on the grounds of the arguments set forth and taking
account of the fact that no law on restoration of the rights of
ownership to museum valuables has been adopted, a conclusion is
to be drawn that Part 2 of Article 5 of the Law on Museums in
the scope whereby in case museum valuables were seized till 11
March 1990 they shall not be subject to being returned to their
former owners is in compliance with Article 23 of the
Constitution.
6. Valuables of culture may get to the fund of State
museums by different ways, and this determines the necessity of
different legal regulation. Investigating the limits of effect
of the disputed norms of the law, one is to hold that they are
valid for every person who, against his will, lost valuables of
culture and who attempts to claim them from the fund of State
museums. Thus Part 2 of Article 5 of the Law on Museums takes
account of neither the manner of acquisition of museum
valuables nor the time of such acquisition. Thus, such an
important factor is ignored that valuables of culture may have
come into the possession of the fund of State museums after the
restoration of the independent Sate of Lithuania.
As mentioned, upon restoration of the independence, the
institution of private ownership was reintroduced into the
legal system of Lithuania, therefore to protect the rights of
ownership violated after 11 March 1990, the constitutional
guarantees of protection of the rights of ownership are to be
applied in full scope. Assessing the disputed legal regulation
from this standpoint, one is to note that it, without any
reservations, prohibits to return museum valuables to their
former owners. Thus an opportunity is a priori denied to
satisfy any vindicating claim regardless of respective legal
facts, for example, such as recognition of a transaction on
acquisition of valuables of culture as null and void etc.
It is to be noted that under Part 4 of Article 47 of the
Constitution, the right of ownership of cultural facilities of
public significance shall exclusively belong to the Republic of
Lithuania. It means that the constitutional norms do not reject
an opportunity to make cultural items of national significance
State property. It goes without saying, it would depend on the
public significance and value of corresponding items, as well
as the necessity to guarantee an opportunity of its endurance
and preservation for the future generations. On the other hand,
such nationalisation of valuables of culture ought to be
carried out only pursuant to the requirements of Part 3 of
Article 23 of the Constitution.
Taking account of the arguments set forth, it is to be
concluded that Part 2 of Article 5 of the Law on Museums in the
scope whereby an opportunity is denied to protect, on the
grounds of the norms of the Civil Code, the rights of ownership
which were violated after 11 March 1990 contradict Article 23
of the Constitution.
7. The Constitutional Court notes that the analysis and
assessment of legal regulation of protection of valuables of
culture presented in the present ruling does not cover
international relations which are regulated by other
acts-bilateral or multilateral agreements of states. For
instance, the act of international law-the UNIDROIT Convention
on Stolen or Illegally Exported Cultural Objects, ratified by
Lithuania on 14 January 1997-is of such nature. Article 25 of
the Law on Museums provides that in cases when international
agreements concluded by the Republic of Lithuania provide for
different rules from those set down in this law, the rules of
the international agreement shall be applicable.
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 Part 2 of Article 5 of the Republic
of Lithuania Law on Museums in the scope whereby the museum
valuables seized in the period of the occupation (till 11 March
1990) shall not be subject to being returned to their former
owners is in compliance with the Constitution of the Republic
of Lithuania.
2. To recognise that Part 2 of Article 5 of the Republic
of Lithuania Law on Museums in the scope whereby the right is
denied to claim valuables of culture from unlawful management
by the others when they came into the possession of the fund of
State museums after 11 March 1990 contradicts Article 23 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.