Lietuviškai
{Case No. 27/01-5/02-01/03
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ARTICLE 14 OF THE REPUBLIC OF
LITHUANIA LAW "ON THE PROCEDURE AND CONDITIONS OF
RESTORATION OF THE RIGHTS OF OWNERSHIP OF CITIZENS
TO THE EXISTING REAL PROPERTY" (WORDING OF 12
JANUARY 1993), PARAGRAPH 1 OF ARTICLE 2 AND ITEM 5
OF THE SAME PARAGRAPH, ARTICLES 15, 20, AND 21 OF
THE REPUBLIC OF LITHUANIA LAW ON THE RESTORATION
OF THE RIGHTS OF OWNERSHIP OF CITIZENS TO THE
EXISTING REAL PROPERTY (WORDING OF 15 JANUARY
2002), ITEMS 2, 4, 5, AND 6 OF PARAGRAPH 1 OF
ARTICLE 15, AS WELL AS PARAGRAPHS 2 AND 4 OF THE
SAME ARTICLE, PARAGRAPH 10 OF ARTICLE 16 AND
ARTICLE 20 OF THE REPUBLIC OF LITHUANIA LAW ON THE
RESTORATION OF THE RIGHTS OF OWNERSHIP OF CITIZENS
TO THE EXISTING REAL PROPERTY WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA, AND ON
THE COMPLIANCE OF GOVERNMENT OF THE REPUBLIC OF
LITHUANIA RESOLUTION NO. 27 "ON THE BUYING OUT OF
THE RESIDENTIAL HOUSES WHICH ARE INDISPENSABLE FOR
STATE NECESSITIES" OF 17 JANUARY 1994 WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND
ARTICLE 14 OF THE REPUBLIC OF LITHUANIA LAW "ON
THE PROCEDURE AND CONDITIONS OF RESTORATION OF THE
RIGHTS OF OWNERSHIP OF CITIZENS TO THE EXISTING
REAL PROPERTY" (WORDING OF 12 JANUARY 1993)
4 March 2003
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representatives of groups of members of the Seimas of
the Republic of Lithuania, petitioners, who were Andrius
Kubilius and Raimondas Šukys, both members of the Seimas,
the representatives of the Seimas of the Republic of
Lithuania, the party concerned, who were Petras Papovas, a
member of the Seimas, Daina Petrauskaitė, senior consultant to
the Legal Department of the Office of the Seimas, Darius
Karvelis, chief specialist of the Legal Department of the
Office of the Seimas, and the representative of the Government
of the Republic of Lithuania, the party concerned, who was
Irena Sabaliūtė, Head of the Legal Division of the Legal and
Personnel Department of the Ministry of Environment of the
Republic of Lithuania,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 31
January 2003 in its public hearing heard Case No.
27/01-5/02-01/03 which originated in the following petitions:
1) the petition of the Kaunas Regional Court, a
petitioner, requesting to investigate as to whether the
provision of Article 14 of the Republic of Lithuania Law "On
the Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) under which the state is permitted to buy
out residential houses from the persons specified in Article 2
of the same law provided they are indispensable for state
necessities was not in conflict with Article 23 of the
Constitution of the Republic of Lithuania; whether the part of
Government of the Republic of Lithuania Resolution No. 27 "On
the Buying Out of the Residential Houses Which are
Indispensable for State Necessities" of 17 January 1994 whereby
it was confirmed that the residential house at Vytauto Ave. 27,
Kaunas, was indispensable for state necessities and was to be
bought out was not in conflict with Article 23 of the
Constitution of the Republic of Lithuania and the provision of
Article 14 of the Republic of Lithuania Law "On the Procedure
and Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 12 January
1993) permitting buying out of residential houses which are
indispensable for state necessities;
2) the petition of 24 January 2002 of a group of members
of the Seimas, a petitioner, requesting to investigate as to
whether Paragraph 1 of Article 1, Articles 4 and 7, and
Paragraph 2 of Article 8 of the Republic of Lithuania Law on
the Amendment and Supplement of Articles 2, 8, 12, 15, 16, 18,
20, and 21 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property, which was
adopted by the Seimas on 20 December 2001, are not in conflict
with Articles 23, 29 and 30 of the Constitution of the Republic
of Lithuania;
3) the petition of 6 January 2003 of a group of members of
the Seimas, a petitioner, requesting to investigate as to
whether the Preamble to as well as Article 15, Paragraph 10 of
Article 16 and Paragraph 3 of Article 20 of the Republic of
Lithuania Law on the Amendment and Supplement of the Preamble,
Articles 2, 12, 13, 15, 16, and 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, adopted by the Seimas on 29 October
2002, are not in conflict with Articles 23, 29 and 30 of the
Constitution of the Republic of Lithuania.
The aforesaid petitions were joined into one case by the
Constitutional Court decisions of 11 July 2002 and 24 January
2003.
The Constitutional Court
has established:
I
1. The Kaunas Regional Court, the petitioner, was
investigating an administrative case. The said court suspended
the investigation of the case by its ruling and applied to the
Constitutional Court with a petition requesting to investigate:
1) whether the provision of Article 14 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993; Official Gazette Valstybės žinios, 1993,
No. 5-83) under which the state is permitted to buy out
residential houses from the persons specified in Article 2 of
the same law provided they are indispensable for state
necessities, was not in conflict with Article 23 of the
Constitution;
2) whether Government Resolution No. 27 "On the Buying Out
of the Residential Houses Which are Indispensable for State
Necessities" of 17 January 1994 to the extent that it confirmed
that the residential house at Vytauto Ave. 27, Kaunas, was
indispensable for state necessities and was to be bought out,
was not in conflict with Article 23 of the Constitution and the
provision of Article 14 of the Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 12 January
1993) permitting buying out of residential houses which are
indispensable for state necessities.
2. On 24 January 2002, a group of members of the Seimas,
the petitioner, applied to the Constitutional Court with a
petition (hereinafter referred to as the petition of 24 January
2002) requesting to investigate as to whether Paragraph 1 of
Article 1, Articles 4 and 7, and Paragraph 2 of Article 8 of
the 20 December 2001 Law on the Amendment and Supplement of
Articles 2, 8, 12, 15, 16, 18, 20, and 21 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, are not in conflict with Articles 23,
29 and 30 of the Constitution.
3. On 6 January 2003, a group of members of the Seimas,
the petitioner, applied to the Constitutional Court with the
petition (hereinafter referred to as the petition of 6 January
2003) requesting to investigate as to whether the Preamble to
as well as Article 15, Paragraph 10 of Article 16 and Paragraph
3 of Article 20 of the Law on the Amendment and Supplement of
the Preamble, Articles 2, 12, 13, 15, 16, and 20 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, adopted by the Seimas on 29 October
2002, are not in conflict with Articles 23, 29 and 30 of the
Constitution.
II
1. The request of the Kaunas Regional Court, the
petitioner, is based on the following arguments.
1.1. Article 14 of the Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 12 January
1993) provides that residential houses shall be bought out from
the persons specified in Article 2 of this law provided they
are indispensable for state necessities. The notion "state
necessities" is not defined in the law. In the opinion of the
petitioner, state necessities are only linked with the ensuring
of functioning of the state apparatus. Therefore, the
petitioner had doubts as to the compliance of the said
provision of Article 14 of the Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 12 January
1993) with Paragraph 3 of Article 23 of the Constitution
wherein it is provided that property may only be seized for the
needs of society in accordance with the procedure established
by law and shall be justly compensated for. It is asserted in
the petition that although Paragraph 3 of Article 23 of the
Constitution regulates seizure of property from the owner,
however, the conditions under which the property is not
returned in kind and is bought out may not be in conflict with
the common constitutional principles of ownership protection
and must meet the condition of the social nature of the needs.
1.2. The petitioner points out that on 17 January 1994,
the Government, in pursuance with the provisions of Article 14
of the Law "On the Procedure and Conditions of Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property" (wording of 12 January 1993), adopted Resolution No.
27 "On the Buying Out of the Residential Houses Which are
Indispensable for State Necessities" whereby inter alia it was
confirmed that the residential house at Vytauto Ave. 27,
Kaunas, was indispensable for state necessities and was to be
bought out. At the moment of the adoption of the said
resolution, the building in question was being rented for the
editorial office of the newspaper "Kauno diena". Subsequent to
the aforementioned resolution, on 19 May 1994, the Board of
Kaunas City adopted Ordinance No. 709-v whereby this building
was transferred to the balance of the close company "Kauno
diena". Subsequently, the building, being part of the
authorised capital of the close company "Kauno diena", was
privatised by way of buying out shares. The petitioner asserts
that the society has an interest in effective activities of
independent media of public information. However, in the
opinion of the petitioner, the provision of editorial staffs of
periodicals with premises is not attributed such public
significance which would outweigh the private interest to
retrieve property. Besides, if one construes the notion "state
necessities" only as the requirements of functioning of the
state apparatus, the provision of non-state-owned periodical
with premises should not be regarded as a state necessity.
Therefore, the petitioner had doubts as to whether Government
Resolution No. 27 "On the Buying Out of the Residential Houses
Which are Indispensable for State Necessities" of 17 January
1994 to the extent that it confirmed that the residential house
at Vytauto Ave. 27, Kaunas, was indispensable for state
necessities and was to be bought out, was not in conflict with
Article 23 of the Constitution and the provision of Article 14
of the Law "On the Procedure and Conditions of Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property" (wording of 12 January 1993) permitting buying out of
residential houses which are indispensable for state
necessities.
2. The petition of 24 January 2002 of a group of members
of the Seimas, the petitioner, is grounded on the following
arguments.
2.1. After Item 5 of Paragraph 1 of Article 2 (wording of
13 May 1999) of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property had been
amended by the Law on the Amendment and Supplement of Articles
2, 8, 12, 15, 16, 18, 20, and 21 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (Paragraph 1 of Article 1), the citizens who had used
to be specified in the amended item, i.e. the citizens who had
been transferred property by house testament or agreements (of
purchase and sale, gift, or by another written document), also
the citizens, who had been bequeathed property by testament by
successors to the rights of the property, lost their rights to
restore their rights to the said property. Thus, in the opinion
of the petitioner, in regard of the aforesaid citizens the
constitutional principle of legitimate expectations as well as
Articles 23 and 29 of the Constitution were violated.
2.2. In the opinion of the petitioner, after Item 5 of
Paragraph 1 of Article 2 (wording of 13 May 1999) of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property had been amended by the Law on the
Amendment and Supplement of Articles 2, 8, 12, 15, 16, 18, 20,
and 21 of the Law on the Restoration of the Rights of Ownership
of Citizens to the Existing Real Property, and after the
provision had been established that the rights of ownership
shall be restored to the citizens whose property was not
mortgaged prior to the 15 June 1940 occupation, one
unreasonably restricted the rights of citizens to the
restoration of the rights of ownership, since the person who
has mortgaged his property does not lose the rights of
ownership to the said property. The petitioner asserts that the
aforesaid provision of the Law on the Restoration of the Rights
of Ownership of Citizens to the Existing Real Property (wording
of 15 January 2002) is in conflict with Article 23 of the
Constitution, also Article 29 of the Constitution which
establishes the principle of equality of all persons before the
law, as citizens' rights to real property had used to be
restored for 10 years regardless of whether or not it had been
mortgaged. After the disputed provision of the law (wording of
15 January 2002) had been adopted, the citizens, who, during
the 10 years had not managed to restore their rights of
ownership to the existing real property, which was mortgaged
prior to 15 June 1940, lost their right to restore their rights
of ownership.
2.3. The petitioner asserts that after Article 15 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 13 May 1999) had been
amended by Article 4 of the Law on the Amendment and Supplement
of Articles 2, 8, 12, 15, 16, 18, 20, and 21 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property and after it had been established that
residential houses, parts thereof, flats shall be bought out by
the state from the citizens specified in Article 2 of this law
and they shall be compensated under Article 16 of this law, if
tenants reside therein, also taken (seized) if the citizen had
been fully restored the rights of ownership but tenants reside
therein, a new provision was consolidated that the residential
houses, parts thereof, flats in which tenants reside are bought
out by the state so that the tenants residing in the said
houses might privatise them. The petitioner is of the opinion
that the aforementioned provisions on the alteration of the
manner of the restoration of the rights of ownership to
residential houses, parts thereof, flats in which tenants
reside violate the principle of equality of rights of persons
entrenched in Article 29 of the Constitution.
The petitioner asserts that the provision that the state
shall buy out the residential houses, parts thereof, flats
which have been returned to the owners under the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property is in conflict with Article 23 of the
Constitution, as the presence of the agreement of tenancy may
not serve as the grounds for forceful seizure of the rented
object from the owner so that the said object might be sold to
the tenant; according to the petitioner, this is not a public
need.
The petitioner is of the opinion that after the Law on the
Amendment and Supplement of Articles 2, 8, 12, 15, 16, 18, 20,
and 21 of the Law on the Restoration of the Rights of Ownership
of Citizens to the Existing Real Property has been adopted, the
rights of ownership of the owners who were returned residential
houses under the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property in case the
said residential houses, parts thereof, flats were rented, are
less protected than those of the owners of other residential
houses, parts thereof and flats. According to the petitioner,
the disputed norm of Article 15 (wording of 15 January 2002) of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property is in conflict with
Article 29 of the Constitution.
2.4. In the opinion of the petitioner, after Paragraphs
1-4 of Article 20 (wording of 13 May 1999) of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property had been recognised as no longer valid
by Paragraph 1 of Article 7 of the Law on the Amendment and
Supplement of Articles 2, 8, 12, 15, 16, 18, 20, and 21 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property, the rights of the tenants
residing in the houses that had been returned to the owners
were also violated, since the guarantees that had been
established to them had been abolished: the owners are no
longer bound by the former obligation not to evict the tenants
from the houses that had been returned to the owners until the
state did not fulfil the guarantees which had previously been
granted to them.
2.5. The petitioner asserts that the Law on the Amendment
and Supplement of Articles 2, 8, 12, 15, 16, 18, 20, and 21 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property also violates the rights
of the tenants who reside in the residential houses, parts
thereof, flats the owners of which do not wish to retrieve
them, since after Paragraph 6 of Article 20 (wording of 13 May
1999) of the Law on the Restoration of the Rights of Ownership
of Citizens to the Existing Real Property had been recognised
as no longer valid by Paragraph 3 of Article 7 of the Law on
the Amendment and Supplement of Articles 2, 8, 12, 15, 16, 18,
20, and 21 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property, the
tenants lost the right that they had used to enjoy until then
to buy out these premises under the procedure established by
the Government within 6 months of the decision on the legal
registration of the residential house, part thereof, flat under
the name of the state or the municipality in the Real Property
Register.
2.6. In the opinion of the petitioner, the amendment of
Paragraph 3 of Article 21 (wording of 15 January 2002) of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property also violates the rights of
citizens which are entrenched in the Constitution. The fact
that a decision on the restoration of the rights of ownership
has already been adopted and its implementation has begun shows
that certain legal effects have occurred (one has been
transferred gratis the ownership of property of equal value,
monetary liabilities of the citizen for the state have been
abolished by means of inclusion, all sum or part thereof has
been paid for the property bought out, etc.). Therefore, the
indicated decisions may only be abolished in court according to
the procedure established in laws. The provision of the law
that the said decisions are abolished according to the
procedure established by the Government bars the way to persons
to make use of their right to judicial protection, which is
granted to them by the Constitution. The petitioner is of the
opinion that this provision of Paragraph 3 of Article 21
(wording of 15 January 2002) of the Law on the Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property conflicts with Article 30 of the Constitution.
3. The petition of 6 January 2003 of a group of members of
the Seimas, the petitioner, is grounded on the following
arguments.
3.1. Under Article 23 of the Constitution, property shall
be inviolable; it may only be seized for the needs of society
and shall be justly compensated for. The Constitution does not
contain any provisions stipulating that property can be bought
out by the state without the consent of the owner. The notion
"bought out" as employed in the Law on the Amendment and
Supplement of the Preamble, Articles 2, 12, 13, 15, 16, and 20
of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property is synonymous to the
notion "seized". In the opinion of the petitioner, the articles
of Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 29 October
2002) which regulate the procedures of buying out of property,
when they establish neither the needs of society as the ground
for the buying out of property nor the obligation to justly
compensate for the property bought out, violate the
Constitution.
3.2. In the opinion of the petitioner, after one had
entered the provision into the Preamble of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) that these
norms of this law shall be special ones, one created
preconditions not to apply the norms of the Civil Code of the
Republic of Lithuania for the relations concerning the property
which was unlawfully seized and which is at present being
returned.
3.3. According to the petitioner, the norm of Paragraph 1
of Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) that residential houses, parts thereof, flats
shall be bought out by the state (i.e. seized) from citizens of
certain category, if one acquired the private ownership of the
said houses according to law, is incompatible with Article 29
of the Constitution.
3.4. In the opinion of the petitioner, by Item 1 of
Paragraph 1 of Article 15 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 29 October 2002) the constitutional rights of
ownership are violated, since under the norm formulated therein
it is sufficient to buy out (seize) the residential houses,
parts thereof, flats even if at least some useful floor area
(even 1 m2) has been created, or that separately created floor
area ("possible for separation"), after it has been totted up
with the previous floor area exceeds the previous floor area by
not less than 30 percent.
3.5. Items 4, 5, and 6 of Paragraph 1 of Article 15 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 29 October 2002)
indicate the tenants who "were unable to implement their right
to privatise" the property which had belonged to other persons
and which had been seized from them unlawfully. In the opinion
of the petitioner, such an alleged right to privatise private
property grossly violates Article 23 of the Constitution.
3.6. The petitioner maintains that the norm of Paragraph 2
of Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) is in conflict with Articles 23, 29 and 30 of
the Constitution, as, under the said norm, the fact of the
buying out itself is "circumvented": the decision on the
upcoming buying out is enough, and, immediately, within three
months, the owner is changed, although the property has not
been bought out. Thus, the objects that have not been bought
out are transferred to another owner on the grounds of an
obscure right. Upon the establishment of the opportunity of
extra haste procedures, the right of citizens to apply to
court, which is established in Article 30 of the Constitution,
is violated. In the opinion of the petitioner, Paragraph 2 of
Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) violates the equality of rights of citizens
and also offends against the principle of their equality
entrenched in Article 29 of the Constitution.
3.7. In the opinion of the petitioner, Paragraph 4 of
Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) restricts the right of the municipality to
freely dispose of its property after the residential houses,
parts thereof, flats have been seized (under Article 23 of the
Constitution, i.e. after it has been justly compensated for).
3.8. According to the petitioner, Item 5 of Paragraph 10
of Article 16 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) is worded ambiguously: "It is totally unclear
what one has in mind: whether the Soviet or present seizure of
real property of citizens; whether the decision on the
restoration of the rights of ownership taken upon the
restoration of the Independence, or another, subsequent
decision denying the rights of ownership that have already been
restored." In the opinion of the petitioner, "it remains
unclear in entire Paragraph 10 of Article 16 whether all seven
ways of just compensation by the state to its citizens are
presented for the owner as a choice, or whether one has in mind
that the Government 'establishes a procedure' and the choice
rests for municipalities as to what way of compensation to
force upon the owner, thus denying him any choice".
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representatives of the Seimas, the party
concerned, who were V. Stankevičius, senior consultant to the
Legal Department of the Office of the Seimas, D. Petrauskaitė,
chief consultant to the Legal Department of the Office of the
Seimas, D. Karvelis, senior consultant of the Legal Department
of the Office of the Seimas, and the representative of the
Government, the party concerned, who was I. Sabaliūtė, Head of
the Legal Division of the Legal and Personnel Department of the
Ministry of Environment.
1. The representative of the Seimas, the party concerned,
V. Stankevičius maintains in his explanations concerning the
petition of the Kaunas Regional Court that any interest of
society must inevitably become one of the state as well,
therefore the notions "needs of society" and "state
necessities" are virtually the same. The concept of state
necessities under which the content thereof is constituted by
the needs of functioning of the state apparatus (i.e. needs of
state power), in the opinion of V. Stankevičius, is indeed too
narrow: state necessities are not only the interests of state
power but also other needs of the state and society. If there
is a broader understanding of state interests, the limits
between state needs and those of society virtually disappear,
therefore there are no longer any differences in the content of
the notions "state necessities" and "needs of society".
The representative of the party concerned also notes that,
while assessing the compliance of the disputed provision of
Article 14 of the Law "On the Procedure and Conditions of
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property" (wording of 12 January 1993) with
Paragraph 3 of Article 23 of the Constitution, it is important
to take account of the legal environment which existed at the
time of the adoption of the said law, as well as the legal
conscience of society and other social, political and economic
circumstances which were influential on the legislator when he
regulated the restoration of the rights of ownership of
citizens to the existing real property. The period of the
beginning of the restoration of the State of Lithuania and
consolidation of the statehood is related with immense changes
in the restructuring of the spheres of public life, first of
all, the system of economy, in which state interests had
dominated until then. To implement these changes, the
legislator had to provide for essentially new legal regulation
and to introduce new legal notions, however, one could not
avoid using the old notions as well. In the opinion of the
representative of the party concerned, while taking account of
these circumstances, the notion "state necessities" ought to be
regarded as identical to the notion "needs of society".
According to V. Stankevičius, the legislator could not link the
buying out of property with a mere need of functioning of the
state apparatus or interests of state power, as such regulation
would not have been in line with the processes that were taking
place in society, and the consolidation of the priority of the
rights and freedoms of the human being and society.
The representative of the party concerned maintains that
the disputed provision of Article 14 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) was not in conflict with Article 23 of the
Constitution.
2. The representative of the Seimas, the party concerned,
D. Petrauskaitė points out in her explanations concerning the
petition of the Kaunas Regional Court, the petitioner, that in
the legal theory the notion of the state is directly linked
with the duties of the state towards the society. The state
implements its functions concerning the regulation of affairs
of society and guaranteeing the rights and freedoms of citizens
through various institutions: state institutions and
establishments as well as non-governmental establishments and
organisations. In the opinion of the representative of the
party concerned, it is groundless to assert that the notion
"state necessities" ought to be understood only as needs of the
state apparatus.
In the opinion of D. Petrauskaitė, while construing the
provisions of the Law "On the Procedure and Conditions of
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property" in a systematic manner, one is to draw
a conclusion that the notion "state necessities" employed in
this law is identical with the notion "needs of society".
The representative of the party concerned draws one's
attention to the fact that in the laws adopted prior to 1993,
while regulating seizure of property or establishing
restrictions of rights, it was common to employ the notions
"interests of the Republic of Lithuania", "state interests" or
"interests of the state and society". Such terminology of the
laws of that period is linked by the representative of the
party concerned with the terminology of the Provisional Basic
Law of the Republic of Lithuania (Article 46 regulating the
nationalisation, which is subject to compensation, of property
of citizens or their groups employs the notion "interests of
Lithuania" which often was identified with the notion "state
interests"). In the laws adopted after the Constitution had
come into effect, while regulating seizure of property or
restrictions of its use, one already employs the notion "needs
of society".
D. Petrauskaitė notes that the fact alone that property is
seized so that it might be transferred to a non-governmental
establishment or organisation does not mean that there is not a
need of society to seize such property. In the opinion of D.
Petrauskaitė, provision of a non-state-owned periodical with
premises in an attempt to guarantee the freedom of expression
may be recognised as a need of society, however, it is
important that in a particular case the balance between the
interest of the society and the protection of the rights of
ownership be not violated.
In the opinion of the representative of the party
concerned, the disputed provision of Article 14 of the Law "On
the Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) was not in conflict with Article 23 of the
Constitution.
D. Petrauskaitė also maintains that the disputed provision
of Government Resolution No. 27 "On the Buying Out of the
Residential Houses Which are Indispensable for State
Necessities" of 17 January 1994 is not in conflict with Article
23 of the Constitution and the provision of Article 14 of the
Law "On the Procedure and Conditions of Restoration of the
Rights of Ownership of Citizens to the Existing Real Property"
(wording of 12 January 1993) permitting buying out of
residential houses which are indispensable for state
necessities, if, at the time of the adoption of the resolution
there was not any opportunity to apply other measures to reach
the purpose corresponding with the interests of society or, if
in the course of the application of other measures the balance
between the interests of society and private interests would
have been disturbed to a greater degree than in the case of
compensated seizure of the building for state necessities.
3. It is noted in the explanations of the representative
of the party concerned, the Government, I. Sabaliūtė, that the
Government, while adopting Resolution No. 27 "On the Buying Out
of the Residential Houses Which are Indispensable for State
Necessities" of 17 January 1994, was discharging functions of
state power and had the right to decide the issue whether a
particular building was necessary for the state. The
representative of the party concerned asserts that the
necessities of the state coincide with needs of society, since
under the Constitution, the state is created by the Nation
which enjoys the supreme sovereign power, while state
institutions, while serving the people, must take into
consideration the needs of society and its will, as well as
follow the constitutional provisions and valid legal acts.
In the opinion of I. Sabaliūtė, the Government, while
adopting Resolution No. 27 "On the Buying Out of the
Residential Houses Which are Indispensable for State
Necessities" of 17 January 1994, was following the requirements
of the law, therefore, the disputed provision of the said
resolution is not in conflict with Article 23 of the
Constitution and the provision of Article 14 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) permitting buying out of residential houses
which are indispensable for state necessities.
4. The representative of the party concerned, the Seimas,
D. Karvelis, maintains in his explanations concerning the
petition of 24 January 2002 of the petitioner, a group of
members of the Seimas, that by Paragraph 1 of Article 1 of the
Law on the Amendment and Supplement of Articles 2, 8, 12, 15,
16, 18, 20, and 21 of the Law on the Restoration of the Rights
of Ownership of Citizens to the Existing Real Property the
Seimas amended Item 5 of Paragraph 1 of Article 2 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (13 May 1999) and, from the list of
citizens entitled to restore their rights of ownership, deleted
the citizens who had been transferred property by testament
(house testament) or agreements while disregarding the form and
procedure established by the law, as well as the citizens who
had been bequeathed property by testament by successors to the
rights of the property. Both the Civil Code (Article 255) which
was in force earlier and the new Civil Code (Article 1.74)
provide for the mandatory notarial form for transactions of
transfer of an immovable item and of the tangible rights to the
item. Therefore, the transactions concluded prior to and after
7 July 2001, while disregarding the established form, are held
invalid. Paragraph 4 of Article 1.93 of the new Civil Code
points out only one exception under which a court may recognise
a transaction, which needs confirmation by a notary, as valid.
Therefore, the persons who were transferred real property by a
transaction which had not been confirmed by a notary did not
and do not acquire the right of ownership to this property, as
this would be in conflict with civil substantive law. The
existence of such an agreement or testament may only be one of
the legal means for averment in the restoration of the rights
of ownership.
In the opinion of D. Karvelis, the disputed provisions of
the articles (wording of 15 January 2002) of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property which abolished the right of the
citizens to restore their rights of ownership, who were
transferred property by transactions that disregard the form or
procedure of conclusion established by the law, are not in
conflict with Article 29 of the Constitution.
The representative of the party concerned maintains that
when the state does not have opportunities to ensure the rights
and interests of the tenants who live in the houses subject to
being returned, one can consider their needs to be needs of
society. D. Karvelis assumes that the norms of Items 2 and 3 of
Paragraph 2 of Article 15 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 15 January 2002) establish seizure of property for
the needs of society.
In the opinion of the representative of the party
concerned, the statement of the petitioner that, under the
disputed provisions of the articles of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002), the state
acquires the right to buy residential houses, parts thereof,
flats from the owners even in cases when the agreement of
tenancy was concluded after the residential houses had been
returned to their legitimate owners, also the statement that
the persons have been barred from an opportunity to make use of
their right to judicial defence, granted to them by the
Constitution, are groundless.
5. The representative of the party concerned, the Seimas,
D. Karvelis asserts in his explanations concerning the petition
of 6 January 2003 of the petitioner, a group of members of the
Seimas, that the establishment of the procedure and conditions
of restoration of the rights of ownership is within the
discretion of the legislator.
In the opinion of the representative of the party
concerned, the rights of ownership of the citizens from whom
property is bought out, who are indicated in Items 4, 5, and 6
of Paragraph 1 of Article 15 of the Law on the Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property, may be protected only after they have been restored,
as until then the persons indicated in the said items do not
acquire subjective rights of ownership. The representative of
the party concerned assumes that Items 1 and 2 of Paragraph 1
of Article 15 (wording of 29 October 2002) of the
aforementioned law not only are not in violation with the
Constitution but their provisions attempt to protect the rights
of ownership of persons. D. Karvelis notes that the legislator,
while establishing that residential houses, parts thereof,
flats may be bought out from citizens, attempted to defend the
interests of the tenants, i.e. the interests of part of
society, who reside in the houses, parts thereof, flats that
are subject to being returned. The interests of the said
tenants are interests of the entire society. Therefore, in the
opinion of D. Karvelis, Article 15 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) is not in
conflict with the Constitution.
IV
In the course of the preparation of the case for the
judicial investigation, written explanations were received from
V. Markevičius, Minister of Justice of the Republic of
Lithuania, J. Laiconas, Secretary of the Ministry of
Environment, Prof. T. Birmontienė, Head of the Department of
Constitutional Law of the Faculty of Law, the Law University of
Lithuania, Assoc. Prof. V. Pakalniškis who works at the
Department of Civil and Commercial Law of the same faculty,
Assoc. Prof. A. Vileita who works at the Department of Civil
Law and Procedure of the Faculty of Law, Vilnius University, M.
Vitkauskas, Chairman of the Lithuanian Union of Owners of
Houses and Land Plots, H. Kebeikis, Chairman of the Kaunas
Committee for Protection of the Rights of Residents in the
Houses to be Returned, M. D. Mrazauskienė, Chairwoman of the
Association of the Future Homeless.
V
1. At the Constitutional Court hearing, the
representatives of the petitioners, groups of members of the
Seimas, who were A. Kubilius and R. Šukys, virtually reiterated
their arguments set forth in the petitions.
2. At the Constitutional Court hearing, the
representatives of the party concerned, the Seimas, who were P.
Papovas, D. Karvelis, D. Petrauskaitė virtually reiterated the
arguments set forth in the written explanations of the
representatives of the party concerned, the Seimas; the
representative of the party concerned, the Government, who was
I. Sabaliūtė, virtually reiterated the arguments set forth in
her written explanations.
3. The following witnesses were interrogated at the
Constitutional Court hearing: Violeta Anankienė, Romualdas
Baltrušis, Antanas Janickas, Alfonsas Steponas Kleiza, Vytautas
Landsbergis, Vita Lesauskaitė, Kęstutis Mozeris, Marija
Danguolė Mrazauskienė, Arminas Ragauskas, Pranas Stankevičius,
Vytautas Valunta, Mykolas Vitkauskas, Valerija Vitkauskienė,
and Sofija Zailskaitė.
The Constitutional Court
holds that:
I
1. The petitioner, the Kaunas Regional Court, requests to
investigate
1) whether the provision of Article 14 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) under which the state is permitted to buy
out residential houses from the persons specified in Article 2
of the same law provided they are indispensable for state
necessities was not in conflict with Article 23 of the
Constitution;
2) whether Government Resolution No. 27 "On the Buying Out
of the Residential Houses Which are Indispensable for State
Necessities" of 17 January 1994 to the extent that it was
confirmed that the residential house at Vytauto Ave. 27,
Kaunas, was indispensable for state necessities and was to be
bought out, is not in conflict with Article 23 of the
Constitution and the provision of Article 14 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) permitting buying out of residential houses
which are indispensable for state necessities.
The petitioner, a group of Seimas members, requests in its
petition of 24 January 2002 to investigate as to whether
Paragraph 1 of Article 1, Articles 4 and 7, and Paragraph 2 of
Article 8 of the Law on the Amendment and Supplement of
Articles 2, 8, 12, 15, 16, 18, 20, and 21 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, which was adopted by the Seimas on 20
December 2001, are not in conflict with Articles 23, 29 and 30
of the Constitution.
The petitioner, a group of Seimas members, requests in its
petition of 6 January 2003 to investigate as to whether the
Preamble to as well as Article 15, Paragraph 10 of Article 16
and Paragraph 3 of Article 20 of the Law on the Amendment and
Supplement of the Preamble, Articles 2, 12, 13, 15, 16, and 20
of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property, adopted by the Seimas
on 29 October 2002, are not in conflict with Articles 23, 29
and 30 of the Constitution.
2. The petitioner, the Kaunas Regional Court, requests to
investigate whether the provision of Article 14 of the Law "On
the Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) under which the state is permitted to buy
out residential houses from the persons specified in Article 2
of the same law provided they are indispensable for state
necessities was not in conflict with Article 23 of the
Constitution.
On 3 July 1995, the Seimas adopted the Republic of
Lithuania Law "On the Amendment and Supplement of the Republic
of Lithuania Law 'On the Procedure and Conditions of
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property'", whereby Article 14 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) was recognised as no longer valid.
Under Paragraph 4 of Article 69 of the Law on the
Constitutional Court, the annulment of a disputable legal act
shall be grounds to adopt a decision to dismiss the initiated
legal proceedings.
Under the Constitution, it is only the Constitutional
Court that decides whether the laws and other acts of the
Seimas are not in conflict with the Constitution and whether
acts of the President of the Republic and the Government are
not in conflict with the Constitution or laws (Paragraph 1 of
Article 102). It is impossible to construe the provisions of
Paragraph 4 of Article 69 of the Law on the Constitutional
Court while not taking account of the provisions of Article 110
of the Constitution. Paragraph 1 of Article 110 of the
Constitution provides that a judge may not apply a law, which
is in conflict with the Constitution. Under Paragraph 2 of
Article 110 of the Constitution, in cases when there are
grounds to believe that the law or other legal act applicable
in a concrete case is in conflict with the Constitution, the
judge shall suspend the consideration of the case and shall
apply to the Constitutional Court requesting it to decide
whether the law or other legal act in question is in compliance
with the Constitution.
In its ruling of 21 August 2002, the Constitutional Court
held that the formula "shall be grounds to adopt a decision to
dismiss the initiated legal proceedings" employed in Paragraph
4 of Article 69 of the Law on the Constitutional Court is to be
construed as establishing the right to the Constitutional
Court, in cases when not courts but the other entities pointed
out in Article 106 of the Constitution applied to the
Constitutional Court, while taking account of the circumstances
of the case, to dismiss the initiated legal proceedings, but
not as establishing that in every case when the disputed legal
act was annulled the instituted legal proceedings must be
dismissed. Under the Constitution, in the cases when a court
investigating a case applies to the Constitutional Court after
it has had doubts concerning the compliance of a law applicable
in the case with the Constitution, also concerning the
compliance of an act adopted by the Seimas, or an act of the
President of the Republic or the Government with the
Constitution or laws, the Constitutional Court has a duty to
investigate the request of the court regardless of the fact
whether or not the disputed law or other legal is valid
(Constitutional Court ruling of 21 August 2002).
It needs to be noted that after the Kaunas Regional Court,
the petitioner, had applied with the petition to investigate
whether the provision of Article 14 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) under which the state is permitted to buy
out residential houses provided they are indispensable for
state necessities was not in conflict with Article 23 of the
Constitution, while if the Constitutional Court did not decide
this issue in essence, the doubts the Kaunas Regional Court
whether the disputed norm of the law was not in conflict with
the Constitution would not be removed, and, if such a law were
applied, the constitutional rights of persons might be
violated.
Taking account of this, the Constitutional Court will
investigate whether the provision of Article 14 of the Law "On
the Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) under which the state is permitted to buy
out residential houses provided they are indispensable for
state necessities was not in conflict with Article 23 of the
Constitution.
3. The petitioner, a group of members of the Seimas, in
its petition of 24 January 2002 requests to investigate whether
Paragraph 1 of Article 1, Articles 4 and 7, and Paragraph 2 of
Article 8 of the Law on the Amendment and Supplement of
Articles 2, 8, 12, 15, 16, 18, 20, and 21 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, which was adopted on 20 December 2001,
are not in conflict with Articles 23, 29 and 30 of the
Constitution.
It needs to be noted that the President of the Republic
did not sign the Law on the Amendment and Supplement of
Articles 2, 8, 12, 15, 16, 18, 20, and 21 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, which was adopted by the Seimas on 20
December 2001 and by his Decree of 22 December 2001 referred
this law back to the Seimas for a repeated consideration. Upon
the repeated consideration, the Seimas adopted the Law on the
Amendment and Supplement of Articles 2, 8, 12, 15, 16, 18, 20,
and 21 of the Law on the Restoration of the Rights of Ownership
of Citizens to the Existing Real Property on 15 January 2002.
It is clear from the petition of the petitioner that he
disputes the compliance of not the 20 December 2001 Law on the
Amendment and Supplement of Articles 2, 8, 12, 15, 16, 18, 20,
and 21 of the Law on the Restoration of the Rights of Ownership
of Citizens to the Existing Real Property, but that of
Paragraph 1 of Article 1, Articles 4 and 7 and Paragraph 2 of
Article 8 of the 15 January 2002 Law on the Amendment and
Supplement of Articles 2, 8, 12, 15, 16, 18, 20, and 21 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property with the Constitution.
4. The petitioner, a group of members of the Seimas, in
its petition of 24 January 2002 requests to investigate whether
Paragraph 1 of Article 1, Articles 4 and 7 and Paragraph 2 of
Article 8 of the 15 January 2002 Law on the Amendment and
Supplement of Articles 2, 8, 12, 15, 16, 18, 20, and 21 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property are not in conflict with the
Constitution.
By disputed Paragraph 1 of Article 1 of the aforementioned
law, one amended Item 5 of Paragraph 1 of Article 2 of the Law
on the Restoration of the Rights of Ownership of Citizens to
the Existing Real Property (wording of 1 July 1997); by
disputed Article 4 of the law, one amended and supplemented
Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
13 May 1999); by disputed Article 7 of the law, one amended
Article 20 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
13 May 1999); by disputed Paragraph 2 of Article 8 of the law,
one amended Paragraph 3 of Article 21 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 13 May 1999).
Thus, the petitioner, a group of members of the Seimas, in
its petition of 24 January 2002 requests to investigate whether
Item 5 of Paragraph 1 of Article 2, Article 15, Article 20 and
Paragraph 3 of Article 21 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 15 January 2002) are not in conflict with the
Constitution.
5. Although the petitioner, a group of members of the
Seimas, in its petition of 24 January 2002 requests to
investigate whether Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 1999) to the
extent that it no longer contains the norm which used to be in
Item 5 of Paragraph 1 of Article 2 (wording of 13 May 1999) of
the said law, under which it used to be established that the
rights of ownership to the real property specified in Article 3
of this law were to be restored to the citizens of the Republic
of Lithuania to whom the property had been transferred by
testament (house testament) or agreements (of purchase and
sale, gift, or by another written document) while disregarding
the form and procedure established by the law, also the
citizens, who had been bequeathed property by testament by
successors to the rights of the property is not in conflict
with Articles 23, 29 and 30 of the Constitution, however, from
the arguments pointed out in the petition, it is clear that the
petitioner doubts whether the non-establishment of the
aforesaid norm in Paragraph 1 of Article 2 (wording of 15
January 2002) of the said law is not in conflict with the
constitutional principle of protection of legitimate
expectations, Articles 23 and 29 of the Constitution.
Since the principle of protection of legitimate
expectations is one of essential elements of the constitutional
principle of a state under the rule of law (Constitutional
Court ruling of 18 December 2001), subsequent to the petition
of 24 January 2002 of the petitioner, a group of members of the
Seimas, the Constitutional Court will investigate whether
Paragraph 1 of Article 2 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 15 January 2002) to the extent that it no longer
contains the norm which used to be in Item 5 of Paragraph 1 of
Article 2 (wording of 13 May 1999) of the said law, under which
it used to be established that the rights of ownership to the
real property specified in Article 3 of this law were to be
restored to the citizens of the Republic of Lithuania to whom
the property had been transferred by testament (house
testament) or agreements (of purchase and sale, gift, or by
another written document) while disregarding the form and
procedure established by the law, also the citizens, who had
been bequeathed property by testament by successors to the
rights of the property is not in conflict with the
constitutional principle of a state under the rule of law.
6. The petitioner, a group of members of the Seimas, in
its petition of 24 January 2002 requests to investigate whether
Item 5 of Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) is not in
conflict with Articles 23, 29, and 30 of the Constitution.
Although the petitioner, a group of members of the Seimas,
in its petition of 24 January 2002 requests to investigate
whether Item 5 of Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) is not in
conflict with Articles 23, 29, and 30 of the Constitution, it
is clear from the petition of the petitioner that the
petitioner requests to investigate whether Item 5 of Paragraph
1 of Article 2 of the said law is not in conflict with Articles
23 and 29 of the Constitution.
By Article 2 of the Law on the Amendment and Supplement of
the Preamble, Articles 2, 12, 13, 15, 16, and 20 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property Item 5 of Article 1 of Article 2 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 15 January 2002) was
recognised as no longer valid.
It has been mentioned that in cases when not courts but
other entities indicated in Article 106 of the Constitution
applied to the Constitutional Court, the Constitutional Court
dismisses the legal proceedings, while taking account of the
circumstances of the case, however, it must not necessarily
dismiss the initiated legal proceedings in every case, when the
disputed legal act has been abolished.
Taking account of the circumstances of the case, the
Constitutional Court will investigate whether Item 5 of Article
1 of Article 2 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
15 January 2002) was not in conflict with Articles 23 and 29 of
the Constitution.
7. Although the petitioner, a group of members of the
Seimas, in the petition of 24 January 2002 requests to
investigate the compliance of entire Article 15 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) with
Articles 23, 29 and 30 of the Constitution, however, it is
clear from the petition of the petitioner that the petitioner
does not doubt concerning the compliance of entire Article 15
of the said law with the aforementioned articles of the
Constitution but whether the following provisions of Paragraph
2 of Article 15 of the aforementioned law (wording of 15
January 2002) are not in conflict with Articles 23 and 29 of
the Constitution:
"Residential houses, parts thereof, flats shall be seized
from the citizens specified in Article 2 of this Law, save
those specified in Paragraph 1 of Article 20, for the needs of
society and they shall be compensated under Article 16 of this
Law, if: <...>
2) the citizens have been restored the rights of ownership
to the residential houses, parts thereof, flats subject to
being returned in kind, in which the tenants reside, who were
unable to implement their right to privatise them, when the
citizens have been returned parts of the houses in kind, in
which they reside, or they have acquired the ownership of
certain premises privatised under the Law on Privatisation of
Flats;
3) the tenants reside therein, who were unable to
implement their right to privatise them, when the citizens have
been returned parts of the houses in kind, in which they
reside, or they have acquired the ownership of certain premises
privatised under the Law on Privatisation of Flats."
8. Although the petitioner, a group of members of the
Seimas, in the petition of 24 January 2002 requests to
investigate the compliance of entire Article 20 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) with
Articles 23, 29 and 30 of the Constitution, however, it is
clear from the petition of the petitioner that the petitioner
doubts whether Article 20 of the law to the extent that this
article no longer contains the provision "until that time the
owner shall be prohibited <...> from evicting the tenants"
which used to be in Paragraph 1 of the same article (wording of
13 May 1999) and the provision "the tenants who continue to
reside in the residential houses, parts thereof, flats the
owners of which do not wish to retrieve them, shall acquire the
right to buy out these premises" which used to be in Paragraph
6 of the same article (wording of 13 May 1999) are not in
conflict with Article 29 of the Constitution.
By Article 7 of the Law on the Amendment and Supplement of
the Preamble, Articles 2, 12, 13, 15, 16, and 20 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, adopted by the Seimas on 29 October
2002, one amended Article 20 of the Law on the Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property (wording of 15 January 2002): it was inter alia
supplemented with the provision that "the tenants who continue
to reside in the residential houses, parts thereof, flats the
owners of which do not wish to retrieve them as well as the
tenants who reside in the residential houses, parts thereof,
flats subject to being bought out by the state shall acquire
the right to buy out the said premises under preferential
conditions according to the procedure established by the
Government after the legal registration of the residential
house, part thereof, flat under the name of the state or the
municipality in the Real Property Register".
It has been mentioned that in the cases when not courts
but other entities indicated in Article 106 of the Constitution
applied to the Constitutional Court, the Constitutional Court
dismisses the legal proceedings, while taking account of the
circumstances of the case, however, it must not necessarily
dismiss the initiated legal proceedings in every case, when the
disputed legal act has been abolished. This can also be said as
regards the cases when the disputed legal act (part thereof) is
not abolished, however the legal regulation established therein
is changed.
Taking account of the circumstances of the case, the
Constitutional Court will investigate whether Article 20 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 15 January 2002) to
the extent that this article no longer contains the provision
"until that time the owner shall be prohibited <...> from
evicting the tenants" which used to be in Paragraph 1 of the
same article (wording of 13 May 1999) and the provision "the
tenants who continue to reside in the residential houses, parts
thereof, flats the owners of which do not wish to retrieve
them, shall acquire the right to buy out these premises" which
used to be in Paragraph 6 of the same article (wording of 13
May 1999) are not in conflict with Article 29 of the
Constitution.
9. Although the petitioner, a group of members of the
Seimas, in the petition of 24 January 2002 requests to
investigate the compliance of entire Paragraph 3 of Article 21
of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002) with Articles 23, 29 and 30 of the Constitution, however,
it is clear from the petition of the petitioner that the
petitioner doubts whether the provision "if the implementation
of the decision has begun, it may be abolished by the procedure
established by the Government" of Paragraph 3 of Article 21 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002) is not in conflict with Paragraph 1 of Article 30 of the
Constitution.
10. The petitioner, a group of members of the Seimas, in
the petition of 6 January 2003 requests to investigate whether
the Preamble to as well as Article 15, Paragraph 10 of Article
16 and Paragraph 3 of Article 20 of the Law on the Amendment
and Supplement of the Preamble, Articles 2, 12, 13, 15, 16, and
20 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property, adopted by the Seimas
on 29 October 2002, are not in conflict with Articles 23, 29
and 30 of the Constitution.
It is clear from the reasoning of the petitioner that he
does not dispute the compliance of the Preamble to as well as
Article 15, Paragraph 10 of Article 16 and Paragraph 3 of
Article 20 of the 29 October 2002 Law on the Amendment and
Supplement of the Preamble, Articles 2, 12, 13, 15, 16, and 20
of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property, but Preamble to as well
as Article 15, Paragraph 10 of Article 16 and Paragraph 3 of
Article 20 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) with the Constitution.
11. The petitioner, a group of members of the Seimas, in
the petition of 6 January 2003 requests to investigate whether
the provision "the special legal norms of this Law shall
regulate the legal relations of the restoration of the rights
of ownership to the existing real property" of the Preamble of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 29 October
2002) is not in conflict with the Constitution.
The petition presents the arguments concerning only the
relation of the said provision with the Civil Code. The
petition does not present any arguments upon which the
petitioner grounds his doubts as to the compliance of the said
provision of the Preamble with the Constitution.
Under the Constitution, the Constitutional Court shall
consider whether the laws of and other acts adopted by the
Seimas are not in conflict with the Constitution, also if acts
of the President of the Republic and acts of the Government are
not in conflict with the Constitution (Paragraphs 1 and 2 of
Article 105 of the Constitution). Thus, under the Constitution,
the Constitutional Court does not consider whether a certain
law is in compliance with another law (Constitutional Court
ruling of 2 April 2001). Petitions requesting to investigate
whether a certain law is in compliance with another law are not
in charge (outside the jurisdiction) of the Constitutional
Court.
Item 2 of Paragraph 1 of Article 69 of the Law on the
Constitutional Court provides that by a decision, the
Constitutional Court shall refuse to consider petitions to
investigate the compliance of a legal act with the Constitution
if the consideration of the petition does not fall under the
jurisdiction of the Constitutional Court. Paragraph 3 of
Article 69 of the Law on the Constitutional Court provides that
in the event that the grounds for refusal to consider a
petition have been established after the commencement of the
investigation of the case during the hearing of the
Constitutional Court, a decision to dismiss the case shall be
adopted.
Conforming to Item 2 of Paragraph 1 of Article 69 and
Paragraph 3 of Article 69 of the Law on the Constitutional
Court, the case in the part concerning the compliance of the
provision "the special legal norms of this Law shall regulate
the legal relations of the restoration of the rights of
ownership to the existing real property" of the Preamble of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 29 October 2002) with
the Constitution is to be dismissed.
12. Although the petitioner, a group of members of the
Seimas, in the petition of 6 January 2003 requests to
investigate whether entire Article 15 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) is not in
conflict with Articles 23, 29, and 30 of the Constitution,
however, it is clear from the arguments of the petition that
the petitioner requests to investigate whether Item 1 of
Paragraph 1 of Article 15 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 29 October 2002) is not in conflict with Article 23
of the Constitution, whether Item 2 of Paragraph 1 of Article
15 (wording of 29 October 2002) is not in conflict with Article
29 of the Constitution, whether Items 4, 5, and 6 of Paragraph
1 of Article 15 (wording of 29 October 2002) are not in
conflict with Article 23 of the Constitution, whether Paragraph
2 of Article 15 (wording of 29 October 2002) is not in conflict
with Articles 23, 29 and Paragraph 1 of Article 30 of the
Constitution, as well as whether Paragraph 4 of Article 15
(wording of 29 October 2002) is not in conflict with Article 23
of the Constitution.
13. The petitioner, a group of members of the Seimas, in
the petition of 6 January 2003 requests to investigate whether
Item 1 of Paragraph 1 of Article 15 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) is not in
conflict with Article 23 of the Constitution. The reasons of
the petitioner for this request are that Item 1 of Paragraph 1
of Article 15 of the law (wording of 29 October 2002) "is
directed to violation of constitutional rights of ownership by
means of as many as possible of cavils, practically as in a
totalitarian society".
The aforesaid arguments are not legal ones.
Under Item 5 of Paragraph 1 of Article 69 of the Law on
the Constitutional Court, by a decision, the Constitutional
Court shall refuse to consider petitions to investigate the
compliance of a legal act with the Constitution, if the
petition is grounded on non-legal arguments.
Paragraph 3 of Article 69 of the Law on the Constitutional
Court provides that in the event that the grounds for refusal
to consider a petition have been established after the
commencement of the investigation of the case during the
hearing of the Constitutional Court, a decision to dismiss the
case shall be adopted.
Conforming to Item 3 of Paragraph 1 of Article 69 and
Paragraph 3 of Article 69 of the Law on the Constitutional
Court, the case in the part concerning the compliance of Item 1
of Paragraph 1 of Article 15 of the Law on the Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property (wording of 29 October 2002) with the Constitution is
to be dismissed.
14. Although the petitioner, a group of members of the
Seimas, in the petition of 6 January 2003 requests to
investigate whether Paragraph 10 of Article 16 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) is not in
conflict with Articles 23, 29, and 30 of the Constitution,
however, it is clear from the arguments of the petition that
the petitioner doubts whether Paragraph 10 of Article 16 of the
same law (wording of 29 October 2002) is not in conflict with
Article 23 of the Constitution.
15. Although the petitioner, a group of members of the
Seimas, in the petition of 6 January 2003 requests to
investigate whether Paragraph 3 of Article 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) is not in
conflict with Articles 23, 29, and 30 of the Constitution,
however, it is clear from the arguments of the petition that
the petitioner doubts not as to the compliance of entire
Paragraph 3 of Article 20 of the said law (wording of 29
October 2002) with the aforementioned articles of the
Constitution, but whether the provision "the tenants who reside
in the residential houses, parts thereof, flats subject to
being bought out by the state shall acquire the right to buy
out the said premises under preferential conditions according
to the procedure established by the Government after the legal
registration of the residential house, part thereof, flat under
the name of the state or the municipality in the Real Property
Register" of Paragraph 3 of Article 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) is not in
conflict with Articles 23, 29, and Paragraph 1 of Article 30 of
the Constitution.
16. Subsequent to the petitions of the petitioners, the
Constitutional Court will investigate:
whether the provision of Article 14 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) under which the state is permitted to buy
out residential houses from the persons specified in Article 2
of this law provided they are indispensable for state
necessities was not in conflict with Article 23 of the
Constitution;
whether Government Resolution No. 27 "On the Buying Out of
the Residential Houses Which are Indispensable for State
Necessities" of 17 January 1994 whereby it was confirmed that
the residential house at Vytauto Ave. 27, Kaunas, was
indispensable for state necessities and was to be bought out
was not in conflict with Article 23 of the Constitution and the
provision of Article 14 of the Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 12 January
1993) permitting buying out of residential houses which are
indispensable for state necessities;
whether Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) to the
extent that it no longer contains the norm which used to be in
Item 5 of Paragraph 1 of Article 2 of the said law (wording of
13 May 1999), under which it used to be established that the
rights of ownership to the real property specified in Article 3
of this law were to be restored to the citizens of the Republic
of Lithuania to whom the property had been transferred by
testament (house testament) or agreements (of purchase and
sale, gift, or by another written document) while disregarding
the form and procedure established by the law, also the
citizens, who had been bequeathed property by testament by
successors to the rights of the property is not in conflict
with Articles 23 and 29 of the Constitution and the
constitutional principle of a state under the rule of law;
whether Item 5 of Paragraph 1 of Article 2 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) is not in
conflict with Articles 23 and 29 of the Constitution;
whether the following provisions of Paragraph 2 of Article
15 of the aforementioned law (wording of 15 January 2002) are
not in conflict with Articles 23 and 29 of the Constitution:
"Residential houses, parts thereof, flats shall be seized
from the citizens specified in Article 2 of this Law, save
those specified in Paragraph 1 of Article 20, for the needs of
society and they shall be compensated under Article 16 of this
Law, if: <...>
2) the citizens have been restored the rights of ownership
to the residential houses, parts thereof, flats subject to
being returned in kind, in which the tenants reside, who were
unable to implement their right to privatise them, when the
citizens have been returned parts of the houses in kind, in
which they reside, or they have acquired the ownership of
certain premises privatised under the Law on Privatisation of
Flats;
3) the tenants reside therein, who were unable to
implement their right to privatise them, when the citizens have
been returned parts of the houses in kind, in which they
reside, or they have acquired the ownership of certain premises
privatised under the Law on Privatisation of Flats."
whether Article 20 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 15 January 2002) to the extent that this article no
longer contains the provision "until that time the owner shall
be prohibited <...> from evicting the tenants" which used to be
in Paragraph 1 of the same article (wording of 13 May 1999) is
not in conflict with Article 29 of the Constitution;
whether Article 20 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 15 January 2002) to the extent that this article no
longer contains the provision "the tenants who continue to
reside in the residential houses, parts thereof, flats the
owners of which do not wish to retrieve them, shall acquire the
right to buy out these premises" which used to be in Paragraph
6 of the same article (wording of 13 May 1999) is not in
conflict with Article 29 of the Constitution;
whether the provision "if the implementation of the
decision has begun, it may be abolished by the procedure
established by the Government" of Paragraph 3 of Article 21 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002) is not in conflict with Paragraph 1 of Article 30 of the
Constitution;
whether Item 2 of Paragraph 1 of Article 15 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) is not in
conflict with Article 29 of the Constitution;
whether Items 4, 5, and 6 of Paragraph 1 of Article 15 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 29 October
2002) are not in conflict with Article 29 of the Constitution;
whether Paragraph 2 of Article 15 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) is not in
conflict with Articles 23, 29 and Paragraph 1 of Article 30 of
the Constitution;
whether Paragraph 4 of Article 15 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) is not in
conflict with Article 23 of the Constitution;
whether Paragraph 10 of Article 16 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) is not in
conflict with Article 23 of the Constitution;
whether the provision "the tenants who reside in the
residential houses, parts thereof, flats subject to being
bought out by the state shall acquire the right to buy out the
said premises under preferential conditions according to the
procedure established by the Government after the legal
registration of the residential house, part thereof, flat under
the name of the state or the municipality in the Real Property
Register" of Paragraph 3 of Article 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) is not in
conflict with Articles 23, 29, and Paragraph 1 of Article 30 of
the Constitution.
II
1. After the occupation government had carried out
nationalisation in 1940 and later as well as after private
property had been disseized in other unlawful ways, the innate
human right to possess private property was denied. Residential
houses were also nationalised and otherwise unlawfully
disseized, while their premises were attributed to the state,
public housing stock.
On the basis of such arbitrary acts of the occupation
government, lawful state or public property could not appear
and it did not appear, since no right can appear on the grounds
of unlawfulness. In its ruling of 27 May 1994, the
Constitutional Court held that "property taken from people in
such a way, may be considered as property which is only
factually managed by the state".
2. In the 11 March 1990 Act "On the Restoration of the
Independent State of Lithuania", the State of Lithuania
emphasised its adherence to the generally recognised principles
of international law, and guaranteed the rights of the human
being and citizen.
3. On 15 November 1990, while recognising the succession
and restoration of rights of ownership, the Supreme Council
adopted a principle decision and confirmed these provisions:
succession of the rights of ownership of citizens of Lithuania
is unquestionably recognised; citizens of Lithuania have the
right to retrieve in kind, within the limits and procedure
defined by the law, the property that belonged to them, while
in the absence of an opportunity to retrieve it, to be
compensated for.
4. It was impossible to restore by means of the laws valid
at that time the rights of ownership which had been violated by
unlawfully disseizing private property. For this, it was
necessary to establish a special (ad hoc) legal regulation.
5. While regulating, by laws, the restoration of the
rights of ownership which had been denied, one had to take
account of the fact that during the occupation years different
property, social and economic relations of people appeared,
there occurred other objective circumstances due to which it
was impossible to completely restore the rights of ownership
(to go back to the initial situation).
6. On 18 June 1991, the Supreme Council adopted the Law
"On the Restoration of the Rights of Ownership of Citizens to
the Existing Real Property", in which it was provided as to
what persons, what property and under what conditions the
rights of ownership were to be restored. It is clear from the
legal regulation established in this law that one chose limited
restitution but not restitutio in integrum.
7. The 18 June 1991 Law "On the Restoration of the Rights
of Ownership of Citizens to the Existing Real Property" went
into effect on 1 August 1991. It needs to be noted that at that
time the Republic of Lithuania Law on Privatisation of Flats
(adopted on 28 May 1991; went into effect on 30 June 1991) was
already valid. Thus, two processes related with the essential
changes in property relations were taking place at the same
time. This exerted influence on the legal regulation of both
privatisation of flats and the relations of restoration of the
rights of ownership as well as on subsequent changes in this
regulation.
8. In the context of the case at issue, it is important to
elucidate upon what principles the restoration of the rights of
ownership was and is grounded in the course of returning the
residential houses, parts thereof, flats in kind to the owners
in which tenants reside; also, it is important to establish as
to what state guarantees were established for the tenants
residing in the residential houses, parts thereof, flats
subject to being returned (already returned).
9. It was established in the 28 May 1991 Law on
Privatisation of Flats that, under this law, one is prohibited
from selling "the residential houses, flats, which were seized,
confiscated or nationalised by administrative acts or in other
ways from the citizens of Lithuania who have the right to the
restoration of the rights of ownership under Article 2 of the
Republic of Lithuania Law 'On the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property'. Such
premises may be sold on the basis of other laws" (Item 4 of
Paragraph 1 of Article 3).
Under the Law on Privatisation of Flats, the persons who
at that time were tenants of premises attributed to the state
and public housing stock had the right, under the procedure
established by the Law on Privatisation of Flats, to buy
(privatise) the residential premises which had not belonged to
citizens of Lithuania and which had not been seized,
confiscated or nationalised by administrative acts or in other
unlawful ways, and, thus, to become the owners of the said
residential premises; meanwhile, the persons who at that time
were tenants of the residential houses, parts thereof, flats
which were attributed to the state and public housing stock,
which had belonged to citizens of Lithuania and which had been
seized, confiscated or nationalised by administrative acts or
in other unlawful ways, did not have the right, under the
procedure established by the Law on Privatisation of Flats, to
buy (privatise) the said residential houses, parts thereof,
flats. Therefore, the legal status of the latter persons did
not change: they continued to be tenants of the aforesaid
residential houses, parts thereof, flats, however, they did not
have the right, under the procedure established by the Law on
Privatisation of Flats, to buy (privatise) the rented
residential houses, parts thereof, flats.
10. Since 1991, when the restoration of the rights of
ownership began, the legal regulation of these relations has
been amended for more than once. The legal regulation of the
restoration of the rights of ownership by returning residential
houses, parts thereof, flats in kind and the state guarantees
established for the tenants residing in the houses subject to
being returned (already returned) have been changed for more
than once, too.
The legislator amended and supplemented the Law on
Privatisation of Flats many a time, however, the provision of
this law that, pursuant to the said law the residential houses,
flats may not be sold, which were seized, confiscated or
nationalised by administrative acts or in other unlawful ways,
remained virtually intact. The Law on Privatisation of Flats
became no longer valid on 12 October 2000.
11. By the 25 October 1992 referendum the Constitution of
the Republic of Lithuania was adopted. In the Constitution the
striving for an open, just, and harmonious civil society and
state under the rule of law is enshrined. While implementing
it, one must ensure the balance of interests, evade their
contraposition, as well as fortuities and arbitrariness, and
instability of social life. It is impossible to strive for a
state under the rule of law while recognising the interests of
only one group or one person and, at the same time, denying the
interests of others.
Justice is one of the main objectives of law as means of
regulation of social life; it is one of the most important
moral values and the basis of a state under the rule of law. It
is impossible to achieve justice by satisfying the interests of
one group and, at the same time, denying the interests of
others.
It needs to be noted that the values entrenched in the
Constitution constitute a harmonious system, there is a balance
between them. At the junction of the values safeguarded by the
Constitution one must come to decisions which ensure that not a
single of the said values is denied or unreasonably restricted.
Otherwise, the balance of values safeguarded by the
Constitution, the constitutional imperative of a harmonious,
civil society and the constitutional principle of the state
under the rule of law would be denied (Constitutional Court
ruling of 23 October 2002).
12. It needs to be noted that the legislator, while
regulating the restoration of the denied rights, enjoys the
discretion to establish the conditions and procedure of
restoration of the rights of ownership. This discretion is
objectively determined by the fact that during the time period
which passed from the unlawful disseizing of the property, the
system of property relations underwent essential changes.
However, while establishing, by laws, the conditions and
procedure of restoration of the rights of ownership to the
existing real property, the legislator is bound by the
Constitution, thus, he must also take into consideration the
constitutional principles of the protection of the rights of
ownership, the constitutional striving for an open, just, and
harmonious civil society, as well as other constitutional
values.
It also needs to be noted that the necessity to guarantee
the constitutional protection of the rights of ownership, the
constitutional imperative of an open, just, and harmonious
civil society implies a duty of the state, when it establishes,
by laws, the conditions and procedure of restoration of the
rights of ownership, to take account of the changed social,
economic, legal and other realia, to ensure that, while
restoring the rights of ownership of one group of persons, the
owners, one should not violate the rights and legitimate
interests of other persons, the tenants, who reside in the
residential houses, parts thereof, flats which are subject to
being returned to the owners. In the process of the restoration
of the rights of ownership, one must coordinate the interests
of both the former owners and society (Constitutional Court
rulings of 27 May 1994 and 8 March 1995) as well as the
legitimate interests of the former and present owners of the
same property and of the tenants who reside in the houses
subject to being returned (Constitutional Court rulings of 15
June 1994 and 22 December 1995). In its ruling of 22 December
1995, the Constitutional Court held that 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.
13. It is in this context that the compliance of the legal
acts, disputed by the petitioner, with the Constitution must be
investigated.
III
1. The restoration of the rights of ownership to the
existing real property began upon coming into effect of the 18
June 1991 Law "On the Procedure and Conditions of Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property". It was provided inter alia in Article 3 of this law
that the right of ownership shall be restored to residential
houses together with their appurtenances.
1.1. The conditions and procedure of restoration of the
right of ownership to residential houses were regulated by
Article 8 of the said law Paragraph 2 whereof provided:
"The procedure and time limits for the restoration of
residential houses (or parts thereof) which do not fall under
the category of houses defined in Article 14 of this law, shall
be established by the Government of the Republic of Lithuania,
pursuant to the provision that the residential houses shall be
returned in the following cases:
1) if they are reconstructed into non-residential premises
or if they are vacant;
2) if tenants, occupying houses subject to being returned,
and which are occupied by more than one family, have been
familiarised with all of the laws guaranteeing their rights,
and with their option to move under the conditions proposed by
the municipality and set forth in Article 21 of this Law, or
under other conditions guaranteed by the former owner of the
house;
3) if the residential house consists of a single dwelling
unit;
4) if the former owners reside in the house which is
subject to being returned."
1.2. The law also consolidated the right of the sate to
buy out the houses from the persons to whom the rights of
ownership were being restored, and it was provided as to the
cases when residential houses were to be bought out by the
state. Article 14 of the same law provided:
"Residential houses shall be bought out by the State from
persons specified in Article 2 of this Law while applying the
ways of buying out (compensation) provided for in Article 16 of
this Law, if they, in the opinion of the Government, are
indispensable for State necessities or if:
1) they have been expanded, rebuilt, or reconstructed into
non-residential premises and have thereby been given to
scientific, medical, cultural, educational or communications
establishments;
2) it is a wooden residential house which has been
substantially improved, or if the house has been augmented,
rebuilt, or reconstructed, thereby increasing the gross floor
area by more than 1/3, in a manner which makes it impossible to
separate the additional gross floor area from the original
one."
1.3. Article 16 of the same law provided:
"The State shall buy out the existing real property:
1) by transferring gratis the ownership of property of the
same type or value (of equivalent kind);
2) by one granting one-time state payments or by allotting
shares;
3) by making void financial liabilities of a citizen to
the state, by way of inclusion, which were incurred after the
appropriation of real property;
The method of buying out shall be chosen by the citizen
with the exception of cases specified in Articles 7, 8, 14 and
15 of this Law."
1.4. The same law also consolidated the provisions which
attempted to ensure the interests of the tenants residing in
houses returned to the owners: Article 21 of the law inter alia
provided that in the cases provided for in Item 3 of Paragraph
2 of Article 8 of this law, the owner shall be prohibited from
evicting the tenants of the house for ten years from the day of
restoration of ownership; persons who reside in a residential
house which has been returned to the owner shall be provided
with a place of residence by the municipality of the respective
town or district, pursuant to the programme prepared and
carried out by the Government. The said article also provided
that tenants residing in houses which have been returned to
their former owners shall have the right to obtain, free of
charge, a plot of land for the construction of a house, to join
a housing construction cooperative, and to get credits under
preferential conditions for these purposes, and that in the
event that a house is being sold by the original owner, the
tenants of this house shall have priority in the purchase of
it. It was stipulated in Paragraph 8 of Article 21 of the same
law that any actions intended to compel tenants to move from
the returned house, without safeguarding the guarantees defined
in this article, shall be prohibited, and shall incur liability
according to valid laws.
1.5. Thus, the 18 June 1991 Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" established the right
of the owners to restoration of the rights of ownership to
residential houses, parts thereof. From the legal regulation
established in the said law there appeared a legal expectation
of the owners that should they meet the conditions established
in the law, their rights of ownership to the residential
houses, parts thereof would be restored according to the
procedure and under conditions established by the law.
1.6. On the grounds of the 18 June 1991 Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" there
appeared a legitimate expectation of the tenants residing in
the houses subject to being returned to the owners that they
would be allocated other residential premises of equal value or
that the state would help them otherwise to provide themselves
with residential premises. In its ruling of 27 October 1998,
the Constitutional Court held that "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 Flats by making use of the deposited state
one-time payments (vouchers)." It was prohibited, by law, from
evicting the tenants who resided in houses returned to the
owners, until their guarantees legally established to them by
the state were fulfilled. Thus the law established the
succession of rent legal relations.
1.7. It needs to be emphasised that under the 18 June 1991
Law "On the Procedure and Conditions of Restoration of the
Rights of Ownership of Citizens to the Existing Real Property"
there appeared legal relations between the state and the owners
and between the state and the tenants residing in the houses
(parts thereof) subject to being returned (already returned).
In the relations with the owners a duty appeared before the
state to act so that the residential houses, parts thereof
which are not bought out by the state should be returned to the
owners in kind; in the relations with tenants residing in the
houses, parts thereof subject to being returned (already
returned), a duty appeared to the state to prepare programmes
for allocation of residential premises to the tenants, i.e. to
plan as to when and what premises would be allocated to the
tenants, to design for the funds in the state budget, necessary
to implement this programme, to design for other financial and
material resources which are needed to implement the
aforementioned programme, and act so that the obligations of
the state before the tenants might be fulfilled.
1.8. It also needs to be noted that after the provision
had been established in the 18 June 1991 Law "On the Procedure
and Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" that the state has the
right to buy out residential houses provided they are
indispensable for state necessities (Article 14), one did not
indicate as to the nature of the necessities that might be held
state necessities: the right to decide, at its discretion,
whether a particular residential house is indispensable for
state necessities was granted to the Government.
2. By the 25 October 1992 referendum, the Constitution of
the Republic of Lithuania was adopted. In the Constitution the
striving for an open, just and harmonious civil society and
state under the rule of law is enshrined; under Article 18 of
the Constitution, human rights and freedoms are innate. Article
23 of the Constitution provides that property shall be
inviolable and that the rights of ownership shall be protected
by laws; property may only be seized for the needs of society
in accordance with the procedure established by law and shall
be justly compensated for. Under Paragraph 1 of Article 29 of
the Constitution, all persons shall be equal before the law,
the court, and other state institutions and officials.
Paragraph 1 of Article 30 of the Constitution provides that the
person whose constitutional rights or freedoms are violated
shall have the right to apply to court.
The Constitutional Court has investigated the compliance
of articles (paragraphs thereof) of restitution laws with the
Constitution for more than once and has held for many a time
that the legislator, while enjoying the discretion to
establish, by laws, the conditions and procedure of restoration
of the rights of ownership to the existing real property, is
bound by the Constitution, that, while establishing the
conditions and procedure of restoration of the rights of
ownership, one is also to take account of the constitutional
principles of the protection of the rights of ownership. The
Constitutional Court has also noted that while establishing, by
laws, the conditions and procedure of restoration of the rights
of ownership, one must take into consideration the changed
social, economic and other conditions and ensure that in the
course of the restoration the rights of ownership of the owners
the rights and legitimate interests of the tenants residing in
the residential houses, parts thereof, flats subject to being
returned (already returned) to the owners not be violated.
While recognising the succession of the rights of ownership and
restoring the rights of ownership, one cannot deny the
succession of the formed tenancy relations.
3. On 12 January 1993, the Law "On the Amendment of the
Law 'On the Procedure and Conditions of Restoration of the
Rights of Ownership of Citizens to the Existing Real Property'"
was adopted.
3.1. By the law of 12 January 1993, Article 8 of the Law
"On the Procedure and Conditions of Restoration of the Rights
of Ownership of Citizens to the Existing Real Property"
(wording of 18 June 1991) was amended and it was established in
Paragraph 2 of the said article:
"The procedure and time limits for the restoration of
residential houses (or parts thereof) shall be established by
the Government of the Republic of Lithuania, pursuant to the
provision that the residential houses shall be returned in the
following cases:
1) when they are reconstructed into non-residential
premises or if they are vacant;
2) when, after they have been reconstructed, reconstructed
or augmented, the gross floor area increased by not more than
one third, if it is impossible to separate the additional gross
floor area from the original one, or if the main constructions
have not been changed by more than 50 percent;
3) when they have not been transferred to scientific,
health care, cultural, educational and communications
establishments;
4) when the tenants of the houses subject to being
returned agree, of their own free will, to move to other
residential premises which have been allocated to them;
5) when in the house subject to being returned the former
owners reside (if the former owners reside in a part of the
house, the said part of the house shall be returned to them
unconditionally);
6) when the residential house subject to being returned,
which together with its appurtenances (save those that have
been sold by the owner) belonging to the state or public
housing stock, is in agricultural or forest land which is
subject to being returned."
3.2. By the law of 12 January 1993, Article 14 of the Law
"On the Procedure and Conditions of Restoration of the Rights
of Ownership of Citizens to the Existing Real Property"
(wording of 18 June 1991) was also amended and it was
established therein:
"Residential houses shall be bought out (compensated for)
by the State from persons specified in Article 2 of this law in
the procedure established in Article 16 of this law, provided
they are indispensable for State necessities or if:
1) they have been expanded, rebuilt, or reconstructed into
non-residential premises and have been given to scientific,
medical, cultural, educational or communications
establishments;
2) it is a wooden residential house which has been
substantially improved, or if the house has been augmented,
rebuilt, or reconstructed, thus increasing the gross floor area
by more than 1/3, in a manner which makes it impossible to
separate the additional gross floor area from the original
one."
3.3. Besides, by the law of 12 January 1993, Article 21 of
the law of 18 June 1991 was amended, which provided for the
guarantees for the tenants who resided in the houses subject to
being returned to the owners: Paragraph 4 of the said article
provided that "the owner of the returned house or flat shall be
prohibited from evicting the tenants until they have been
allotted or until they have acquired other residential premises
of equivalent value".
3.4. Thus, upon the amendment of the articles (paragraphs
thereof) of the 18 June 1991 Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" on 12 January 1993, the
principles of restoration of the rights of ownership to
residential houses (parts thereof) which had previously been
established remained unchanged. The legal expectations of the
owners as well as the tenants residing in the houses (parts
thereof) subject to being returned (or which had been returned)
remained unchanged as well; the duties of the state for the
owners of the houses (parts thereof) subject to being returned
(already returned) as well as the tenants residing in these
houses (parts thereof) did not change, either.
Upon the amendment of Article 14 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property", the legal
regulation of buying out of the residential houses which had
been established before was not in essence amended as well,
however, after the words "in the opinion of the Government" had
been deleted, it was no longer indicated as to which state
institution is competent to decide whether the houses are
indispensable for state necessities and, due to this, were to
be not returned in kind but were to be bought out.
3.5. In its ruling of 15 June 1994, the Constitutional
Court held that under Item 4 of Paragraph 2 of Article 8 of the
Law "On the Procedure and Conditions of Restoration of the
Rights of Ownership of Citizens to the Existing Real Property"
(wording of 12 January 1993) "the manner of restoration of the
rights of ownership to a residential house (parts thereof) is,
at present, determined not by objective circumstances but by a
subjective factor established in the law, which is the
agreement or refusal by the tenants to move to the residential
premises allotted to them". By the said ruling, the
Constitutional Court recognised that Item 4 of Paragraph 2 of
Article 8 of the said law, whereby the residential houses were
to be returned in cases when "the tenants of the houses subject
to being returned agree, of their own free will, to move to the
residential premises allotted to them" was in conflict with
Article 23 of the Constitution. It is emphasised in the same
Constitutional Court ruling that "persons to whom ownership
rights to residential houses are being restored, had the
possibility to restore the houses in kind 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 of the same contents, as it would mean
violation of persons' equality before law".
4. On 11 January 1994, the Seimas adopted the Republic of
Lithuania Law "On the Amendment and Supplement of the Republic
of Lithuania Law 'On the Procedure and Conditions of
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property'".
4.1. The said law inter alia supplemented Paragraph 2 of
Article 8 of the Law "On the Procedure and Conditions of
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property" with Item 4 and it was established that
residential houses (or parts thereof) shall be returned to the
former owners "when the natural persons who have acquired the
ownership of the houses (or parts thereof) subject to being
returned agree, of their own free will, to move to other
residential premises allotted to them."
4.5. By its ruling of 15 June 1994, the Constitutional
Court recognised the said provision of the law of 11 January
1994 whereby Paragraph 2 of Article 8 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" had been
supplemented with Item 4 to be not in conflict with the
Constitution.
5. On 3 July 1995, the Seimas adopted the Republic of
Lithuania Law "On the Amendment and Supplement of the Republic
of Lithuania Law 'On the Procedure and Conditions of
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property'".
5.1. By the law of 3 July 1995, Article 14 of the Law "On
the Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) was recognised as no longer valid.
5.2. By the same law of 3 July 1995, Article 8 of the law
(wording of 12 January 1993) was amended and it was established
in Paragraph 2 thereof:
"Residential houses, parts thereof, flats shall be
returned in kind in each of the following cases, if
1) they are vacant;
2) they have been reconstructed into non-residential
premises and have not been transferred to scientific, health
care, cultural, educational and communications establishments;
3) they have been transferred to scientific, health care,
cultural, educational and communications establishments,
however, they are not used to their purpose provided for in the
projects of rearrangement of the premises or the documents of
transfer;
4) the tenants who reside in the houses, parts thereof,
flats have been allotted other residential premises which meet
the requirements of Article 358 of the Civil Code of the
Republic of Lithuania;
5) in the house subject to being returned the persons
specified in Article 2 of this Law reside: they shall be
returned the part of the house, flat in which they reside;
6) the houses subject to being returned have been
reconstructed, reconstructed so that their gross floor area
increased for more than one third, but it is possible to
separate the newly created area from the former one, although
the main constructions have been changed for more than 50
percent, however, on 1 July 1995 they are vacant or rented for
economic-commercial activity, the part of the house shall be
returned which corresponds to the part of the former
residential house;
7) the natural persons who have acquired the ownership of
the houses, parts thereof, flats subject to being returned
agree (the agreement is expressed by notarial form) to move to
the residential premises allotted to them."
5.3. After Article 8 of the Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 12 January
1993) had been amended by the aforesaid law of 3 July 1995,
Paragraph 4 of the same article provided: "In all other cases
not specified in the second paragraph of this Article, the
right of ownership to residential houses, parts thereof, flats
shall be restored by buying them out by the state from the
persons specified in Article 2 of this Law, at their option, in
the following ways: <...>."
5.4. Thus, the 3 July 1995 Law "On the Amendment and
Supplement of the Republic of Lithuania Law 'On the Procedure
and Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property'" established additional
cases when residential houses, parts thereof, flats were to be
returned to the owners, and consolidated the provision that the
residential houses, parts thereof, flats in which tenants
reside were to be returned to the owners after the tenants had
been allotted other residential premises which met the
requirements of Article 358 of the Civil Code which was then in
effect.
It also needs to be noted that the Law "On the Procedure
and Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 3 July
1995) no longer contained the provision that the residential
houses shall be bought out by the state if they are
indispensable for state necessities.
5.5. In its ruling of 22 December 1995, the Constitutional
Court held that the provision of Item 4 of Paragraph 2 of
Article 8 of the Law "On the Procedure and Conditions of
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property" (wording of 3 July 1995), under which
the tenant is allotted other residential premises which meet
the requirements of Article 358 of the Civil Code, attempted to
coordinate the protection of the rights of the former owners
and the tenants, therefore this provision was not in conflict
with the Constitution. In the said ruling, the Constitutional
Court also held that such coordination of the rights of the
former owners and the tenants when, in the course of the
returning of residential houses to the former owners the rights
of the tenants were ensured by the fact that they had to be
allotted other properly furnished residential premises had been
established from the day of the entry into effect of the law.
6. The process of restoration of the right of citizens to
the existing real property, thus to residential houses, parts
thereof, flats was temporarily withheld from 24 January 1997
till 8 July 1997. This was done upon the entry into effect of
the 16 January 1997 Republic of Lithuania Provisional Law on
the Suspension of the Validity of the Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property". It was established in
Article 1 titled "Purpose of the Law" of the law of 16 January
1997 that temporarily, until a new law is adopted, the validity
of the Law "On the Procedure and Conditions of Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property" shall be suspended.
In its decision of 13 November 1997, the Constitutional
Court held that "suspension of validity of laws is not
characteristic of law-making and, as a rule, is linked with
situations pointed out in the Constitution". Taking account of
the fact that on 1 July 1997, the Seimas adopted the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property Item 3 of Article 22 whereof provided
that upon the entry into effect of this law, the Provisional
Law on the Suspension of the Validity of the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" becomes no
longer valid, the Constitutional Court dismissed the initiated
legal proceedings.
7. On 1 July 1997, the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
was adopted. This law went into effect on 9 July 1997. As of
the day of the entry into effect of the said law, the 18 June
1991 Law "On the Procedure and Conditions of Restoration of the
Rights of Ownership of Citizens to the Existing Real Property"
became no longer valid (with all its amendments and
supplements).
7.1. It is established in the Preamble to the 1 July 1997
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property that "the rights of ownership
acquired by the citizens of the Republic of Lithuania before
the occupation are not revoked and have continuity", that "the
Constitution of the Republic of Lithuania adopted by the will
of citizens of the Republic of Lithuania in 1992, guarantees
and defends the rights and property of the State and its
citizens", that "the restoration of continuation of the rights
of ownership is based on the provision of the 18 June 1991 Law
of the Republic of Lithuania 'On the Procedure and Conditions
of Restoration of the Rights of Ownership to the Existing Real
Property'-the existing real property shall be returned to
citizens of the Republic of Lithuania, and in the event it is
impossible to do so, they shall be compensated justly."
7.2. It was established in Paragraph 1 of Article 8 of the
1 July 1997 Law on the Restoration of the Rights of Ownership
of Citizens to the Existing Real Property: "Ownership rights to
residential houses, parts thereof, flats shall be restored to
persons specified in Article 2 of this Law by returning them in
kind, except the residential houses, parts thereof, flats which
are subject to the State buy-out pursuant to Article 15 of this
Law."
7.3. In its ruling of 27 October 1998, the Constitutional
Court recognised that Paragraph 1 of Article 8 of the 1 July
1997 law was not in conflict with the Constitution. The
Constitutional Court held that Paragraph 1 of Article 8 did not
contain any all-encompassing rule that all residential houses
were to be returned in kind. The said paragraph of that article
contained reference to Article 15 of the law Item 3 whereof
provided that the residential houses (parts thereof) and flats
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 one had acquired private ownership of the said
houses by law. The Constitutional Court also held that, under
the law, it was impossible to return such residential houses
(parts thereof) and flats in kind to persons who were subject
to restoration of the rights of ownership; such residential
premises remained property of their present owners, and the
disputed norm of the law did not violate their rights of
ownership.
7.4. Article 15 of the law of 1 July 1997 provided:
"Residential houses, parts thereof, flats shall be bought
out by the State from the citizens specified in Article 2 of
this Law and it shall be compensated for them according to
Article 16 of this Law, provided:
1) they have been reconstructed into non-residential
premises and used for educational, health care, cultural,
scientific needs, and by communal care residences. The list of
these premises shall be approved by the Government;
2) they have been substantially reconstructed to such an
extent that more than 60 percent of the main constructions have
been altered and it is impossible to separate the newly created
gross floor area from the former one, if the gross floor area
exceeds the former by 30 per cent;
3) one has acquired private ownership thereof according to
laws."
7.5. In the said 27 October 1997 ruling, the
Constitutional Court held that the legal regulation when "the
residential houses are bought out by the state", if "more than
60 per cent of the main constructions" are replaced, "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 residential houses were
not to be returned to them in kind but bought out by the
state". The Constitutional Court recognised that the provision
"more than 60 per cent of the main constructions have been
replaced" of Item 2 of Article 15 of the law of 1 July 1997 was
in conflict with Article 29 and Paragraphs 2 and 3 of Article
46 of the Constitution.
7.6. On 13 May 1999, the Seimas adopted the Republic of
Lithuania Law on the Amendment and Supplement of Articles 2, 4,
5, 10, 12, 13, 15, 16, 18, 20, and 21 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property by Article 7 whereof Item 2 of Article
15 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 1 July 1997)
was amended and, instead the words "more than 60 percent" the
words "more than 50 percent" were entered.
8. The ways by which the state compensates citizens for
the residential houses, parts thereof, flats bought out by the
state were established in Paragraph 9 of Article 16 of the law
of 1 July 1997. Under this paragraph of the said article, the
state shall compensate citizens for the residential houses,
parts thereof, flats which are being bought out by the state in
the following ways:
"1) by transferring them gratis the ownership of the flats
rented by them from the state or municipal housing stock, the
difference in values whereof shall be paid in the manner
prescribed by the Government;
2) by transferring them gratis, in the manner prescribed
by the Government, the ownership of the flats which are equal
in value to the previously held houses, parts thereof, flats;
3) by transferring gratis the ownership of a new plot of
land for individual construction, equal in value to the houses,
parts thereof, flats held previously, in the locality where
they were situated. At the request of a citizen, the ownership
of an equivalent new plot of land for individual construction
may be, in the manner prescribed by the Government, transferred
gratis in the towns and rural areas other than those where
residential houses, parts thereof, flats were situated, except
the towns of Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys,
Alytus, Marijampolė, Druskininkai, Palanga, Birštonas, and
Neringa;
4) by transferring them gratis the ownership of vacant,
not rented buildings, structures or the parts thereof equal in
value to the houses, parts thereof, flats held previously. The
procedure for the transfer of these buildings, structures and
parts thereof shall be established by the Government;
5) by making void by way of inclusion a citizen's monetary
liabilities to the State which occurred after the taking away
of the real property up to the passing a decision to restore
the rights of ownership, in accordance with the procedure
established by the Government;
6) by transferring them gratis the ownership of other
property in the manner prescribed by the Government;
7) in cash and/or in securities."
9. Article 16 of 1 July 1997 had been amended for more
than once (on 13 May 1999, 3 August 2001, 11 December 2001)
until 15 January 2002, when the law was adopted the provisions
whereof a group of members of the Seimas, the petitioner, have
disputed by their petition of 24 January 2002, however, the
provisions of Paragraph 9 of Article 16 did not change (by
Paragraph 2 of Article 8 of the Law on the Amendment and
Supplement of Articles 2, 4, 5, 10, 12, 13, 15, 16, 18, 20, and
21 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property the numeration of
paragraphs of Article 16 was changed: Paragraph 9 of Article 16
became Paragraph 10 thereof).
10. In the 1 July 1997 Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
one established guarantees for the tenants residing in the
houses, parts thereof, or flats subject to being returned to
the owners.
10.1. Article 20 of the said law provided:
"1. When a residential house, part thereof, flat, in which
tenants reside, is given back in kind to a citizen, all the
tenants' rights and duties according to the agreement of
tenancy of residential premises shall, in the manner prescribed
by the Government, be taken over by the municipality until the
time when the State provides the tenant with other residential
premises or shall otherwise compensate him in the forms
specified in this Law. Until such time the owner shall be
prohibited from terminating the agreement of tenancy with the
municipality and shall be prohibited from evicting the tenants,
with the exception of the cases provided for in the Civil Code.
2. The municipality which has taken over the tenants'
rights and duties, shall, in the manner and in accordance with
the conditions prescribed by the Government, rent residential
premises to the tenants who reside in these premises, as well
as shall have care of exploitation and maintenance thereof.
These tenants shall pay the municipality rent and public
utilities charges according to the rates established by the
municipality, and the municipality shall, under the procedure
and conditions established by the Government, settle with the
owner of a returned house, part thereof, flat according to the
agreement of tenancy of residential premises.
3. The municipality must, under the procedure and
conditions established by the Government, issue a guarantee
certificate confirming that the tenants residing in the house,
part thereof, flat which has been returned to the citizen,
shall be provided gratis with other residential premises. In
the event that the tenant refuses such a possibility, the
municipality must, under the procedure and conditions
established by the Government, reimburse the expenses related
to acquisition of other residential premises or, if the tenant
requests so, allot gratis a plot of land for the construction
of a residential house. The tenant who has been provided with
other residential premises or has been paid compensation for
the acquisition of other residential premises, must within 6
months vacate the residential premises he occupied, and if he
has been provided gratis with a plot of land for the
construction of a residential house-within 1 year.
4. The value of other residential premises which are
provided gratis to the tenants, reimbursable expenses related
to the acquisition of other residential premises, the size of a
plot of land which is allotted gratis for the construction of a
residential house shall be established under procedure
established by the Government.
5. The tenants who continue to reside in the residential
houses, parts thereof, flats the owners of which do not desire
to retrieve them, shall acquire the right to buy them out
pursuant to the Law on the Privatisation of Flats within 6
months of the decision on the legal registration of the
residential house, part thereof, flat under the name of the
municipality or the state in the Real Property Register.
6. The value of other residential premises which are
assigned to the ownership of the tenant or the value of a plot
of land which is allotted gratis to the tenant may not exceed
the amount of the compensation for the tenant, which is
calculated in accordance with the procedure established by the
Government. At the tenant's request, residential premises or a
plot of land of lesser value may be allotted to him, while the
difference of the compensation he has the right to be paid in
cash.
7. The provisions of Paragraphs 1 and 2 of this Article
shall be valid even in the event of the change of the owner of
a house, part thereof, flat."
10.2. In its ruling of 27 October 1998, the Constitutional
Court held that as Paragraph 3 of Article 20 of the law of 1
July 1997 did not contain any provision that the guarantee
certificate issued by the municipality was a state guarantee
(obligation by the state), such a document might be treated as
a legal act passed by the municipality the force of which, from
the point of view of the protection of human rights, would be
insufficient in that case. The Constitutional Court recognised
that the provision "the municipality must, under the procedure
and conditions established by the Government, issue a guarantee
certificate confirming that the tenants residing in the house,
part thereof, flat which has been returned to the citizen,
shall be provided gratis with other residential premises. In
the event that the tenant refuses such a possibility, the
municipality must, under the procedure and conditions
established by the Government, reimburse the expenses related
to acquisition of other residential premises or, if the tenant
requests so, allot gratis a plot of land for the construction
of a residential house" of Paragraph 3 of Article 20 of the
said law (wording of 1 July 1997) and Paragraph 4 of Article 20
of the same law inasmuch as it is related to the implementation
of the aforementioned provisions were in conflict with Article
29 of the Constitution.
11. Thus, the 1 July 1997 Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
broadened the rights of the owners to restore the rights of
ownership by returning residential houses, parts thereof, flats
in kind. The fact that tenants resided in the houses, parts
thereof, flats subject to being returned to the owners was not
considered to be a ground for not restoring of the rights of
ownership by returning the houses, parts thereof, flats in
kind. The returning of the residential houses, parts thereof,
flats to the owners also in the cases when tenants resided
therein was not in itself diminishing of the guarantees of the
tenants, since due to that the legal status of the tenants did
not change. Paragraph 3 of Article 20 of the Law and Paragraph
4 thereof inasmuch as it established not sufficient guarantees
for the tenants were recognised by the Constitutional Court to
be in conflict with the Constitution.
The law again consolidated the legitimate expectations of
the owners and the tenants, which appeared from the previous
law which had been in effect.
12. On 13 May 1999, the Republic of Lithuania Law on the
Amendment and Supplement of Articles 2, 4, 5, 10, 12, 13, 15,
16, 18, 20, and 21 of the Law on the Restoration of the Rights
of Ownership of Citizens to the Existing Real Property was
adopted, which inter alia amended Article 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 1 July 1997).
12.1. Article 20 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 13 May 1999) prescribed:
"1. When a residential house, part thereof, flat, in which
tenants reside, is given back in kind to a citizen, all the
tenants' rights and duties according to the agreement of
tenancy of residential premises shall, in the manner prescribed
by the Government, be taken over by the municipality until the
time when the State fulfils the guarantees granted to them.
Until such time the owner shall be prohibited from terminating
the agreement of tenancy with the municipality and shall be
prohibited from evicting the tenants, with the exception of the
cases provided for in the Civil Code.
2. The municipality which has taken over the tenants'
rights and duties, shall, in the manner and in accordance with
the conditions prescribed by the Government, rent residential
premises to the tenants who reside in these premises, as well
as shall have care of exploitation and maintenance thereof.
These tenants shall pay the municipality rent and public
utilities charges according to the rates established by the
municipality, and the municipality shall, under the procedure
and conditions established by the Government, settle with the
owner of the returned house, part thereof, flat according to
the agreement of tenancy of residential premises.
3. The institution which adopts a decision to return a
citizen his house, part thereof, flat, must issue a State
guarantee certificate to the tenants. Such a guarantee
certificate shall also be issued to the owner of the house,
part thereof, flat subject to being returned. The State
guarantees, execution thereof, the rights and duties of those
enjoying the said guarantees shall be established by the Law on
the Amount, Sources, Terms and Procedure of Payment of
Compensations for the Real Property Bought Out by the State as
well as the Guarantees and Preferences Provided for in the Law
on the Restoration of the Rights of Ownership of Citizens to
the Existing Real Property.
4. The tenants residing in the residential house, part
thereof, flat subject to being returned in kind to a citizen,
must, within 3 months of the reception of the notice from the
institution specified in Paragraph 2 of Article 17 of this Law,
state their will on the State guarantee provided by the Law on
the Amount, Sources, Terms and Procedure of Payment of
Compensations for the Real Property Bought Out by the State as
well as the Guarantees and Preferences Provided for in the Law
on the Restoration of the Rights of Ownership of Citizens to
the Existing Real Property. In case the tenants do not state
their will on the State guarantee provided by the said law
within the indicated time, the said guarantee shall be
established by the institution specified in Paragraph 2 of
Article 17 of this Law at its discretion.
5. If the owner of the residential house sells the
returned residential house, part thereof, flat, the tenants
shall have the right of priority to buy it under the procedure
and conditions established in Article 125 of the Civil Code.
6. The tenants who continue to reside in the residential
houses, parts thereof, flats the owners of which do not desire
to retrieve them, shall acquire the right to buy them out under
procedure established by the Government within 6 months of the
decision on the legal registration of the residential house,
part thereof, flat under the name of the municipality or the
State in the Real Property Register.
7. The provisions of Paragraphs 1 and 2 of this Article
shall be valid even in the event of the change of the owner of
the house, part thereof, flat."
12.2. Thus, the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
13 May 1999) established guarantees for the owners and the
tenants, which in part corresponded to those established
previously (wording of 1 July 1997) by inter alia withdrawing
the legal regulation which had been recognised by the
Constitutional Court in its 27 October 1998 ruling to be in
conflict with the Constitution.
13. The guarantees for the tenants were established in
Article 9 of the Law on the Amount, Sources, Terms and
Procedure of Payment of Compensations for the Real Property
Bought Out by the State as well as the Guarantees and
Preferences Provided for in the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property,
which was adopted on 16 June 1998.
The said article provided for the following guarantees for
the tenants and the owners:
"1. The tenant of the residential house, part thereof,
flat returned to the owner shall be granted gratis the
ownership of other residential premises or shall be compensated
the expenses of acquisition of other residential premises or a
land plot for the construction of a residential house under
procedure established by the Government according to the
programme prepared by the Government which is drawn up while
taking account of the data presented by municipalities of towns
and districts. On the grounds of the said data, the Government
shall annually provide in the Republic of Lithuania draft law
on approving the financial indicators of the state budget and
municipal budgets the amount of funds necessary for the
implementation of the said programme.
2. If the owner of the residential house sells the
returned residential house, part thereof, flat, the tenants
shall have the right of priority to buy it under the procedure
and conditions established in Article 125 of the Civil Code.
3. The size of the land plot allotted gratis to the tenant
for the construction of a residential house, the compensated
expenses for the acquisition of other residential premises,
also, the value of other residential premises must be
equivalent to the value of the premises rented by the said
tenants. The value of the rented premises shall be determined
under the same procedure as that determining the value of the
houses, parts thereof, flats which are returned to the owners.
4. In cases when the value of the premises allotted to the
tenant exceeds the value of the premises rented by him, the
tenant shall be transferred gratis the ownership of only the
part of the newly allotted premises which corresponds to the
value of the premises rented by him. The remaining part of the
residential premises must be bought out by the tenant according
to the market value by instalments within 10 years under
procedure established by the Government.
5. In cases when the tenant, with his consent, is
transferred gratis the ownership of residential premises the
value whereof is less than of those previously rented, the
difference in value between the rented and transferred premises
shall be compensated to the tenant under procedure and terms
established by the Government.
6. The tenant who has been provided with other residential
premises or has been paid compensation for the acquisition of
other residential premises or a land plot, must within 6 months
of the provision of the other residential premises or payment
of the compensation vacate the residential premises he
occupied, and if a land plot is bought with the acquired funds
for the construction of a house-within 1 year of the day of
buying the plot. If the tenants do not move, they are evicted
under procedure established by laws pursuant to the claim of
the district municipality."
14. By Article 2 of the 13 May 1999 Republic of Lithuania
Law on the Amendment and Supplement of Articles 8, 9, 10, and
12 of the Law on the Amount, Sources, Terms and Procedure of
Payment of Compensations for the Real Property Bought Out by
the State as well as the Guarantees and Preferences Provided
for in the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property Article 9 of the Law on
the Amount, Sources, Terms and Procedure of Payment of
Compensations for the Real Property Bought Out by the State as
well as the Guarantees and Preferences Provided for in the Law
on the Restoration of the Rights of Ownership of Citizens to
the Existing Real Property was amended and it was established
therein:
"1. The institution which adopts a decision to return a
citizen his house, part thereof, flat, must issue a guarantee
certificate (hereinafter-guarantee) to the tenants residing in
the house, part thereof, flat which is returned to the citizen
whereby one undertakes an obligation that during the time
period specified in the certificate they:
1) will be transferred gratis the ownership of other
residential premises, or
2) will be allotted other residential premises of greater
value the ownership of the part whereof conforming to the value
of the rented premises will be transferred gratis, while the
remaining part will have to bought out by them under procedure
established by law, or
3) will be transferred gratis the ownership of other
residential premises of lesser value, while the difference in
value between the rented and transferred residential premises
shall be compensated under procedure and terms established by
the Government, or
4) will be transferred gratis the ownership of a land plot
for the construction of a residential house or granted a credit
on preferential terms will be issued for such a construction,
or
5) will be granted a credit on preferential terms for the
construction or acquisition of a dwelling place, or
6) will be compensated the expenses of the acquisition of
other residential premises.
2. The tenants of the house, part thereof, flat returned
to a citizen shall have the right to only one of the guarantees
specified in Paragraph 1 of this Article.
3. The institution specified in Paragraph 1 of this
Article must alongside issue a guarantee to the owner of the
returned house, part thereof, or flat.
4. The State guarantee for the tenant shall be a
certificate issued under established procedure whereby the
State (guarantor) shall obligate itself to fulfil the guarantee
specified in Paragraph 1 of this Article for the tenant
(possessor of the guarantee) of the house, part thereof, flat
which is returned, while the tenant (possessor of the
guarantee) shall obligate himself, after the guarantee is
fulfilled, to vacate the held residential premises during the
time period established in Paragraph 7 of this Article. The
State guarantee to the tenant must contain: the place, date of
the issuance of the guarantee, its number, the institution
which issued it, the date and number of the decision adopted by
it on the returning of the house, part thereof, or flat in
kind, the guarantor, the possessor of the guarantee and his
personal code, one of the guarantees specified in Paragraph 1
of this Article and the date of its fulfilment, the obligation
of the possessor of the guarantee, after the guarantee is
fulfilled, to vacate the held residential premises, and the
enumeration of all members of the family of the possessor of
the guarantee as well as other residents who, under the laws,
have the right to the rented residential premises (save
subtenants and transients), the surname, name, office of the
person who signed it, and the seal of the institution. This
guarantee is signed by the possessor of the guarantee, the
members of the family of the tenant and the other residents
who, under the laws, have the right to the rented residential
premises. Upon the death of the possessor of the guarantee, the
guarantee shall be valid until it is fulfilled.
5. The State guarantee to the owner shall be a certificate
issued under established procedure whereby the State
(guarantor) shall obligate itself to transfer, during the time
period specified therein, to the owner (possessor of the
guarantee) the residential and other premises vacated by the
tenants in the house, part thereof, flat returned for the
owner. The State guarantee to the owner must contain: the
place, date of the issuance of the guarantee, its number, the
institution which issued it, the date and number of the
decision adopted by it on the returning of the house, part
thereof, or flat in kind, the guarantor, the possessor of the
guarantee and his personal code, the date of the fulfilment of
the guarantee, the surname, name, office of the person who
signed the guarantee, the seal of the institution and the
signature of the possessor of the guarantee. Upon the death of
the possessor of this guarantee, until it is fulfilled, the
guarantee shall be valid in respect to his heirs.
6. The succession of fulfilment and records of the State
guarantees specified in Paragraphs 4 and 5 of this Article
shall be established by the Government of the Republic of
Lithuania, while taking account of the fact that the guarantees
specified in Items 1, 2, 3, and 6 of Paragraph 1 of this
Article must be fulfilled until 1 January 2006, while those
specified in Items 4 and 5-within 1 year of their issuance,
that in the first place the guarantees shall be fulfilled the
possessors of which are attributed to the persons who need
social assistance by the Law 'On the Provision by the Residents
of the Republic of Lithuania with Residential Premises', while
in the second place-the guarantees of other possessors.
7. The time of validity of the State guarantee expires
after it is fulfilled. The tenant who has been allotted other
properly furnished residential premises or transferred gratis
the ownership of other residential premises, must vacate the
held residential premises within 1 month; if he has been
transferred gratis a land plot for the construction of a
residential house and granted a credit on preferential terms
for the construction, he must vacate the held residential
premises within 2 years; if he has been granted a credit on
preferential terms for the construction of a dwelling place, he
must vacate the held residential premises within 2 years, while
if this was for the acquisition of a dwelling place-within 2
months of the day of the fulfilment of State guarantees. The
tenants who have not fulfilled the above conditions shall be
evicted from the previously held residential premises. After
the tenants of the returned house, part thereof, or flat vacate
the held residential and other premises or if the tenants are
evicted from them, the institution specified in Paragraph 1 of
this Article must, under procedure established by the
Government, transfer the premises to the owner of the
residential house, part thereof, or flat.
8. The State guarantees to the owner shall be fulfilled
according to the programme prepared by the Government which is
drawn up while taking account of the data presented by
municipalities of towns and districts. On the grounds of the
said data, the Government shall annually provide in the
Republic of Lithuania draft law on approving the financial
indicators of the state budget and municipal budgets the amount
of funds necessary for the implementation of the said
programme.
9. The value of the land plot allotted gratis to the
tenant for the construction of a residential house, the
compensated expenses for the acquisition of other residential
premises, also, the value of other residential premises must be
equivalent to the value of the premises rented of the said
tenants. The value of the rented premises shall be determined
under the same procedure as that determining the value of the
houses, parts thereof, flats which are returned to the owners.
10. The amounts of credits on preferential terms granted
to the tenants for the construction of a residential house or
for the construction or acquisition of a dwelling place and the
procedure of their granting and repayment shall be established
by the Government."
15. On 21 March 2000, Item 2 of Paragraph 1 of Article 9
of the Republic of Lithuania Law on the Amount, Sources, Terms
and Procedure of Payment of Compensations for the Real Property
Bought Out by the State as well as the Guarantees and
Preferences Provided for in the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
was amended, however, the state guarantees for the tenants and
the owners in essence remained the same.
In this context, it also needs to be noted that under the
7 April 1992 Republic of Lithuania Law on the Provision by the
Residents of the Republic of Lithuania with Residential
Premises (with subsequent amendments and supplements), the
citizens residing in the houses subject to being returned shall
have the right to state support in providing themselves with
residential premises.
16. Summarising the legal regulation of restoration of the
rights of ownership by returning residential houses, parts
thereof, flats to the owners which existed until 15 January
2002 when the Law on the Amendment and Supplement of Articles
2, 8, 12, 15, 16, 18, 20, and 21 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property was adopted and the provisions of the amendments made
by the said law to the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property are
disputed by the petitioner, a group of members of the Seimas,
in its petition of 24 January 2002, it is clear that the said
legal regulation was initially grounded on the provision that
the existing residential houses (parts thereof), which were
unlawfully disseized, confiscated or nationalised by
administrative acts of the occupation government or in other
ways, must be returned to the owners in kind, while if it is
impossible to return them in kind, such houses (parts thereof)
are bought out by the state, while the owners are compensated.
The residential houses, parts thereof, flats are not returned
to the owners in kind and are bought out by the state if they
are indispensable for the state necessities, if one has
acquired, according to laws, the private ownership of the
houses, parts thereof, flats, also in other cases provided for
in the law. For instance, the residential houses, parts
thereof, flats are also bought out by the state which have
essentially been reconstructed so that the greater part of the
main constructions was changed and it is impossible to separate
the new gross floor area from the former one.
The legislator gradually broadened the rights of the
owners to restore the rights of ownership to the residential
houses, parts thereof, flats also in the cases when tenants
resided therein. The legal status of the tenants residing in
the residential houses, parts thereof, flats subject to being
returned (already returned) to the owners was not changed: they
remained tenants of the said premises.
The legislator, while taking account of the conditions and
procedure of restoration of the rights of ownership to
residential houses, parts thereof, flats, at the same time
established state guarantees to the tenants residing therein.
These guarantees were different at different time periods,
however, the state was always obligated to transfer the
ownership of other residential premises to the tenants or to
allot them gratis a land plot for the construction of a
residential house or to compensate them the expenses of the
acquisition of other residential premises. The legislator
consolidated the provision that state guarantees are fulfilled
according to the programme prepared by the Government, that the
Government must annually provide in the draft law on approving
the financial indicators of the state budget and municipal
budgets for funds necessary for the implementation of the said
programme. The state also guaranteed that until the tenants are
allotted other residential premises or paid compensation for
the acquisition of other residential premises, the tenants may
not be evicted from the residential houses, parts thereof,
flats which have been returned to the owners save the cases
provided for in the Civil Code.
17. It needs to be noted that the right of citizens to
restore their violated rights of ownership under procedure and
conditions established by law by retrieving the residential
houses, parts thereof, flats in kind stems from the principle
of constitutional protection of the right of ownership, which
is innate, also, from the laws adopted by the Seimas regulating
restoration of the rights of ownership. The state, after it has
adopted a decision to restore the rights of ownership, must
follow the undertaken obligations and create conditions for the
actual implementation of the said right.
The legitimate expectations of the tenants who reside in
the houses, parts thereof, flats subject to being returned
(already returned) to the owners, to acquire the ownership of
other residential premises of equal value, arise from the laws
adopted by the Seimas establishing state guarantees to the
tenants.
18. As it has been held in this Ruling of the
Constitutional Court, by such legal regulation legal relations
between the state and the owners of the houses (parts thereof)
subject to being returned (already returned) and between the
state and the tenants residing in the houses (parts thereof)
subject to being returned (already returned) were created.
18.1. In the context of the case at issue, one is to note
that the content of the relations between the state and the
owners of the residential houses, parts thereof, flats subject
to being returned means that the owners have acquired the right
to restore, under conditions and procedure established in the
law, their rights to the existing residential houses, parts
thereof, flats by getting them back in kind, while in the
absence of such an opportunity, to be compensated; a duty
appeared for the state to further regulate the restoration of
the rights of ownership by laws so that the rights of ownership
to the existing residential houses, parts thereof, flats would
be restored to the owners. The owners have a legitimate
expectation that their rights of ownership to the existing
residential houses, parts thereof, flats will be restored; this
legitimate expectation of theirs is protected and safeguarded
by the Constitution.
18.2. In the context of the case at issue, it also needs
to be noted that the content of the relations between the state
and the tenants residing in the residential houses, parts
thereof, flats subject to being returned (already returned)
means that after the state has established the guarantees to
the tenants, the tenants acquired a legitimate expectation that
the state guarantees established and repeatedly reiterated by
laws will be fulfilled in reality. A duty appeared for the
state to establish the legal regulation and act so that the
guarantees established by the state for the tenants would be
fulfilled in reality. The said expectation of the tenants is
also protected and safeguarded by the Constitution.
18.3. There is not any contraposition between the duty of
the state for the owners and the duty of the state for the
tenants residing in the houses, parts thereof, flats subject to
being returned (already returned) to the owners. The guarantees
established by the state for the tenants are, at the same time,
state guarantees for the owners, since only upon the fulfilment
of the guarantees to the tenants, the owners can completely
implement their rights of ownership, i.e. possess, use and
dispose of the residential houses, parts thereof, flats
returned to them in kind. Thus, from the standpoint of law,
there is no contraposition between the aforesaid legal
expectations of the owners and the tenants.
18.4. The legislator, by choosing the flat privatisation
model in 1991 when part of persons who, as the rest of the
tenants, rented the premises assigned to the state and public
housing stock could not acquire their ownership (privatise
them) only due to the fact that the said premises were in the
houses subject to being returned to the owners, alongside
undertook the obligation not only to establish state guarantees
to the tenants but also to establish the legal regulation and
to act so that the said tenants would have the right to acquire
the ownership of other residential premises belonging to the
state or municipalities or, with the help of the state, to
provide themselves with residential premises by other ways.
It needs to be noted that a mere establishment of state
guarantees to the tenants is not sufficient. Although allotting
the tenants other residential premises of equal value or
accomplishment of other ways which might ensure the provision
by the tenants with residential premises is linked with the
state economic and financial capacities, it needs to be noted
that the state guarantees to the tenants which are established
by laws and the legitimate expectations of the tenants that
appeared due to this imply a duty of the state to draw up a
state programme for the provision of the tenants residing in
the residential houses, parts thereof, flats subject to being
returned (already returned) to the owners with residential
premises of equal value, to provide for the funds in the state
budget, necessary for the fulfilment of the guarantees
established to the tenants. Under the Constitution, the state
must fulfil the obligation which it has undertaken. Thus, the
laws by which the state establishes the guarantees to the
tenants must be supported by material and financial resources
(Constitutional Court ruling of 12 November 1996). Otherwise,
the laws become ineffective, it is impossible to make use of
them. Hence, the confidence of the person in the state and law
is shattered, preconditions are created to violate human rights
as well as the constitutional principle of a state under the
rule of law, and to disregard the imperative of an open, just,
harmonious civil society, which is entrenched in the
Constitution.
19. On 15 January 2002, the Seimas adopted the Law on the
Amendment and Supplement of Articles 2, 8, 12, 15, 16, 18, 20,
and 21 of the Law on the Restoration of the Rights of Ownership
of Citizens to the Existing Real Property; on 29 October 2002,
the Law on the Amendment and Supplement of the Preamble,
Articles 2, 12, 13, 15, 16, and 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property was adopted. These laws made the
amendments of the articles (paragraphs thereof) of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property which are disputed by the petitioners,
groups of members of the Seimas, the compliance whereof with
the Constitution is a matter of investigation in this case.
IV
On the compliance of the provision of Article 14 of the
Law "On the Procedure and Conditions of Restoration of the
Rights of Ownership of Citizens to the Existing Real Property"
(wording of 12 January 1993) permitting buying out of
residential houses if they are indispensable for state
necessities with Article 23 of the Constitution.
1. Article 14 of the Law "On the Procedure and Conditions
of Restoration of the Rights of Ownership of Citizens to the
Existing Real Property" (wording of 12 January 1993) used to
provide:
"Residential houses shall be bought out (compensated for)
by the State from persons specified in Article 2 of this Law in
the procedure established in Article 16 of this law, provided
they are indispensable for State necessities or if:
1) they have been expanded, rebuilt, or reconstructed into
non-residential premises and have been given to scientific,
medical, cultural, educational or communications
establishments;
2) it is a wooden residential house which has been
substantially improved, or if the house has been augmented,
rebuilt, or reconstructed, thereby increasing the gross floor
area by more than 1/3, in a manner which makes it impossible to
separate the additional gross floor area from the original
one."
2. The petitioner, the Kaunas Regional Court, had doubts
as to whether the provision of the provision of the said
article under which the state is permitted to buy out
residential houses from the persons specified in Article 2 of
the Law "On the Procedure and Conditions of Restoration of the
Rights of Ownership of Citizens to the Existing Real Property"
(wording of 12 January 1993) provided they are indispensable
for state necessities was not in conflict with Article 23 of
the Constitution.
3. Article 23 of the Constitution provides:
"Property shall be inviolable.
The rights of ownership shall be protected by laws.
Property may only be seized for the needs of society in
accordance with the procedure established by law and shall be
justly compensated for."
4. The inviolability and protection of ownership
entrenched in Article 23 of the Constitution mean that the
owner has the right to possess, use and dispose of the property
that belongs to him, also the right to demand that other
persons not violate his rights, while the state has a duty to
defend and safeguard ownership from unlawful encroachment upon
it (Constitutional Court ruling of 19 September 2002).
5. Under the Constitution, the right of ownership is not
absolute, it may be restricted by law in connection with the
nature of an object of property, deeds committed against law
and/or a need which is necessary for society and which is
constitutionally justified (Constitutional Court rulings of 13
December 1993, 6 October 1999, 19 September 2002).
6. While restricting the right of ownership, in all cases
one must follow these conditions: the right of ownership is
restricted by law only; the restrictions are necessary in a
democratic society in attempt to protect the rights and
freedoms of other persons, the values entrenched in the
Constitution and/or constitutionally important objectives; one
follows the proportionality principle under which the measures
provided for in laws must be in line with the sought objectives
which are necessary to society and which are constitutionally
justified (Constitutional Court ruling of 19 September 2002).
Under the Constitution, it is not permitted to deny the essence
of the right of ownership by any restriction of the right of
ownership. In its ruling of 18 April 1996, the Constitutional
Court held that if a right were limited so that it becomes
impossible to implement it, that if the right were restricted
so that reasonable limits were exceeded, or its legal
protection were not ensured, in that case there would be
grounds to assert that the fundamentals themselves of such a
right are violated, which would be equivalent to the denial of
this right.
7. Under Article 23 of the Constitution, property may be
seized from the owner only when it is necessary for the needs
of society and when it is justly compensated; property may only
be seized for the needs of society and shall be justly
compensated only in accordance with the procedure established
by law. In its ruling of 2 April 2001, the Constitutional Court
held that the needs of society indicated in Paragraph 3 of
Article 23 of the Constitution, for which property may be
seized according to the procedure established by law and must
be adequately compensated for, are interests of either the
whole or part of society, which the state, while implementing
its functions, is constitutionally obligated to secure and
satisfy; when property is seized for the needs of society, one
must strive for the balance between various legitimate
interests of society and its members; the needs of society, for
which property is seized, are always particular and clearly
expressed needs of society for a concrete object of property;
it is permitted to seize property (by adequately compensating
for) only for such public needs which would not be objectively
met if a certain concrete object of property were not seized;
the person whose property is being seized for the needs of
society has the right to demand that the established
compensation be equivalent in value for the property seized.
8. It needs to be noted that seizure of property for the
needs of society is linked in the Constitution not with who
will receive the seized property but with the objectives of the
seizure of property: to use the item in the interests of
society, for the socially important objectives which can only
be achieved by making use of the individual features of a
particular item seized.
Thus, it is impossible to construe the formula "needs of
society" of Paragraph 3 of Article 23 of the Constitution as in
all cases prohibiting to seize property and transfer it for
private ownership. The question of whether property is seized
for the needs of society is not determined by what subject (the
state, municipality, legal or natural person) will subsequently
become the owner of this property but by the fact whether the
property seized from the owner was really seized because it was
necessary to satisfy the needs of society, i.e. socially
important objectives, which can only be achieved by making use
of the particular property seized.
It needs to be noted that when property is seized for the
needs of society, the legislator, irrespective of the fact what
subject (the state, municipality, legal or natural person)
becomes the owner of this property, has a duty to establish the
legal regulation ensuring that the said property be used for
the needs of society in reality.
9. While deciding whether property is seized for the needs
of society, one is to take account of the fact that needs of
society are not a static phenomenon. The needs that at a
certain stage of development of society and the state were
regarded as needs of society may be considered to be not in
line with the constitutional concept of the needs of society at
a different stage of development of society and the state, and
vice versa. While taking account of the fact as to what
socially important objectives are sought at the moment of
seizure of particular property, one has to decide each time on
an individual basis whether the needs for which property is
seized are those of society.
10. The seizure of property provided for in Paragraph 3 of
Article 23 of the Constitution is understood "as an individual
decision concerning seizure of private property held as private
ownership which is made in every concrete case according to the
procedure established by laws" (Constitutional Court ruling of
18 June 1998). The constitutional formula "property may <...>
be seized for the needs of society" means that seizure of
property is linked with particular socially important
objectives. Under Paragraph 3 of Article 23 of the
Constitution, the state has a duty to establish, by laws, the
procedure of seizure of property whereby the right of the owner
to know in advance for which particular needs the property is
seized must be ensured.
11. It also needs to be noted that, while adopting a
decision on seizure of property for the needs of society, at
the same time one must establish the amount of compensation for
the property seized, also, one must establish a procedure
according to which the owner will be compensated for the
property seized. The state or municipal institution specified
by law that has the right to adopt the decision on seizure of
property for the needs of society, has a duty to inform the
owner in advance (before the decision is taken) about the
intention to seize his property for the needs of society, also,
as to the procedure of the compensation for the property. The
institution intending to adopt a decision on the seizure of
property and the owner from whom one intends to seize his
property must seek agreement on the compensation for the
property seized as well as on the procedure of the compensation
for the property. If the dispute arises on whether the property
is seized for the needs of society or whether it is justly
compensated for, it must be settled in court. Until the
agreement is reached on the compensation for the property
seized or until the dispute is not settled by court, the
property may not be seized from the owner.
12. While interpreting the content of Article 23 of the
Constitution in the context of the restoration of the rights of
ownership to the existing real property, the Constitutional
Court has held for more than once that although the legislator
enjoys certain discretion to establish the conditions and
procedure of restoration of the right of ownership, however,
when doing so, he must take account of the constitutional
principles of protection of the right of ownership.
It needs to be noted that it is impossible to identify the
buying out of the existing real property from the citizens to
whom the right of ownership is restored with the seizure of
property from the owner for the needs of society.
The Constitutional Court has noted that until his property
is restored or he is paid an appropriate compensation for it,
the subjective rights of the former owner to a specific
property are not restored yet; the legal meaning of the
decision of the institution authorised by the state to restore
property in kind or compensate for it is that only from this
proper moment the former owner acquires the rights of ownership
to such property (Constitutional Court ruling of 27 May 1994);
until respective state institutions have not adopted a decision
on the restoration of the rights of ownership, in reality such
persons do not enjoy the subjective rights to the property
which earlier belonged to them (Constitutional Court ruling of
18 June 1998).
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 rulings of 27 October 1998 and 16
March 1999).
It also needs to be noted that, while establishing the
conditions and procedure for the restoration of the rights of
ownership to the existing real property, the legislator must
take account not only of the constitutional principles of
ownership protection: the legislator is also bound by the duty
to protect the other values entrenched in the Constitution,
inter alia the striving for an open, harmonious and just civil
society. In the context of the case at issue, it is noteworthy
that if there is not any opportunity to return the existing
real property in kind, just compensation also ensures the
restoration of the rights of ownership (Constitutional Court
rulings of 27 May 1994, 22 December 1995, 18 June 1998).
While deciding whether the compensation for the existing
real property which has not been returned in kind is a just
one, one has to take account of the fact that it was not the
State of Lithuania that unlawfully nationalised or disseized in
other unlawful ways the property of the owners. The State of
Lithuania, while striving to restore justice in part at least,
i.e. to restore the violated rights of ownership, chose
restricted restitution but not restitutio in integrum. The
restoration of justice when the owners are compensated for the
existing real property which has not been returned in kind has
two sides: it is justice in regard of the owner as well as the
entire society. The unlawful actions of the occupation
government inflicted enormous damage not only on the owners
whose rights of ownership were denied but also on the whole
society and the entire state. While restoring justice in regard
of the owners, one cannot ignore justice in regard of the
entire society whose members are also the owners as well. In
the process of the restoration of the rights of ownership one
must strive for a balance between the persons whose rights are
being restored and the interests of the entire society.
It has been mentioned that the state chose restricted
restitution but not restitutio in integrum. The rights of
ownership of citizens are restored not to the entire property
which was unlawfully nationalised and disseized by other
unlawful ways, but to the existing real property.
While deciding whether compensation for the existing real
property which has not been returned in kind is a just one, one
has to take account of not only the present market value of the
property not returned in kind but also of the value of the
property at the time when it was unlawfully nationalised or
disseized by other unlawful ways, also, of the changes in
quality and value of the property. The state cannot establish
the ways and amounts of compensation which would be financially
unbearable for society and the state, which would set a
disproportionately big financial burden for the society, which
would cause social tensions and disagreement. Otherwise, the
constitutional imperative of a harmonious and just society
would be violated.
It needs to be noted that all disputes whether it is
justly compensated for the property not returned in kind must
be settled in court.
It also needs to be noted that just compensation for the
property which was unlawfully nationalised or disseized in
other unlawful ways may not be identified with just
compensation for the property seized for the needs of society:
when property for the needs of society is seized under Article
23 of the Constitution, just compensation for it is that of
equal value for the property seized.
13. The Kaunas Regional Court, the petitioner, grounds its
doubts as to the compliance of whether the provision of Article
14 of the Law "On the Procedure and Conditions of Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property" (wording of 12 January 1993) under which the state is
permitted to buy out residential houses from the persons
specified in Article 2 of the same law provided they are
indispensable for state necessities with Article 23 of the
Constitution on the fact that the notion "state necessities"
employed in the said law and the notion "needs of society"
employed in Article 23 of the Constitution are not identical in
their content.
14. While construing the content of the notion "state
necessities", one has to take account of the historical legal
context of its consolidation in the Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 12 January
1993).
It needs to be noted that the notion "state necessities"
is employed not only in this law but also in other laws adopted
in the laws of the Republic of Lithuania soon after the
restoration of the independence of the state: the Law on
Budgeting, the Law on Science and Studies, the Law on Land etc.
In the laws one also employed the notions "interests of
Lithuania", "state interests", "interests of the state and
society". Article 46 of the Provisional Basic Law, which
regulated the nationalisation, subject to compensation, of
property of citizens or their groups, also employed the notion
"interests of Lithuania".
The legal terminology characteristic of that period is to
be interpreted as reflecting peculiarities of the restoration
and consolidation of the statehood at that stage of development
of society and the state, but not as expressing a certain
priority of the state over society.
15. In the context of the case at issue, one is to note
that, while discharging its functions, the state as the
organisation of the entire society, must act in the interests
of society. In this aspect the state necessities are
inseparable from the interests of society and must correspond
to them. Thus, needs of society, for which property may be
seized according to the procedure established by law and must
be adequately compensated for indicated in Paragraph 3 of
Article 23 of the Constitution are interests of either the
whole or part of society which the state, while discharging its
functions, is constitutionally obligated to secure and satisfy
(Constitutional Court rulings of 2 April 2001, 10 May 2002, 19
September 2002). Thus, the said needs of society are state
necessities at the same time.
One is also to note that the notion "state necessities",
depending on the context, may be construed not only in its
broad sense, which is the ensuring of proper discharging of all
functions of the state as the organisation of the entire
society, but also in its narrow sense, which is necessities to
ensure the activities of state institutions (state apparatus).
However, the construction of the content of this notion must be
based on the provision that the state (its institutions) must
act in the interests of society, therefore the ensuring of the
conditions of activities of state institutions in discharging
their functions in the interests of society is also a need of
society. Therefore, it is impossible to construe the notion
"state necessities", even while understanding it in its narrow
meaning, as being inconsistent, in itself, with the notion
"needs of society" entrenched in Article 23 of the
Constitution.
16. Thus, the legislator, while enjoying the discretion to
establish the conditions and procedure for the restoration of
the right of ownership, was also permitted to establish, by
law, that the residential houses shall be bought out by the
state if they are indispensable for state necessities.
17. Taking account of the arguments set forth, one is to
conclude that the provision of Article 14 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) permitting the state to buy out the
residential houses from the persons specified in Article 2 of
this law provided they are indispensable for state necessities
was not in conflict with Article 23 of the Constitution.
V
On the compliance of Government Resolution No. 27 "On the
Buying Out of the Residential Houses Which are Indispensable
for State Necessities" of 17 January 1994 to the extent that it
confirmed that the residential house at Vytauto Ave. 27,
Kaunas, was indispensable for state necessities and was to be
bought out with Article 23 of the Constitution and the
provision of Article 14 of the Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 12 January
1993) permitting the state to buy out the residential houses
which are indispensable for state necessities.
1. On 17 January 1994, the Government adopted Resolution
No. 27 "On the Buying Out of the Residential Houses Which are
Indispensable for State Necessities" in which it was
established:
"Conforming to Republic of Lithuania Law No. I-44 'On the
Amendment of the Law "On the Procedure and Conditions of
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property"' adopted on 12 January 1993, also,
taking account of the request of Kaunas city and Panevėžys city
boards and the proposals of the commission formed following
Government of the Republic of Lithuania Order No. 803p 'On the
Commission for the Issues of Rent and Distribution of
Non-residential Buildings, Facilities and Premises' of 24
November 1993, the Government of the Republic of Lithuania
resolves:
To confirm that the residential houses at V. Putvinskio
St. 70, Seredžiaus St. 4, Vytauto Ave. 27, Kaunas, and at
Respublikos St. 23a, Panevėžys, are indispensable for state
necessities and are to be bought out under procedure
established in Government of the Republic of Lithuania
Resolution No. 470 'On the Implementation of the Republic of
Lithuania Law "On the Procedure and Conditions of Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property"' of 15 November 1991 (Official Gazette Valstybės
žinios, 1992, No. 4-74; 1993, No. 17-440)."
2. The petitioner, the Kaunas Regional Court, had doubts
whether the said Government resolution to the extent that it
confirms that the residential house at Vytauto Ave. 27, Kaunas,
is indispensable for state necessities and is to be bought out
is not in conflict with Article 23 of the Constitution and the
provision of Article 14 of the Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 12 January
1993) permitting the state to buy out the residential houses
which are indispensable for state necessities.
3. While deciding whether the disputed provision of the
Government resolution is not in conflict with Article 23 of the
Constitution and the provision of Article 14 of the said law
(wording of 12 January 1993) permitting the state to buy out
the residential houses which are indispensable for state
necessities, one is to note that the said Government
resolution, as pointed out in the resolution itself, was
adopted conforming to the 12 January 1993 Law "On the Amendment
of the Law 'On the Procedure and Conditions of Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property'" whereby Article 14 of the Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 18 June
1991) was inter alia amended. Thus, as it is possible to judge
from the case material, at the time of the adoption of the
Government resolution the provision of which is being disputed,
one followed Article 14 of the Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 12 January
1993).
4. As it has been mentioned, Article 14 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) used to provide:
"Residential houses shall be bought out (compensated for)
by the State from persons specified in Article 2 of this Law in
the procedure established in Article 16 of this law, provided
they are indispensable for State necessities or if:
1) they have been expanded, rebuilt, or reconstructed into
non-residential premises and have been given to scientific,
medical, cultural, educational or communications
establishments;
2) it is a wooden residential house which has been
substantially improved, or if the house has been augmented,
rebuilt, or reconstructed, thereby increasing the gross floor
area by more than 1/3, in a manner which makes it impossible to
separate the additional gross floor area from the original
one."
5. It needs to be noted that it is impossible to construe
the legal regulation established in Article 14 of the Law "On
the Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) separately from the legal regulation
established in Paragraph 2 of Article 8 of the same law. Under
Paragraph 2 of Article 8 of the said law, the procedure and
terms of the returning of residential houses (or parts thereof)
shall be established by the Government on the basis inter alia
of the provision that the residential houses are returned when
they have been reconstructed into non-residential premises
(Item 1).
While comparing the legal regulation established in
Articles 8 and 14 of the Law "On the Procedure and Conditions
of Restoration of the Rights of Ownership of Citizens to the
Existing Real Property" (wording of 12 January 1993), it is
clear that the residential houses (parts thereof), if they are
indispensable for state necessities, may be returned not in
kind but bought out even when they have been reconstructed into
non-residential premises. Under the said law (wording of 12
January 1993), the issue of returning of such houses (parts
thereof) in kind may have been decided in all cases, while
taking account of whether they were indispensable for state
necessities.
6. It has been held in this Ruling of the Constitutional
Court that the provision of Article 14 of the said law (wording
of 12 January 1993) permitting the state to buy out the
residential houses from the persons specified in Article 2 of
this law provided they are indispensable for state necessities
was not in conflict with Article 23 of the Constitution.
In the context of the case at issue, one is to note that
it is not permitted to oppose the notion "state necessities"
employed in the said law against the notion "needs of society"
employed in the Constitution.
7. While establishing the legal regulation of the buying
out of the residential houses from the citizens to whom the
rights of ownership are restored in Article 14 of the Law "On
the Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993), the legislator also directly indicated the
conditions under which the residential houses are bought out.
One of such conditions provided for in the law was the fact
that the residential houses are indispensable for state
necessities. The law did not point out as to the nature of
state necessities for which the residential houses were
permitted not to be returned in kind and were to be bought out.
The Constitutional Court has held that the notion "buying
out" employed in the said law (wording of 12 January 1993)
means the competence of the authorised state institutions to
adopt a decision, provided there are respective conditions
established in the law, not to return the existing real
property to the person to whom the rights of ownership are
restored (Constitutional Court rulings of 27 May 1994, 8 March
1995); if there is not any possibility to return the existing
real property in kind, just compensation also ensures the
restoration of the rights of ownership (Constitutional Court
rulings of 27 May 1994, 22 December 1995, 18 June 1998).
It needs to be noted that the Government, when the
residential houses subject to being returned were indispensable
for state necessities, enjoyed the competence to adopt a
decision on their buying out. Whether the necessities under
which the houses subject to being returned were to be bought
out were state necessities had to be decided on an individual
basis, while taking account of the fact as to what socially
important objectives were being sought by the particular buying
out at the particular period.
8. While deciding the question of whether the disputed
provision of the Government resolution is not in conflict with
Article 23 of the Constitution and the provision of Article 14
of the Law "On the Procedure and Conditions of Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property" (wording of 12 January 1993) permitting the state to
buy out the residential houses which are indispensable for
state necessities, it is important to elucidate as to the
purpose of the decision taken to recognise the residential
house at Vytauto Ave. 27, Kaunas, to be indispensable for state
necessities.
9. It needs to be noted that the Government resolution of
17 January 1994 does not directly indicate as to what
particular state necessities as needs of society the
residential house at Vytauto Ave. 27, Kaunas, is to be bought
out, however, it is clear from the 20 October 1993 request of
the Kaunas City Board (mentioned in the said Government
resolution) which is attached to the case as well as from other
material of this case that the said building was needed for the
activities of the editorial office of the newspaper "Kauno
diena", which was renting the said building at the time of the
adoption of the Government resolution in question.
It is also clear from the case material that the
residential house at Vytauto Ave. 27, Kaunas, had undergone
major repairs in 1987 and had been fitted to the work of the
newspaper editorial board. Pursuant to the said Government
resolution and the 17 February 1994 Seimas Resolution "On the
Supplement of Item 8 of Republic of Lithuania Supreme Council
Resolution 'On the Entry into Effect of the Law on Initial
Privatisation of State-owned Property'", the Board of Kaunas
City by Ordinance No. 709-v "On the Transfer of the Building at
Vytauto Ave. 27" of 19 May 1994 transferred this building to
the balance of the close company "Kauno diena". Thus, the said
building, after it had been decided to buy it out, was
transferred to the necessities of the editorial board of the
daily. It has been used for the purpose mentioned.
Thus, by the said resolution the Government recognised
that the building must be bought out so that the further
activity of the editorial board of the daily "Kauno diena"
would be ensured.
10. One must pay attention to the fact that the
Government, on the grounds of the powers granted to it by law
and while adopting the decision stating that the residential
house at Vytauto Ave. 27, Kaunas, is indispensable for state
necessities as needs of society, did not point out any
particular reasons for such a decision. However, one is to note
that the said building was used for the purposes for which it
had been bought out, i.e. to ensure further activities of the
editorial board of the daily "Kauno diena". A mere fact that
the Government resolution the provision of which is challenged
in this case does not point out particular arguments regarding
the indispensability of the building at Vytauto Ave. 27,
Kaunas, for the state necessities as needs of society does not
constitute grounds to recognise the disputed provision of the
Government resolution to be in conflict with Article 23 of the
Constitution and the provision of Article 14 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) permitting the state to buy out the
residential houses which are indispensable for state
necessities.
11. While deciding whether the disputed provision of the
Government resolution is not in conflict with Article 23 of the
Constitution and the provision of Article 14 of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording
of 12 January 1993) permitting the state to buy out the
residential houses which are indispensable for state
necessities, and, while taking account of the fact that, by
buying out of the residential house at Vytauto Ave. 27, Kaunas,
one attempted to ensure further activities of the editorial
board of the daily "Kauno diena", it is important to elucidate
whether the said purpose is to be treated as a state necessity,
i.e. need of society, at the said concrete time period.
12. Laws of a democratic state establish and protect not
only the subjective human right to have and freely express
convictions but also freedom of information as an objective
need of society. It means that not only freedom of information
in general has to be protected but also freedom of means of
mass information as the expression of freedom of information in
its objective form (Constitutional Court ruling of 20 April
1995). In its ruling of 23 October 2002, the Constitutional
Court held that the Constitution guarantees and safeguards the
interest of the public to be informed, that the freedom of the
media stems from the Constitution, and that the legislator has
a duty to establish the guarantees of the freedom of the media
by law.
13. It has been mentioned that needs of society are not a
static phenomenon; their content is subject to change at
various stages of social life. It has been held in this ruling
of the Constitutional Court that the needs that at a certain
stage of development of society and the state were regarded as
needs of society may be considered to be not in line with the
constitutional concept of the needs of society at a different
stage of development of society and the state, and vice versa.
14. Upon the restoration of the independence of the
Republic of Lithuania, the consolidation of freedom of
information and, in particular, that of the media, was of
utmost importance to the society which had lived under the
conditions of the occupation totalitarian regime, therefore the
ensuring of the material conditions to operate for independent
media of information of society was an objective social need at
that stage of development of society, since this was an
essential precondition of consolidation of democracy.
14.1. It needs to be noted, that soon after the
restoration of the independence of the Republic of Lithuania,
one adopted legal acts whereby it was attempted to create
preconditions for the activities of independent media.
While creating the preconditions for the activities of
independent media, the 7 November 1991 Republic of Lithuania
Law "On the Seizure of Property of the CPL (CPSU) and That of
Other Former Communist Organisations" was of importance, in
which it was inter alia established that "the property of the
CPL (CPSU) illegally operating in the territory of the Republic
of Lithuania, also of the CPL and the Komsomol shall be
gratuitously seized as property of the Republic of Lithuania".
The law commissioned the Government to take over such property.
Implementing the aforementioned law, on 6 December 1991, the
Government adopted Resolution No. 534 "On the Former CPL
(CPSU), CPL Organs (Town and District Newspapers)". The said
Government resolution inter alia resolved to grant the right to
the editorial boards of the former CPL (CPSU), CPL organs (town
and district newspapers), upon the decision of their general
meetings, "to take over the rights of the founder and publisher
and to split the former property of the CPL (CPSU), CPL (save
the right of ownership to the buildings) into shares, which are
to be distributed among the permanent employees in equal
parts".
14.2. In the context of the case at issue, it also needs
to be noted that at the time of the adoption of the Government
resolution the provision of which is disputed in the case at
issue, the editorial boards of most of the periodicals were
renting premises belonging to the sphere regulated by the
state. Taking account of the importance of the independent
media, for the development of a democratic society it was
necessary to ensure freedom of further activities of
information media of society. On 17 February 1994, the Seimas
adopted the Resolution "On the Supplement of Item 8 of Republic
of Lithuania Supreme Council Resolution 'On the Entry into
Effect of the Law on Initial Privatisation of State-owned
Property'" whereby preconditions were created for the
publishing houses and editorial boards of independent
periodicals which were establishing themselves at that time to
acquire the rented (or otherwise lawfully used) premises.
Implementing this resolution of the Seimas, by its
Resolution No. 571 "On the Privatisation of the State-owned
Property of Publishing Houses of Periodicals (Newspapers,
Magazines), Premises of Editorial Boards of Periodicals Which
Rent (or Otherwise Actually Lawfully Use) the Premises Assigned
to the Sphere Regulated by the State" the Government confirmed
the list of publishing houses of periodicals (newspapers,
magazines), premises of editorial boards of periodicals, which
are privatised conforming to the procedure established in the
first section of Item 8 of Republic of Lithuania Supreme
Council Resolution "On the Entry into Effect of the Law on
Initial Privatisation of State-owned Property", into which it
included publishing houses and premises of editorial boards of
periodicals, among them the premises of the editorial board of
the daily "Kauno diena", which rented the building at Vytauto
Ave. 27, Kaunas.
14.3. The provision of publishing houses and editorial
boards of periodicals with premises at that time pointed to the
resolute attempt by the state to ensure the material conditions
of the activities of independent media that were establishing
themselves at that time. In this context, the buying out of the
residential house at Vytauto Ave. 27 , Kaunas, was assessed at
that time period as guaranteeing the activity of an independent
medium of mass communication, and, due to this, as means of
ensuring a particular state necessity, i.e. as a need of
society.
15. In the context of the case at issue, one is to note
that a mere circumstance that the property seized is given to
non-governmental establishment or organisation does not mean in
itself that no public need exists for the seizure of such
property. It has been held in this Ruling of the Constitutional
Court that while deciding the question of whether property is
seized for the needs of society is determined not what subject
(the state, municipality, legal or natural person) will
subsequently become the owner of this property but whether the
property seized from the owner was really seized because it was
necessary to satisfy the needs of society, i.e. socially
important objectives which can only be achieved by making use
of the particular property seized. As mentioned, by the said
resolution the provision whereof is being disputed, the
Government recognised that the building must be bought out so
that the further activity of the editorial board of the daily
"Kauno diena" would be ensured.
16. One must also pay attention to the fact that, as
mentioned, the residential house at Vytauto Ave. 27, Kaunas,
had undergone major repairs in 1987 and had been fitted to the
work of the newspaper editorial board. Meanwhile, in Government
Resolution No. 27 "On the Buying Out of the Residential Houses
Which are Indispensable for State Necessities" of 17 January
1994 the said building is referred to as a residential house.
While the issue is decided whether the disputed provision
of the Government resolution of 17 January 1994 is not in
conflict with Article 23 of the Constitution and the provision
of Article 14 of the Law "On the Procedure and Conditions of
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property" (wording of 12 January 1993) permitting
the state to buy out the residential houses which are
indispensable for state necessities, the issue is of essential
importance as to what purpose, i.e. for what state necessities
as needs of society this building at a concrete time period was
necessary, but not as to whether the building at Vytauto Ave.
27, Kaunas, is a residential house the purpose of which as a
residential house had not been changed or whether it had been
reconstructed into non-residential premises. It has been held
in this Ruling of the Constitutional Court that the buying out
of the aforesaid building was assessed at that time period as
guaranteeing the activity of an independent medium of mass
communication, and, due to this, as means of ensuring a
particular state necessity, i.e. as a need of society.
Thus, in itself the circumstance that Government
Resolution No. 27 "On the Buying Out of the Residential Houses
Which are Indispensable for State Necessities" of 17 January
1994 refers to the building at Vytauto Ave. 27, Kaunas, as a
residential house although it underwent major repairs and was
fitted to the work of the editorial board of the newspaper does
not constitute grounds to recognise the said provision of the
Government resolution of 17 January 1994 to be in conflict with
Article 23 of the Constitution and the provision of Article 14
of the Law "On the Procedure and Conditions of Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property" (wording of 12 January 1993) permitting the state to
buy out the residential houses which are indispensable for
state necessities.
17. Taking account of the arguments set forth, one is to
conclude that Government Resolution No. 27 "On the Buying Out
of the Residential Houses Which are Indispensable for State
Necessities" of 17 January 1994 to the extent that it confirmed
that the residential house at Vytauto Ave. 27, Kaunas, was
indispensable for state necessities and was to be bought out is
not in conflict with Article 23 of the Constitution and the
provision of Article 14 of the Law "On the Procedure and
Conditions of Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 12 January
1993) permitting the state to buy out the residential houses
which are indispensable for state necessities.
VI
On the compliance of Paragraph 1 of Article 2 of the Law
on the Restoration of the Rights of Ownership of Citizens to
the Existing Real Property (wording of 15 January 2002) to the
extent that it no longer contains the provision which used to
be in Item 5 (wording of 13 May 1999) of the same paragraph,
under which it used to be established that the rights of
ownership to the real property were to be restored to the
citizens of the Republic of Lithuania to whom the property had
been transferred by testament (house testament) or agreements
(of purchase and sale, gift, or by another written document)
while disregarding the form and procedure established by the
law, also the citizens, who had been bequeathed property by
testament by successors to the rights of the property, with
Articles 23 and 29 of the Constitution and the constitutional
principle of a state under the rule of law.
1. The petitioner, a group of members of the Seimas, in
its petition of 24 January 2002 requests to investigate whether
Paragraph 1 of Article 2 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 15 January 2002) is not in conflict with Article 23
of the Constitution, since it no longer contains the norm which
used to be in Item 5 of Paragraph 1 of Article 2 (wording of 13
May 1999) of the said law under which it used to be established
that the rights of ownership to the real property were to be
restored to the citizens of the Republic of Lithuania to whom
the property had been transferred by testament (house
testament) or agreements (of purchase and sale, gift, or by
another written document) while disregarding the form and
procedure established by the law, also the citizens, who had
been bequeathed property by testament by successors to the
rights of the property.
2. Under Item 5 of Paragraph 1 of Article 2 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 13 May 1999), "the rights of
ownership to the real property specified in Article 3 of this
Law shall be restored to the citizens of the Republic of
Lithuania to whom the property was transferred by testament
(house testament) or agreements (of purchase and sale, gift, or
by another written document) while disregarding the form and
procedure established by the law, also the citizens, who were
bequeathed property by testament by successors to the rights of
the property. These citizens (willing to restore their rights
of ownership) must apply to court on the establishment of the
juridically significant fact."
3. Paragraph 1 of Article 2 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording 15 May 2002) provides:
"The rights of ownership to the real property specified in
Article 3 of this Law shall be restored to the citizens of the
Republic of Lithuania:
1) owner of the property;
2) persons who have been bequeathed by testament the
property by the deceased owner of the property irrespective of
the fact that the testament does not contain the data as to the
fact of the bequeathal of land or other real property, while in
case of the their death-to their spouse, parents
(foster-parents), children (adopted children) or spouses and
children of the said persons;
3) the spouse, parents (foster parents), children (adopted
children), if these persons are citizens of the Republic of
Lithuania, of the deceased owner of the property who did not
draw up his will or emigrated abroad during the occupation
years (1939-1990) and there, losing the citizenship of the
Republic of Lithuania, adopted the citizenship of another
country-to the part of the existing real property falling to
their share;
4) the spouse, children (adopted children) of a deceased
child (adopted child) of the owner of the property-to the part
of the existing real property falling to the share of the
deceased;
5) whose property was not sold by auction or mortgaged
prior to the 15 June 1940 occupation."
4. Under Item 5 of Paragraph 1 of Article 2 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 13 May 1999), the rights of
ownership to the real property specified in Article 3 of the
said law shall be restored to the citizens of the Republic of
Lithuania to whom the property was transferred by testament
(house testament) or agreements (of purchase and sale, gift, or
by another written document) while disregarding the form and
procedure established by the law, also the citizens, who were
bequeathed property by testament by successors to the rights of
the property. Thus, under the said norm, irrespective of the
fact whether or not one followed the procedure of property
transfer established in the laws effective during the time of
the occupation, citizens of the Republic of Lithuania or
successors to their rights enjoyed the right to the restoration
of their rights of ownership. After Item 5 of Paragraph 1 of
Article 2 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
13 May 1999) had been amended by Paragraph 1 of Article 1 of
the 15 January 2002 Law on the Amendment and Supplement of
Articles 2, 8, 12, 15, 16, 18, 20, and 21 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, the aforementioned norm was abolished
and the legal regulation was changed.
After the said norm of Item 5 of Paragraph 1 of Article 2
of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 13 May 1999)
had been abolished, the legal situation was created when the
citizens of the Republic of Lithuania who had been transferred
property by house testament or agreements (of purchase and
sale, gift, or by another written document), also the citizens,
who had been bequeathed property by testament by successors to
the rights of the property, lost their rights to restore their
rights to the existing real property specified in the law.
5. It needs to be noted that upon unlawful nationalisation
or disseizin in other unlawful ways of citizens' property,
their rights of ownership were discontinued; the owners whose
property was nationalised or disseized in other unlawful ways
could not legally dispose of their property under the laws
effective during the occupation years, they inter alia could
not express their will creating legal effects as to the
transfer of the property to another person. Under the laws of
the occupation government, even the will expressed in the
objective form of the owner of the property unlawfully
nationalised or disseized in other unlawful ways regarding
transfer of the rights of ownership to the said property would
not cause any legal effects. The transactions of the owners
regarding transfer of the rights of ownership to the property
unlawfully nationalised or disseized in other unlawful ways
could not be confirmed with the notary and legally registered;
the said transactions used to be concluded while disregarding
the obligatory notarial form established for real property
transactions and would not be legally registered. The owners of
the property unlawfully nationalised or disseized in other
unlawful ways did not enjoy a legal opportunity to transfer
this property by testament.
6. The legislator, upon the supplement of Paragraph 1 of
Article 2 of Law on the Restoration of the Rights of Ownership
of Citizens to the Existing Real Property (wording of 1 July
1997), by the Law on the Amendment and Supplement of Articles
2, 4, 5, 10, 12, 13, 15, 16, 18, 20, and 21 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property adopted on 13 May 1999, with Item 5
under which the rights of ownership to the real property
specified in Article 3 of the said law shall be restored to the
citizens of the Republic of Lithuania to whom the property was
transferred by testament (house testament) or agreements (of
purchase and sale, gift, or by another written document) while
disregarding the form and procedure established by the law,
also the citizens, who were bequeathed property by testament by
successors to the rights of the property, took account of the
will of the owners of the property unlawfully nationalised or
disseized in other unlawful ways regarding the fate of the
property unlawfully disseized.
It has been mentioned that Item 5 of Paragraph 1 of
Article 2 of the said law (wording of 13 May 1999) established
that "these citizens (willing to restore their rights of
ownership) must apply to court on the establishment of the
juridically significant fact".
Thus, under Item 5 of Paragraph 1 of Article 2 the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 13 May 1999), the right to
the restoration of the rights of ownership is also created by
transactions, which were drawn up in writing, while
disregarding the form and procedure established by law, of
transfer of the property unlawfully nationalised or disseized
in other unlawful ways; under Item 5 of Paragraph 1 of Article
2 the law, the fact of transfer of property by written
transaction drawn up while disregarding the from and procedure
established by law, which is juridically significant in the
restoration of the rights of ownership, is established only by
judicial procedure.
7. It has been held in this Ruling of the Constitutional
Court that the legislator enjoys the discretion to establish
the conditions and procedure of restoration of the rights of
ownership to the existing real property, and that, while doing
so, one must take account of the constitutional principles of
the right of ownership.
It also needs to be noted that the Constitution guarantees
the right to succession, and that, under the Constitution,
there may not be any established legal regulation which might
deny the will of a testator to leave his property as
inheritance to other persons (Constitutional Court ruling of 4
March 2002).
8. After Paragraph 1 of Article 1 of the Law on the
Amendment and Supplement of Articles 2, 8, 12, 15, 16, 18, 20,
and 21 of the Law on the Restoration of the Rights of Ownership
of Citizens to the Existing Real Property had amended Item 5 of
Paragraph 1 of Article 2 (wording of 13 May 1999) of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property so that the norm which used to be in the
latter was abolished which used to stipulate that the rights of
ownership to the real property specified in Article 3 of this
law were to be restored to the citizens of the Republic of
Lithuania to whom the property had been transferred by
testament (house testament) or agreements (of purchase and
sale, gift, or by another written document) while disregarding
the form and procedure established by the law, also the
citizens, who had been bequeathed property by testament by
successors to the rights of the property, the said citizens, as
mentioned, lost their right to restore their rights of
ownership to the real property specified in the law.
Such legal regulation disregards the constitutional
principles of the protection of the right of ownership and thus
Article 23 of the Constitution is violated.
9. Taking account of the arguments set forth, one is to
conclude that Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) to the
extent that it no longer contains the provision which used to
be in Item 5 (wording of 13 May 1999) of the same paragraph,
under which it used to be established that the rights of
ownership to the real property were to be restored to the
citizens of the Republic of Lithuania to whom the property had
been transferred by testament (house testament) or agreements
(of purchase and sale, gift, or by another written document)
while disregarding the form and procedure established by the
law, also the citizens, who had been bequeathed property by
testament by successors to the rights of the property, is in
conflict with Article 23 of the Constitution.
10. The petitioner, a group of members of the Seimas,
requests in its petition of 24 January 2002 to investigate as
to whether Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) is not in
conflict with the constitutional principle of a state under the
rule of law, since it no longer consolidates the provision
which used to be in Item 5 (wording of 13 May 1999) of the same
paragraph, under which it used to be established that the
rights of ownership to the real property were to be restored to
the citizens of the Republic of Lithuania to whom the property
had been transferred by testament (house testament) or
agreements (of purchase and sale, gift, or by another written
document) while disregarding the form and procedure established
by the law, also the citizens, who had been bequeathed property
by testament by successors to the rights of the property.
11. The constitutional principle of a state under the rule
of law is a universal one upon which the whole Lithuanian legal
system as well as the Constitution of the Republic of Lithuania
itself are based. The content of the principle of a state under
the rule of law reveals itself in various provisions of the
Constitution and is to be construed inseparably from the
striving for an open, just, and harmonious civil society, which
is proclaimed in the Preamble to the Constitution. Along with
the other requirements, the principle of a state under the rule
of law, which is entrenched in the Constitution, also implies
that one must ensure human rights and freedoms, that all
institutions implementing state authority and other state
institutions must act on the basis of law and in compliance
with law, that the Constitution has the supreme legal power and
that all legal acts must be in conformity with the
Constitution. Inseparable elements of the principle of a state
under the rule of law are protection of legitimate
expectations, legal certainty and legal security. In case the
protection of legitimate expectations, legal certainty and
legal security were not ensured, the confidence of the person
in the state and law would not be ensured (Constitutional Court
rulings of 23 February 2000, 12 July 2001, 25 November 2002, 24
January 2003).
In its ruling of 12 July 2001, the Constitutional Court
held that one of essential elements of the principle of a state
under the rule of law established in the Constitution is the
principle of legal security, meaning the duty of the state to
ensure the certainty and stability of legal regulation, to
protect the rights of entities of legal relations, including
the acquired rights, and to respect legitimate interests and
legitimate expectations.
It needs to be noted that under the Constitution not all
expectations arising from a law or another legal act are
protected and defended but only those that arise from the
Constitution itself or the laws and legal acts that are not in
conflict with the Constitution. Only such expectations may be
regarded as legitimate, and only such legitimate expectations
are protected and defended by the Constitution.
The principle of the protection of legitimate expectations
implies the duty of the state and the institutions implementing
state authority as well as other state institutions to observe
the undertaken obligations. This principle also means the
protection of the acquired rights, i.e. persons have the right
to reasonably believe that their rights acquired under valid
laws or other legal acts which are not in conflict with the
Constitution will be retained for the established time and it
will be possible to implement them in reality. In its ruling of
18 December 2001, the Constitutional Court held that it is
impermissible to deny legitimate interests and legitimate
expectations of persons by amendments of legal regulation, that
continuance of jurisprudence must be guaranteed. In its ruling
of 12 July 2001, the Constitutional Court held that under the
principle of legitimate expectations, legal regulation may be
amended only in pursuance with an earlier established procedure
and without violating the principles and norms of the
Constitution, and that it is impermissible to deny legitimate
interests and legitimate expectations of persons by amendments
of legal regulation. While regulating the implementation of the
rights and freedoms of the person entrenched in the
Constitution, the legislator cannot deny legitimate
expectations of the person, as the principles of legal
regulation and, first of all, the constitutional principle of a
state under the rule of law, which are entrenched in the
Constitution, prohibit unreasonable aggravation of the legal
situation of a person, as well as denial of the acquired rights
and ignoring of legitimate interests of a person. In case legal
certainty, stability and protection of legitimate expectations
were denied, the constitutional principle of a state under the
rule of law would be violated. If the legal situation of a
person were unreasonably aggravated, Article 29 of the
Constitution might be violated also, which establishes equality
of rights of persons.
12. After it had been established in Item 5 Paragraph 1 of
Article 2 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
13 May 1999) that the rights of ownership to the real property
shall be restored to the citizens to whom the property was
transferred by testament (house testament) or agreements (of
purchase and sale, gift, or by another written document) while
disregarding the form and procedure established by the law,
also the citizens, who were bequeathed property by testament by
successors to the rights of the property, all citizens to whom
property was transferred by way specified in Item 5 of
Paragraph 1 of Article 2, acquired the right to restore the
rights of ownership to the said property and could reasonably
expect that provided they met the conditions established in the
law, they would be restored the rights of ownership. Upon the
abolishment of the aforesaid norm of Item 5 of Paragraph 1 of
Article 2 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
13 May 1999), the rights of part of citizens were denied to the
specified existing real property, to whom the property had been
transferred by testament (house testament) or agreements (of
purchase and sale, gift, or by another written document) while
disregarding the form and procedure established by the law,
also the citizens, who had been bequeathed property by
testament by successors to the rights of the property, while
legal certainty and stability as well as the principle of the
protection of legitimate expectations were disregarded.
Such legal regulation violated the constitutional
principle of a state under the rule of law.
13. Taking account of the arguments set forth, one is to
conclude that Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) to the
extent that it no longer contains the provision which used to
be in Item 5 (wording of 13 May 1999) of the same paragraph,
under which it used to be established that the rights of
ownership to the real property were to be restored to the
citizens of the Republic of Lithuania to whom the property had
been transferred by testament (house testament) or agreements
(of purchase and sale, gift, or by another written document)
while disregarding the form and procedure established by the
law, also the citizens, who had been bequeathed property by
testament by successors to the rights of the property, is in
conflict with the constitutional principle of a state under the
rule of law.
14. The petitioner, a group of members of the Seimas,
requests in its petition of 24 January 2002 to investigate as
to whether Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) is not in
conflict with Article 29 of the Constitution, since it no
longer contains the provision which used to be in Item 5
(wording of 13 May 1999) of the same paragraph, under which it
used to be established that the rights of ownership to the real
property were to be restored to the citizens of the Republic of
Lithuania to whom the property had been transferred by
testament (house testament) or agreements (of purchase and
sale, gift, or by another written document) while disregarding
the form and procedure established by the law, also the
citizens, who had been bequeathed property by testament by
successors to the rights of the property.
15. Article 29 of the Constitution provides:
"All persons shall be equal before the law, the court, and
other State institutions and officials.
The human being may not have his rights restricted, nor
may he be granted any privileges on the grounds of gender,
race, nationality, language, origin, social status, beliefs,
convictions, or views."
16. Article 29 consolidates the principle of equality of
all persons before the law, the court, and other state
institutions and officers. The constitutional principle of
equality of persons is a constitutional guarantee of the innate
human right to be treated in the same manner as the others are
treated. This principle obligates to apply uniform legal
assessment to homogeneous facts and prohibits to arbitrarily
assess essentially homogeneous facts in a different manner
(Constitutional Court ruling of 24 January 1996). In its
rulings the Constitutional Court has held for more than once
that this principle must be observed when passing as well as
applying laws.
17. The constitutional principle of equality of persons of
its own accord does not deny the fact that law may establish
different legal regulation concerning certain categories of
persons who are in different situations. Assessing the fact
whether different legal regulation has been reasonably
established, one must assess differences of legal situation of
categories of such persons, also whether the legal norms
establishing special conditions correspond the destination and
purpose of the legal act (Constitutional Court ruling of 13
November 1997).
18. In the context of the case at issue, it needs to be
noted that the principle of equality of persons enshrined in
Article 29 of the Constitution also means that the legislator,
while regulating the legal relations of restoration of the
rights of ownership, may not establish any legal regulation
whereby the persons who have the right to restore their rights
of ownership are treated differently, even though there are not
any such differences so that such an uneven treatment might be
objectively justified (Constitutional Court ruling of 20
November 1996).
19. It has been held in this Ruling of the Constitutional
Court that Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) to the
extent that it no longer contains the provision which used to
be in Item 5 (wording of 13 May 1999) of the same paragraph,
under which it used to be established that the rights of
ownership to the real property were to be restored to the
citizens of the Republic of Lithuania to whom the property had
been transferred by testament (house testament) or agreements
(of purchase and sale, gift, or by another written document)
while disregarding the form and procedure established by the
law, also the citizens, who had been bequeathed property by
testament by successors to the rights of the property, is in
conflict with Article 23 of the Constitution and the
constitutional principle of a state under the rule of law.
20. Under Item 5 of Paragraph 1 of Article 2 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 13 May 1999), the rights of
ownership to the real property shall be restored to the
citizens of the Republic of Lithuania to whom the property was
transferred by testament (house testament) or agreements (of
purchase and sale, gift, or by another written document) while
disregarding the form and procedure established by the law,
also the citizens, who were bequeathed property by testament by
successors to the rights of the property. After the provision
that the rights of ownership to the real property shall be
restored to the citizens of the Republic of Lithuania to whom
the property was transferred by testament (house testament) or
agreements (of purchase and sale, gift, or by another written
document) while disregarding the form and procedure established
by the law, also the citizens, who were bequeathed property by
testament by successors to the rights of the property had been
deleted from Item 5 of Paragraph 1 of Article 2 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002), part of
the persons who used to enjoy the right to restore their rights
of ownership lost the said right, although the said persons had
been transferred property by testament (house testament) or
agreements (of purchase and sale, gift, or by another written
document) while disregarding the form and procedure established
by the law, or had been bequeathed property by testament by
successors to the rights of the property. By such legal
regulation the persons seeking restoration of their rights of
ownership are treated differently, although there are no such
differences between these persons so that such treatment might
be objectively justified.
Thus, by such legal regulation one disregarded the
principle of equality of all persons before the law, which is
established in Article 29 of the Constitution.
21. Taking account of the arguments set forth, one is to
conclude that Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) to the
extent that it no longer contains the provision which used to
be in Item 5 (wording of 13 May 1999) of the same paragraph,
under which it used to be established that the rights of
ownership to the real property were to be restored to the
citizens of the Republic of Lithuania to whom the property had
been transferred by testament (house testament) or agreements
(of purchase and sale, gift, or by another written document)
while disregarding the form and procedure established by the
law, also the citizens, who had been bequeathed property by
testament by successors to the rights of the property, is in
conflict with Article 29 of the Constitution.
22. The Law on the Amendment and Supplement of the
Preamble, Articles 2, 12, 13, 15, 16, and 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, adopted on 29 October 2002, does not
establish, either, that the rights of ownership are to be
restored to the citizens to whom the property was transferred
by testament (house testament) or agreements (of purchase and
sale, gift, or by another written document) while disregarding
the form and procedure established by the law, also the
citizens, who were bequeathed property by testament by
successors to the rights of the property.
23. The citizens who have the right to the restoration of
the rights of ownership are specified in Paragraph 1 of Article
2 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 29 October
2002).
24. It has been held in this Ruling of the Constitutional
Court that Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) to the
extent that it no longer contains the provision which used to
be in Item 5 (wording of 13 May 1999) of the same paragraph,
under which it used to be established that the rights of
ownership to the real property were to be restored to the
citizens of the Republic of Lithuania to whom the property had
been transferred by testament (house testament) or agreements
(of purchase and sale, gift, or by another written document)
while disregarding the form and procedure established by the
law, also the citizens, who had been bequeathed property by
testament by successors to the rights of the property, is in
conflict with Article 23 of the Constitution, the
constitutional principle of a state under the rule of law, and
Article 29 of the Constitution.
25. On the grounds of the same arguments, one is to
conclude that Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) to the
extent that it no longer contains the provision which used to
be in Item 5 (wording of 13 May 1999) of the same paragraph,
under which it used to be established that the rights of
ownership to the real property were to be restored to the
citizens of the Republic of Lithuania to whom the property had
been transferred by testament (house testament) or agreements
(of purchase and sale, gift, or by another written document)
while disregarding the form and procedure established by the
law, also the citizens, who had been bequeathed property by
testament by successors to the rights of the property, is in
conflict with Article 23 of the Constitution, the
constitutional principle of a state under the rule of law, and
Article 29 of the Constitution.
VII
On the compliance of Item 5 of Paragraph 1 of Article 2 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002) with Articles 23 and 29 of the Constitution.
1. The petitioner, a group of members of the Seimas,
requests in its petition of 24 January 2002 to investigate as
to whether Item 5 of Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) is not in
conflict with Articles 23 and 29 of the Constitution.
2. It needs to be noted that by Article 2 of the 29
October 2002 Law on the Amendment and Supplement of the
Preamble, Articles 2, 12, 13, 15, 16, and 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property Item 5 of Article 1 of Article 2 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 15 January 2002) was
recognised as no longer valid.
3. Under Item 5 of Paragraph 1 of Article 2 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002), the rights
of ownership to the real property specified in Article 3 of
this law shall be restored to the citizens of the Republic of
Lithuania whose property was not sold by auction or mortgaged
prior to the 15 June 1940 occupation.
This provision of the law means that the citizens whose
property was sold by auction or mortgaged prior to the 15 June
1940 occupation do not have the right to restore their rights
of ownership.
4. While deciding whether Item 5 of Paragraph 1 of Article
2 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002) is not in conflict with Articles 23 and 29 of the
Constitution, which are pointed out by the petitioner, one must
find out whether a person whose property was sold by auction or
mortgaged prior to the 15 June 1940 occupation remained the
owner of the property.
5. Under the valid legal acts in Lithuania until 15 June
1940, mortgage of property was regarded as one of the ways of
ensuring fulfilment of liabilities. For instance, in the 1936
Hypothec Law the mortgage right is referred to as a cumbersome
right, i.e. the right which encumbers the right of ownership.
Mortgaging of real property did not mean termination of the
right of ownership. Even when the liability secured by the
mortgage happened not to be fulfilled, the right of ownership
to the mortgaged property would not appear to the creditor.
6. It has been held in this Ruling of the Constitutional
Court that the legislator enjoys the discretion to establish
the conditions and procedure of restoration of the right of
ownership, however, when establishing the conditions and
procedure of restoration of the right of ownership, he must
take account of the constitutional principles of ownership
protection.
7. Under the provision of Item 5 of Paragraph 1 of Article
2 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002), the rights of ownership to the real property specified
in Article 3 of this law shall be restored to the citizens of
the Republic of Lithuania whose property was not sold by
auction or mortgaged prior to the 15 June 1940 occupation, thus
the persons whose property was mortgaged lose the right to
restore their rights of ownership, although they remained the
owners of the property mortgaged. This is not in line with the
constitutional protection of the right of ownership.
8. Taking account of the arguments set forth, one is to
conclude that the provision of Item 5 of Paragraph 1 of Article
2 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002), the rights of ownership to the real property specified
in Article 3 of this law shall be restored to the citizens of
the Republic of Lithuania whose property was not mortgaged
prior to the 15 June 1940 occupation was in conflict with
Article 23 of the Constitution.
9. The provision of Item 5 of Paragraph 1 of Article 2 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002), under which the rights of ownership shall not be
restored to the citizens whose property was sold by auction
prior to the 15 June 1940 occupation, is to be assessed in a
different manner.
Under the legal acts valid in Lithuania until the 15 June
1940 occupation, claims of creditors might be met by way of
sale of the property of the debtor by auction. Selling of
property by auction is one of the grounds of termination of the
right of ownership: the person whose property has been sold by
auction is no longer the owner of the property.
Under the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property, the rights
of ownership are restored to the owner of the property, while
if he has deceased-to the heirs of the owner, who are specified
in the law. The fact that the rights of ownership are not
restored to the citizens, who lost their right of ownership
after their property was sold by auction, cannot be regarded as
a violation of the rights of ownership.
10. Taking account of the arguments set forth, one is to
conclude that the provision of Item 5 of Paragraph 1 of Article
2 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002) that the rights of ownership to the real property shall
be restored to the citizens whose property was not sold by
auction prior to the 15 June 1940 occupation was not in
conflict with Articles 23 and 29 of the Constitution.
11. Until the 15 January 2002 Law on the Amendment and
Supplement of Articles 2, 8, 12, 15, 16, 18, 20, and 21 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property went into effect, by Article 1
whereof Item 5 of Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 May 1999) was amended,
the citizens whose property was mortgaged had the right to
restore the rights of ownership.
12. It has been held in this Ruling of the Constitutional
Court that the provision of Item 5 of Paragraph 1 of Article 2
of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002), the rights of ownership to the real property shall be
restored to the citizens whose property was not mortgaged prior
to the 15 June 1940 occupation is in conflict with Article 23
of the Constitution. After Article 1 of the 15 January 2002 Law
on the Amendment and Supplement of Articles 2, 8, 12, 15, 16,
18, 20, and 21 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property had amended
Item 5 of Paragraph 1 of Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 May 1999), and after it
had been established therein that the rights of ownership shall
be restored to the citizens of the Republic of Lithuania whose
property was not mortgaged prior to the 15 June 1940
occupation, there appeared a legal situation that part of
citizens whose property was mortgaged until the 15 June 1940
occupation lost their right to restore the rights of ownership,
although they had enjoyed that right before. Thus, the
situation of part of the owners whose property until the 15
June 1940 occupation was mortgaged, and who had enjoyed the
rights of ownership, was deteriorated: they found themselves in
the situation of non-equal rights if compared with the persons
who either had restored their rights of ownership or had
enjoyed the right to restore it until the entry into effect of
said Item 5 of Paragraph 1 of Article 2 (wording of 15 January
2002).
By such legal regulation one disregarded the principle of
equality of all persons before the law, which is entrenched in
Article 29 of the Constitution.
13. Taking account of the arguments set forth, one is to
conclude that the provision of Item 5 of Paragraph 1 of Article
2 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002) that the rights of ownership to the real property shall
be restored to the citizens whose property was not mortgaged
prior to the 15 June 1940 occupation was in conflict with
Article 29 of the Constitution.
VIII
On the compliance of Items 2 and 3 of Paragraph 2 of
Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
15 January 2002) with Articles 23 and 29 of the Constitution.
1. The petitioner, a group of members of the Seimas, in
its petition of 24 January 2002 requests to investigate whether
the following provisions of Paragraph 2 of Article 15 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 15 January 2002) are
not in conflict with Articles 23 and 29 of the Constitution:
"Residential houses, parts thereof, flats shall be seized from
the citizens specified in Article 2 of this Law, save those
specified in Paragraph 1 of Article 20, for the needs of
society and they shall be compensated under Article 16 of this
Law, if: <...> (2) the citizens have been restored the rights
of ownership to the residential houses, parts thereof, flats
subject to being returned in kind, in which the tenants reside,
who were unable to implement their right to privatise them,
when the citizens have been returned parts of the houses in
kind, in which they reside, or they have acquired the ownership
of certain premises privatised under the Law on Privatisation
of Flats; (3) the tenants reside therein, who were unable to
implement their right to privatise them, when the citizens have
been returned parts of the houses in kind, in which they
reside, or they have acquired the ownership of certain premises
privatised under the Law on Privatisation of Flats."
2. Until 15 January 2002, when Article 15 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 13 May 1999) was amended and
supplemented, the said article used to run as follows:
"Article 15. Residential Houses, Parts thereof, Flats
Bought out by the State
Residential houses, parts thereof, flats shall be bought
out by the State from the citizens specified in Article 2 of
this Law and they shall be compensated for according to Article
16 of this Law, provided they:
1) have been reconstructed into non-residential premises
and are used for educational, health care, cultural, scientific
needs, and by communal care residences. The list of these
premises shall be confirmed by the Government;
2) have substantially been reconstructed to such an extent
that more than 50 per cent of the main constructions have been
altered and it is impossible to separate the created new gross
floor area from the former one, if the total gross floor area
exceeds the former by 30 per cent;
3) have been acquired as private ownership according to
laws."
3. The conditions and procedure of restoration of the
rights of ownership to the residential houses, parts thereof,
flats was established in Article 8 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 1 July 1997).
Until 15 January 2002, when Article 8 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 1 July 1997) was amended and
supplemented, the said article used to run as follows:
"Article 8. Conditions and Procedure for the Restoration
of the rights of ownership to Residential Houses, Parts
Thereof, Flats
1. Ownership rights to residential houses, parts thereof,
flats shall be restored to the citizens specified in Article 2
of this Law by returning them in kind, except the residential
houses, parts thereof, flats which are subject to the State
buy-out pursuant to Article 15 of this Law.
2. The State shall compensate, according to Article 16 of
this Law, citizens for residential houses, parts thereof, flats
which are subject to the State buy-out, as well as for the
residential houses, parts thereof, flats, specified in Article
3 of this Law, which have not survived after 1 August 1991 due
to the decisions adopted by the State, or municipal
institutions.
3. Upon giving back the residential houses, parts thereof,
flats in kind, the right of ownership to the land on which the
given back houses are built, shall be restored under the
procedure prescribed by Articles 4 and 5 of this Law,
irrespective of whether a separate request for giving back this
land has been filed.
4. Upon giving back residential houses, parts thereof or
flats in kind or upon transfer of the ownership of other
residential premises to the persons specified in Article 2 of
this Law, these citizens together with their family members and
subtenants must, within two months of the day of transferring
the empty residential premises to them, vacate the premises of
the State or municipal housing stock rented by them.
5. If citizens do not desire to get back the houses in
kind where tenants reside or do not agree with the conditions
laid down in Article 20, they shall receive compensation
according to Article 16 of this Law."
4. Thus, under the (prior) legal regulation established in
Article 15 (wording of 13 May 1999) and Paragraph 1 of Article
8 (wording of 1 July 1997) of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property,
citizens had the right to restore their rights of ownership by
getting back the residential houses, parts thereof and flats in
kind which were not specified in Article 15 of the law.
5. The residential houses, parts thereof and flats which
were specified in Article 15 (wording of 13 May 1999) of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property were bought out by the state and
compensated for under Article 16 (wording of 13 May 1999) of
the same law.
It was established in Paragraph 10 of Article 16 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 13 May 1999), that
the state shall compensate citizens for the residential houses,
parts thereof, flats which are bought out by the state in the
following ways:
"1) by transferring gratis for their ownership the flats,
rented by them, from the state or municipal housing stock, the
difference in values whereof shall be paid under procedure
established by the Government;
2) by transferring gratis, under procedure established by
the Government, the ownership of the flats which are equal in
value to the previously held houses, parts thereof, flats;
3) by transferring gratis the ownership of a new plot of
land for individual construction, equal in value to the houses,
parts thereof, flats held previously, in the locality where
they were situated. At the request of the citizen, an
equivalent new plot of land for individual construction may be,
under procedure established by the Government, transferred
gratis for ownership in the towns and rural areas other than
those where the residential houses, parts thereof, flats were
situated, except the towns of Vilnius, Kaunas, Klaipėda,
Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai,
Palanga, Birštonas, and Neringa;
4) by transferring gratis the ownership of vacant, not
rented buildings, facilities or parts thereof equal in value to
the houses, parts thereof, flats held previously. The procedure
for the transfer of these buildings, structures and parts
thereof shall be established by the Government;
5) by making void a citizen's liabilities to the State by
way of inclusion, which occurred after the seizure of the real
property up to the passing a decision to restore the rights of
ownership, in accordance with the procedure established by the
Government;
6) by transferring gratis the ownership of other property
under procedure established by the Government;
7) in cash and/or in securities."
6. On 15 January 2002, the Seimas amended and supplemented
Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property, and in
Paragraph 2 of the same article it established new provisions:
"Residential houses, parts thereof, flats shall be seized from
the citizens specified in Article 2 of this Law, save those
specified in Paragraph 1 of Article 20, for the needs of
society and they shall be compensated under Article 16 of this
Law, if: <...> (2) the citizens have been restored the rights
of ownership to the residential houses, parts thereof, flats
subject to being returned in kind, in which the tenants reside,
who were unable to implement their right to privatise them,
when the citizens have been returned parts of the houses in
kind, in which they reside, or they have acquired the ownership
of certain premises privatised under the Law on Privatisation
of Flats; (3) the tenants reside therein, who were unable to
implement their right to privatise them, when the citizens have
been returned parts of the houses in kind, in which they
reside, or they have acquired the ownership of certain premises
privatised under the Law on Privatisation of Flats."
7. On 15 January 2002, the Seimas amended and supplemented
Article 8 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property by
abolishing Paragraph 5 of the same article; Paragraph 1 of
Article 8 in which it was provided that "ownership rights to
residential houses, parts thereof, flats shall be restored to
the citizens specified in Article 2 of this Law by returning
them in kind, except the residential houses, parts thereof,
flats which are subject to the State buy-out pursuant to
Article 15 of this Law" remained unchanged.
8. On 15 January 2002, the Seimas supplemented Paragraph
10 of Article 16 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
13 May 1999) by entering a provision therein that the state
shall compensate citizens for the residential houses, parts
thereof, flats which are bought out by the state "by justly
compensating for, while deducting the expenses of their
improvement and reconstruction". The ways by which the state
compensates citizens for the residential houses, parts thereof,
flats which are bought out by the state were not changed.
9. Thus, after Article 15 (wording of 13 May 1999) of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property was amended and supplemented on
15 January 2002, the following new provisions were consolidated
in Paragraph 2 of the said article: (1) the residential houses,
parts thereof, flats specified in the law are seized for the
needs of society and are compensated for; (2) the residential
houses, parts thereof, flats are seized from the citizens who
restored the rights of ownership to the residential houses,
parts thereof, flats subject to being returned in kind, in
which the tenants reside, who were unable to implement their
right to privatise them, when the citizens have been returned
parts of the houses in kind, in which they reside, or they have
acquired the ownership of certain premises privatised under the
Law on Privatisation of Flats; (3) the residential houses,
parts thereof, flats are seized for needs of society in which
the tenants reside, who were unable to implement their right to
privatise them, when the citizens have been returned parts of
the houses in kind, in which they reside, or they have acquired
the ownership of certain premises privatised under the Law on
Privatisation of Flats; (4) the residential houses, parts
thereof, flats are seized for the needs of society not from all
citizens specified in Article 2 of the law: the residential
houses, parts thereof, flats are not seized for the needs of
society from the citizens specified in Paragraph 1 of Article
20 of the law.
10. Paragraph 1 of Article 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) provides:
"When a citizen is returned a residential house, part thereof,
flat in kind, and one flat is rented to persons residing
therein according to the agreement of tenancy by the
municipality, the institution which has adopted a decision to
return the citizen the residential house, part thereof, must,
within one year of the entry into force of this Law, issue the
tenants residing therein a State guarantee certificate on the
State guarantee established for the tenant. Such a guarantee
certificate is also issued to the owner of the house, part
thereof, which is being returned. The State guarantees,
execution thereof, the rights and duties of those enjoying the
said guarantees shall be established by the Law on the Amount,
Sources, Terms and Procedure of Payment of Compensations for
the Real Property Bought Out by the State as well as the
Guarantees and Preferences Provided for in the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property."
Thus, it is clear from Paragraph 1 of Article 20 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 15 January 2002) that
the citizens from whom the residential houses, parts thereof,
flats are not seized for the needs of society are defined in
the first sentence of the said paragraph: these are the
citizens who have been returned a residential house, part
thereof, flat in kind, and one flat is rented to persons
residing therein according to the agreement of tenancy by the
municipality.
11. The seizure of residential houses, parts thereof,
flats for the needs of society, which is consolidated in the
disputed provision of Paragraph 2 of Article 15 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002), is linked
with the fact that the tenants are residing therein, who were
unable to implement their right to privatise them. This is the
main condition under which residential houses, parts thereof,
flats are seized for the needs of society.
It needs to be noted that the condition "the tenants
reside therein, who were unable to implement their right to
privatise them" established in the law is legally groundless.
Interpreted in a linguistic manner, this condition would mean
that the said tenants enjoyed the right to privatise the said
residential houses, parts thereof, flats which belonged to the
owners and to which the rights of ownership are being restored.
However, according to the laws, the tenants never enjoyed such
a right. The right of citizens to privatise the rented
residential houses, parts thereof, flats was established in the
28 May 1991 Law on the Privatisation of Flats. It was
established in Article 3 of the said law that under this law,
one is prohibited from selling (privatising) "the residential
houses, flats, which were seized, confiscated or nationalised
by administrative acts or in other ways from the citizens of
Lithuania who have the right to the restoration of the rights
of ownership under Article 2 of the Republic of Lithuania Law
'On the Restoration of the Rights of Ownership of Citizens to
the Existing Real Property'" (Item 4 of Paragraph 1 of Article
3). Although the Law on the Privatisation of Flats used to be
amended and supplemented for more than once, however, neither
the said law, nor other laws ever consolidated a provision
whereby the tenants residing in the houses, parts thereof,
flats subject to being returned (already returned) to the
owners would enjoy the right to privatise the residential
premises rented by them.
The person may implement any right only provided he enjoys
such a right. It is evident that if the persons did not have
the right to privatise residential houses, parts thereof,
flats, they could not have any right to implement the
aforementioned right. Therefore, the condition "the tenants
reside therein, who were unable to implement their right to
privatise them" established in Paragraph 2 of Article 15 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 15 January 2002) is
grounded on legally deficient preconditions.
12. It needs to be noted that the state, having chosen the
model of privatisation of flats in 1991, when part of the
persons, who, as well as the other tenants, rented premises
assigned to the state (public) housing stock, were unable to
buy (privatise) them, since these were residential houses,
parts thereof, flats that had been unlawfully nationalised or
disseized in other unlawful ways, also undertook an obligation
to allot other residential premises of equal value to the
tenants residing in residential houses, parts thereof, flats
subject to being returned (already returned) to the owners, to
allot them gratis land plots for construction of residential
houses or to compensate the acquisition of residential
premises. Until the state has not fulfilled this obligation,
the legal expectations of the tenants, which are protected by
the Constitution and laws, will not be met. It is clear from
the case material as well as testimonies of the witnesses in
this case that the state has not fulfilled its obligations
before the tenants residing in residential houses, parts
thereof, flats subject to being returned (already returned) to
the owners. It is also clear from the case material that a
concrete state programme has not been designed and confirmed
yet in order to solve this problem, which should be supported
with necessary financial and other resources.
It has been mentioned that, under the Constitution, the
state has a duty to fulfil the obligations that it has
undertaken. Since the obligations undertaken by the state in
regard of the tenants have not been fulfilled yet, one is to
hold that the legal expectations of the tenants residing in
residential houses, parts thereof, flats subject to being
returned (already returned) to the owners are being violated.
13. The petitioner, a group of members of the Seimas, in
its petition of 24 January 2002 requests to investigate whether
the following provisions of Paragraph 2 of Article 15 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 15 January 2002) are
not in conflict with Article 23 of the Constitution:
"Residential houses, parts thereof, flats shall be seized from
the citizens specified in Article 2 of this Law, save those
specified in Paragraph 1 of Article 20, for the needs of
society and they shall be compensated under Article 16 of this
Law, if: <...> (2) the citizens have been restored the rights
of ownership to the residential houses, parts thereof, flats
subject to being returned in kind, in which the tenants reside,
who were unable to implement their right to privatise them,
when the citizens have been returned parts of the houses in
kind, in which they reside, or they have acquired the ownership
of certain premises privatised under the Law on Privatisation
of Flats; (3) the tenants reside therein, who were unable to
implement their right to privatise them, when the citizens have
been returned parts of the houses in kind, in which they
reside, or they have acquired the ownership of certain premises
privatised under the Law on Privatisation of Flats."
14. It needs to be noted that the provisions of Paragraph
2 of Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
15 January 2002), which are disputed by the petitioner, a group
of members of the Seimas, are linked with different legal
situations: the provision "residential houses, parts thereof,
flats shall be seized from the citizens specified in Article 2
of this Law, save those specified in Paragraph 1 of Article 20,
for the needs of society and they shall be compensated under
Article 16 of this Law, if: <...> (2) the citizens have been
restored the rights of ownership to the residential houses,
parts thereof, flats subject to being returned in kind, in
which the tenants reside, who were unable to implement their
right to privatise them, when the citizens have been returned
parts of the houses in kind, in which they reside, or they have
acquired the ownership of certain premises privatised under the
Law on Privatisation of Flats" is linked with the legal
situation when citizens have already been restored their rights
of ownership to residential houses, parts thereof, flats
subject to being returned in kind.
Another provision of Paragraph 2 of Article 15 (wording of
15 January 2002) of the said law, which reads: "Residential
houses, parts thereof, flats shall be seized from the citizens
specified in Article 2 of this Law, save those specified in
Paragraph 1 of Article 20, for the needs of society and they
shall be compensated under Article 16 of this Law, if: <...>
(3) the tenants reside therein, who were unable to implement
their right to privatise them, when the citizens have been
returned parts of the houses in kind, in which they reside, or
they have acquired the ownership of certain premises privatised
under the Law on Privatisation of Flats" is linked with the
legal situation when citizens have not been restored completely
yet their rights of ownership by returning residential houses,
parts thereof, flats in kind.
15. While deciding whether the provision "residential
houses, parts thereof, flats shall be seized from the citizens
specified in Article 2 of this Law, save those specified in
Paragraph 1 of Article 20, for the needs of society and they
shall be compensated under Article 16 of this Law, if: <...>
(2) the citizens have been restored the rights of ownership to
the residential houses, parts thereof, flats subject to being
returned in kind, in which the tenants reside, who were unable
to implement their right to privatise them, when the citizens
have been returned parts of the houses in kind, in which they
reside, or they have acquired the ownership of certain premises
privatised under the Law on Privatisation of Flats" of
Paragraph 2 of Article 15 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 15 January 2002) is not in conflict with Article 23
of the Constitution, the fact is of essential importance as to
from what moment the citizen who has been restored the right of
ownership acquires the rights to particular property. In its
ruling of 15 July 1994, the Constitutional Court held that
"after the state authorised institution adopts a decision to
return the property in kind or to compensate for it, it has the
juridical meaning that from that moment the former owner
acquires the rights of the owner". It needs to be noted that
when the rights of ownership are restored on the grounds of
law, for their protection the norms of Article 23 of the
Constitution are applied in full extent (Constitutional Court
ruling of 20 June 1995). Thus, after a state authorised
institution adopts a decision to restore the right of ownership
to a person to residential houses, parts thereof, flats subject
to being returned in kind, such a person acquires the rights of
ownership protected and safeguarded by Article 23 of the
Constitution.
16. Under Paragraph 3 of Article 23 of the Constitution,
property may only be seized for the needs of society in
accordance with the procedure established by law and shall be
justly compensated for.
It has been mentioned that the needs of society indicated
in Paragraph 3 of Article 23 of the Constitution, for which
property may be seized according to the procedure established
by law and must be adequately compensated for, are interests of
either the whole or part of society, which the state, while
implementing its functions, is constitutionally obligated to
secure and satisfy; the needs of society, for which property is
seized, are always particular and clearly expressed needs of
society for a concrete object of property; it is permitted to
seize property (by adequately compensating for) only for such
public needs which would not be objectively met if a certain
concrete object of property were not seized; the person whose
property is being seized for the needs of society has the right
to demand that the established compensation be equivalent in
value for the property seized. It has also been mentioned that
the seizure of property established in Paragraph 3 of Article
23 of the Constitution is an individual decision concerning
seizure of private property held as private ownership which is
made in every concrete case according to the procedure
established by law; that, while adopting a decision on seizure
of property for the needs of society, one must, at the same
time, establish concrete amount of compensation for the
property seized, the procedure of payment of the compensation
to the owner; that the owner must be notified about the seizure
of his property and the mount of the compensation for it as
well as other conditions prior to the adoption of a decision on
seizure of the property for the needs of society; that until
the institution which intends to adopt a decision on the
seizure of property and the owner do not reach an agreement
over the compensation for the property seized, or until their
dispute is settled by court, property may not be seized from
the owner.
17. It has been mentioned that under Item 2 of Paragraph 2
of Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
15 January 2002) residential houses, parts thereof, flats shall
be seized from the citizens specified in Article 2 of this Law,
save those specified in Paragraph 1 of Article 20, for the
needs of society and they shall be compensated under Article 16
of this Law, if the citizens have been restored the rights of
ownership to the residential houses, parts thereof, flats
subject to being returned in kind, in which the tenants reside,
who, as it is pointed out in the law "were unable to implement
their right to privatise them", when the citizens have been
returned parts of the houses in kind, in which they reside, or
they have acquired the ownership of certain premises privatised
under the Law on Privatisation of Flats. It means that from the
persons pointed out in Item 2 of Paragraph 2 of Article 15 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002), who are, as of the adoption of the decision of the state
authorised institution to restore the rights of ownership, the
owners of the residential houses, parts thereof, flats, then
the said residential houses, parts thereof, flats, are seized
not in every individual case while deciding on an individual
basis, under procedure established by law, whether the property
under private ownership in question must be seized for the
needs of society, however, the property is seized as the law
obligates to seize such property. Thus, property is seized from
the owner without deciding whether or not there exists a
particular need of society for the residential house, part
thereof, flat belonging to a concrete person by right of
ownership, and without any prior agreement with the owner on
the compensation for the property seized. The condition pointed
out in Paragraph 2 of Article 15 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 15 January 2002) under which residential
houses, parts thereof, flats are not returned in kind but are
seized, i.e. when the tenants reside therein who, as it is
pointed out in the law, "were unable to implement their right
to privatise them", may not be regarded as one expressing the
need of society for a particular object of property. In itself,
the circumstance that the tenants reside in the said
residential houses, parts thereof, flats, who, as it is pointed
out in the law, "were unable to implement their right to
privatise them", does not constitute a ground to seize the said
residential houses, parts thereof, flats, from the citizens,
though compensating them for this.
18. Taking account of the arguments set forth, one is to
conclude that the provision "residential houses, parts thereof,
flats shall be seized from the citizens specified in Article 2
of this Law, save those specified in Paragraph 1 of Article 20,
for the needs of society and they shall be compensated under
Article 16 of this Law, if: <...> (2) the citizens have been
restored the rights of ownership to the residential houses,
parts thereof, flats subject to being returned in kind, in
which the tenants reside, who were unable to implement their
right to privatise them, when the citizens have been returned
parts of the houses in kind, in which they reside, or they have
acquired the ownership of certain premises privatised under the
Law on Privatisation of Flats" of Paragraph 2 of Article 15 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002) was in conflict with Article 23 of the Constitution.
19. Another provision of Paragraph 2 of Article 15 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 15 January 2002),
which reads: "Residential houses, parts thereof, flats shall be
seized from the citizens specified in Article 2 of this Law,
save those specified in Paragraph 1 of Article 20, for the
needs of society and they shall be compensated under Article 16
of this Law, if: <...> (3) the tenants reside therein, who were
unable to implement their right to privatise them, when the
citizens have been returned parts of the houses in kind, in
which they reside, or they have acquired the ownership of
certain premises privatised under the Law on Privatisation of
Flats", which is disputed in the petition of 24 January 2002 of
the petitioner, a group of Seimas members, is linked with the
legal situation when citizens have not been restored completely
yet their rights of ownership by returning residential houses,
parts thereof, flats in kind.
20. It has been mentioned that although the legislator
enjoys the discretion to establish the conditions and procedure
of restoration of the rights of ownership, however, when
establishing, by laws, the conditions and procedure of the
rights of ownership to the existing real property, one is to
take account of the constitutional principles of the protection
of the right of ownership.
21. It has also been mentioned that the condition
established in Paragraph 2 of Article 15 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) when the
residential houses, parts thereof, flats are seized and
compensated for in case the tenants are residing therein who,
as it is pointed out in the law, "were unable to implement
their right to privatise them" is legally groundless, and it
cannot be regarded as one expressing a need of society for a
particular object of property. In itself, the circumstance that
the tenants reside in the said residential houses, parts
thereof, flats, who, as it is pointed out in the law, "were
unable to implement their right to privatise them", does not
constitute a ground to seize the said residential houses, parts
thereof, flats, from the citizens, though compensating them for
this.
22. After it has been established in Paragraph 2 of
Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
15 January 2002) that "residential houses, parts thereof, flats
shall be seized from the citizens specified in Article 2 of
this Law, save those specified in Paragraph 1 of Article 20,
for the needs of society and they shall be compensated under
Article 16 of this Law, if: <...> (3) the tenants reside
therein, who were unable to implement their right to privatise
them, when the citizens have been returned parts of the houses
in kind, in which they reside, or they have acquired the
ownership of certain premises privatised under the Law on
Privatisation of Flats", the constitutional principles of the
protection of the right of ownership are disregarded.
Such legal regulation is not in line with Article 23 of
the Constitution.
23. Taking account of the arguments set forth, one is to
conclude that Paragraph 2 of Article 15 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) to the
extent that it provides that "residential houses, parts
thereof, flats shall be seized from the citizens specified in
Article 2 of this Law, save those specified in Paragraph 1 of
Article 20, for the needs of society and they shall be
compensated under Article 16 of this Law, if: <...> (3) the
tenants reside therein, who were unable to implement their
right to privatise them, when the citizens have been returned
parts of the houses in kind, in which they reside, or they have
acquired the ownership of certain premises privatised under the
Law on Privatisation of Flats" was in conflict with Article 23
of the Constitution.
24. It needs to be noted that the state may not solve the
problem of provision of the tenants with residential premises
which would belong to them by right of ownership at the expense
of the persons to whom the rights of ownership have already
been restored to the residential houses, parts thereof, flats
subject to being returned in kind. This problem may not be
solved at the expense of the persons who have not been restored
completely the rights of ownership by returning the residential
houses, parts thereof, flats in kind, either. The legitimate
interest of the tenants residing in the residential houses,
parts thereof, flats subject to being returned (already
returned) in kind to the owners to acquire residential premises
of equal value by right of ownership must by ensured by other
ways.
25. The petitioner, a group of members of the Seimas,
requests to investigate whether the following provisions of
Paragraph 2 of Article 15 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 15 January 2002) are not in conflict with Article
29 of the Constitution: "Residential houses, parts thereof,
flats shall be seized from the citizens specified in Article 2
of this Law, save those specified in Paragraph 1 of Article 20,
for the needs of society and they shall be compensated under
Article 16 of this Law, if: <...> (2) the citizens have been
restored the rights of ownership to the residential houses,
parts thereof, flats subject to being returned in kind, in
which the tenants reside, who were unable to implement their
right to privatise them, when the citizens have been returned
parts of the houses in kind, in which they reside, or they have
acquired the ownership of certain premises privatised under the
Law on Privatisation of Flats; (3) the tenants reside therein,
who were unable to implement their right to privatise them,
when the citizens have been returned parts of the houses in
kind, in which they reside, or they have acquired the ownership
of certain premises privatised under the Law on Privatisation
of Flats."
26. It has been mentioned that under the legal regulation
established in Article 15 and Paragraph 1 of Article 8 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property, which was in effect until the
entry into effect of the law adopted on 15 January 2002,
citizens had the right to restore their rights of ownership by
getting back the residential houses, parts thereof, and flats
in kind which were not specified in Article 15.
27. If compared with the former legal regulation,
Paragraph 2 of Article 15 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 15 January 2002) establishes new features,
characterising residential houses, parts thereof, flats that
are subject to state buy-out. Thus, new grounds are established
in Paragraph 2 of Article 15 of the law, when residential
houses, parts thereof, flats are not returned to the owners in
kind. Consequently, these citizens, from the viewpoint of the
protection of the rights of ownership, have been placed in a
worse legal situation if compared with those citizens that had
the right to restore their rights of ownership under Article 15
of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 13 May 1999)
which used to be in force until then.
Such legal regulation disregards the principle of equality
of rights of persons, which is entrenched in Article 29 of the
Constitution.
28. Paragraph 2 of Article 15 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property provides that residential houses, parts
thereof, flats are seized not from all the citizens specified
in Article 2 of the said law: they are not seized from the
citizens specified in Paragraph 1 of Article 20 of the same
law. It has been mentioned, that such citizens are defined in
Paragraph 1 of Article 20 as follows: citizens who have been
"returned a residential house, part thereof, flat in kind, and
one flat is rented to persons residing therein according to the
agreement of tenancy by the municipality".
Thus, Paragraph 2 of Article 15 of the law (wording of 15
January 2002) establishes the legal regulation when the owners
themselves are differentiated: both from the aspect of the
right of ownership to residential houses, parts thereof, flats
by returning them in kind, and from the aspect of seizure of
residential houses, parts thereof, flats, from the owners, the
latter are in unequal legal situation, although there are not
any such differences between them, which might objectively
justify such an unequal treatment.
Such legal regulation is not in line with the
constitutional principle of equality of rights of persons,
entrenched in Article 29 of the Constitution.
29. Taking account of the arguments set forth, one is to
conclude that Paragraph 2 of Article 15 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) to the
extent that it is established that "residential houses, parts
thereof, flats shall be seized from the citizens specified in
Article 2 of this Law, save those specified in Paragraph 1 of
Article 20, for the needs of society and they shall be
compensated under Article 16 of this Law, if: <...> (2) the
citizens have been restored the rights of ownership to the
residential houses, parts thereof, flats subject to being
returned in kind, in which the tenants reside, who were unable
to implement their right to privatise them, when the citizens
have been returned parts of the houses in kind, in which they
reside, or they have acquired the ownership of certain premises
privatised under the Law on Privatisation of Flats; (3) the
tenants reside therein, who were unable to implement their
right to privatise them, when the citizens have been returned
parts of the houses in kind, in which they reside, or they have
acquired the ownership of certain premises privatised under the
Law on Privatisation of Flats" was in conflict with Article 29
of the Constitution.
IX
On the compliance of Article 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) to the
extent that this article no longer contains the provision
"until that time the owner shall be prohibited <...> from
evicting the tenants" which used to be in Paragraph 1 of the
same article (wording of 13 May 1999) is not in conflict with
Article 29 of the Constitution.
1. The petitioner, a group of members of the Seimas, in
its petition of 24 January 2002 requests to investigate whether
Article 20 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
15 January 2002) to the extent that this article no longer
contains the provision prohibiting the owner from evicting the
tenants until the state fulfils the guarantees granted to them,
which used to be in Paragraph 1 of the same article (wording of
13 May 1999), is not in conflict with Article 29 of the
Constitution.
2. Paragraph 1 of Article 20 of the Law (wording of 13 May
1999) established: "When a residential house, part thereof,
flat in which tenants reside, is given back to a citizen in
kind, all the tenants' rights and duties, according to the
agreement of tenancy of residential premises, shall, in the
manner prescribed by the Government, be taken over by the
municipality until the time when the State fulfils the
guarantees granted to them. Until that time the owner shall be
prohibited from terminating the agreement of tenancy with the
municipality and shall be prohibited from evicting the tenants,
with the exception of the cases provided for in the Civil
Code".
3. After Article 20 of the said Law had been amended by
Article 7 of 15 January 2002 Law on the Amendment and
Supplement of Article 2, 8, 12, 15, 16, 18, 20, 21 of the Law
on the Restoration of the Rights of Ownership of Citizens to
the Existing Real Property, it ran as follows:
"1. When a citizen is returned a residential house, part
thereof, flat in kind, and one flat is rented to persons
residing therein according to the agreement of tenancy by the
municipality, the institution which has adopted a decision to
return the citizen the residential house, part thereof, must,
within one year of the entry into force of this Law, issue the
tenants residing therein a State guarantee certificate on the
State guarantee established for the tenant. Such a guarantee
certificate is also issued to the owner of the house, part
thereof, which is being returned. The State guarantees,
execution thereof, the rights and duties of those enjoying the
said guarantees shall be established by the Law on the Amount,
Sources, Terms and Procedure of Payment of Compensations for
the Real Property Bought Out by the State as well as the
Guarantees and Preferences Provided for in the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property.
2. If the owner of a residential house sells the returned
residential house, part thereof, flat, the tenants have the
priority right to buy it."
4. It needs to be noted that the fact itself that Article
20 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002) does not literary establish the provision prohibiting the
owner to evict the tenants until the state fulfils the
guarantees granted to them does not mean that the prohibition
does not exist in Article 20 of the law (wording of 15 January
2002) at all and the owners, according to this article,
acquired the right to evict the tenants before the state
fulfils the guarantees granted to the tenants.
Under Paragraph 1 of Article 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002), the
institution which has adopted a decision to return the citizen
the residential house, part thereof, must, within one year of
the entry into force of this law, issue the tenants residing
therein a state guarantee certificate on the state guarantee
established for the tenant; Paragraph 1 of this article also
establishes that the state guarantees, execution thereof, the
rights and duties of those enjoying the said guarantees shall
be established by the Law on the Amount, Sources, Terms and
Procedure of Payment of Compensations for the Real Property
Bought Out by the State as well as the Guarantees and
Preferences Provided for in the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property.
In the state guarantee certificate (guarantee), the state
undertakes an obligation that the tenants, who reside in a
house, part thereof, flat which is given back to a citizen,
within the time period indicated in this document: 1) will be
transferred the ownership to other residential premises gratis,
or 2) will be provided residential premises of higher value,
while transferring them gratis the ownership to the part the
value of which corresponds to the value of the rented premises,
while they will have to buy out the remaining part according to
the procedure and terms established by the Government, or 3)
will be transferred gratis the ownership to other residential
premises of lower value, while being compensated the difference
in value of the rented and transferred premises according to
the procedure and terms established by the Government, or 4)
will be transferred gratis the ownership to a land plot for the
construction of a residential house and will be given a credit
under preferential conditions for this construction, or 5) will
be given a credit under preferential conditions for the
construction or purchasing of residential premises, or 6) will
be compensated the expenses of acquisition of other residential
premises. The tenants of the house, part thereof, flat which is
returned to a citizen in kind have the right only to one of the
indicated guarantees.
Paragraph 4 of Article 9 of the Law on the Amount,
Sources, Terms and Procedure of Payment of Compensations for
the Real Property Bought Out by the State as well as the
Guarantees and Preferences Provided for in the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 21 March 2000) provides that
the state guarantee for the tenant shall be a certificate
issued under established procedure whereby the state
(guarantor) shall obligate itself to fulfil the guarantee
specified in Paragraph 1 of this Article for the tenant
(possessor of the guarantee) of the house, part thereof, flat
which is returned, while the tenant (possessor of the
guarantee) shall obligate himself, after the guarantee is
fulfilled, to vacate the held residential premises during the
time period established in Paragraph 7 of this article. The
provision that the tenant shall obligate himself, only after
the guarantee is fulfilled, to vacate the held residential
premises, means that, before such a state guarantee is granted
and actually fulfilled, the tenant may not be evicted from the
residential house, part thereof, flat which is returned to the
owner only because the rights of ownership of the owner have
been restored by giving back the residential house, part
thereof in kind.
It also needs to be noted in the context of the case at
issue that after the state guarantee has been fulfilled, the
tenant must vacate the held residential premises. The
Constitutional Court in its ruling of 15 June 1994 held that
"in cases when restoring the rights of ownership of former
owners to residential houses, the tenants occupying these
houses are allotted other dwelling units, which comply with the
requirements prescribed by laws, it is considered a sufficient
measure employed to protect the tenants' rights". In the said
ruling the Constitutional Court also held that "the condition
that, in cases when the tenants do not agree to change the
agreement of tenancy, residential houses shall not be returned,
set forth in the Law, is not in conformity with the provisions
of property protection established in Article 23 of the
Constitution".
Having held that Article 20 of the Law contains a
reference to the Law on the Amount, Sources, Terms and
Procedure of Payment of Compensations for the Real Property
Bought Out by the State as well as the Guarantees and
Preferences Provided for in the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 15 January 2002), Article 9 of which establishes a
guarantee for the tenants not to be evicted from the rented
premises before the state fulfils the guarantees granted to
them, one is also to hold that the situation of these persons
was not deteriorated, and their status was not made unequal if
compared to those, who had been granted the above-mentioned
guarantees by Article 20 of the law (wording of 13 May 1999),
which had been in force before it was amended and supplemented
by the law of 15 January 2002.
5. Taking account of the arguments set forth, one is to
conclude that Article 20 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 15 January 2002) to the extent considered in this
case is not in conflict with Article 29 of the Constitution.
X
On the compliance of Article 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) to the
extent that this article no longer contains the provision "the
tenants who continue to reside in the residential houses, parts
thereof, flats the owners of which do not wish to retrieve
them, shall acquire the right to buy out these premises" which
used to be in Paragraph 6 of the same article (wording of 13
May 1999) with Article 29 of the Constitution.
1. The petitioner, a group of members of the Seimas, in
its petition of 24 January 2002 requests to investigate whether
Article 20 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
15 January 2002) to the extent that this article no longer
contains the provision "the tenants who continue to reside in
the residential houses, parts thereof, flats the owners of
which do not wish to retrieve them, shall acquire the right to
buy out these premises" which used to be in Paragraph 6 of the
same article (wording of 13 May 1999) is not in conflict with
Article 29 of the Constitution.
2. In Paragraph 6 of Article 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 13 May 1999) was inter alia
established: "the tenants who continue to reside in the
residential houses, parts thereof, flats the owners of which do
not wish to retrieve them, shall acquire the right to buy out
these premises".
3. After Article 20 of the said Law (wording of 13 May
1999) had been amended by Article 7 of the 15 January 2002 Law
on the Amendment and Supplement of Article 2, 8, 12, 15, 16,
18, 20, 21 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property, the former
provision that "the tenants who continue to reside in the
residential houses, parts thereof, flats the owners of which do
not wish to retrieve them, shall acquire the right to buy out
these premises" was eliminated. This provision was not
established in other articles of the Law on the Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property (wording of 15 January 2002), either.
4. Therefore, after Article 20 the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 13 May 1999) was amended on 15 January
2002, the tenants, who continued to reside in the residential
houses, parts thereof, flats, the owners of which did not wish
to retrieve them, lost the right to buy out these premises. The
legal situation of these tenants was deteriorated if compared
to the tenants who had the right to buy out specified rented
premises under the former legal regulation. Thus, the principle
of equality of persons, established in Article 29 of the
Constitution, was violated.
5. Taking account of the arguments set forth, one is to
conclude that Article 20 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 15 January 2002) to the extent that this article no
longer contains the provision "the tenants who continue to
reside in the residential houses, parts thereof, flats the
owners of which do not wish to retrieve them, shall acquire the
right to buy out these premises" which used to be in Paragraph
6 of the same article (wording of 13 May 1999) is in conflict
with Article 29 of the Constitution.
XI
On the compliance of the provision "if the implementation
of the decision has begun, it may be abolished by the procedure
established by the Government" of Paragraph 3 of Article 21 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002) with Paragraph 1 of Article 30 of the Constitution.
1. The petitioner, a group of members of the Seimas, in
its petition of 24 January 2002 requests to investigate whether
the provision "if the implementation of the decision has begun,
it may be abolished by the procedure established by the
Government" of Paragraph 3 of Article 21 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002) is not in
conflict with Paragraph 1 of Article 30 of the Constitution.
2. Paragraph 3 of Article 21 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 15 January 2002) provides: "Until 1 July
2002 a citizen may change his will concerning the way employed
by the State for compensation of the bought out real property,
if the decision on restoration of the rights of ownership has
not been adopted. If the decision has been adopted, but its
implementation has not begun yet, it shall, on the request of a
citizen, be changed by institutions specified in Article 17 of
this Law under the administrative procedure, while if the
implementation of the decision has begun, it may be abolished
by the procedure established by the Government. Citizens must
submit requests on the amendment or abolishment of the adopted
decisions until 1 July 2002."
3. Article 2 of the Law on the Amendment of Article 10 and
21 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property adopted by the Seimas on
15 January 2002 amended Paragraph 3 of Article 21 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 15 January 2002), however,
the provision of this article, which is disputed by the
petitioner, remained unchanged.
4. Paragraph 1 of Article 30 of the Constitution provides:
"The person whose constitutional rights or freedoms are
violated shall have the right to apply to court."
The constitutional right to apply to court means that
every person in a state under the rule of law is ensured an
opportunity to defend his rights in court from actions of other
persons and of state institutions and their officials. The
provision of Paragraph 1 of Article 30 of the Constitution that
the person whose constitutional rights and freedoms are
violated shall have the right to apply to court consolidates
the constitutional right of the person to an impartial arbiter
of the dispute (Constitutional Court rulings of 1 October 1997
and 12 July 2001). Paragraph 1 of Article 30 of the
Constitution establishes the constitutional principle of
priority and universality of judicial protection, the
effectiveness of which is directly related to the provision of
Article 29 of the Constitution that all persons shall be equal
before the law (Constitutional Court ruling of 18 April 1996).
The person's right to apply to court may not be restricted or
limited, for it would threat one of the most significant values
of a state under the rule of law. The Constitutional Court in
its ruling of 8 May 2000 held that the person is guaranteed the
protection of his violated rights in court irrespective of his
legal status, and that violated rights and legal interests of
persons should be protected by courts irrespective of the fact
whether they are directly established in the Constitution or
not. It needs to be noted that, according to the Constitution,
the legislator is obligated to establish the legal regulation
which would make it possible to decide in courts all disputes
concerning violations of rights and freedoms of persons. The
out-of-court procedure for settlement of disputes may be
established as well. However, it is not permitted to establish
any such legal regulation, which would deny the right of the
person, who considers that his rights and freedoms have been
violated, to protect his rights and freedom in court
(Constitutional Court ruling of 2 July 2002).
5. While deciding whether the provision of Paragraph 3 of
Article 21 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
15 January 2002) "if the implementation of the decision has
begun, it may be abolished by the procedure established by the
Government" is not in conflict with Paragraph 1 of Article 30
of the Constitution, it should be pointed out that, according
to Paragraph 3 of Article 21 of the said law, if the
implementation of a decision on restitution of the rights of
ownership has begun, this decision may be abolished by the
procedure established by the Government only in case a citizen,
whose rights of ownership have been restored, requests so
himself. Therefore, the disputed provision of the law
establishes the right of the person to request to change his
former will concerning the way employed by the state for
compensation of the bought out real property: if the
implementation of the decision has begun, such a decision may
be abolished, upon a request of the citizen, by the procedure
established by the Government.
The disputed provision of Paragraph 3 of Article 21 of the
Law (wording 15 January 2002) does not mean that it contains
prohibition for a citizen to apply to court concerning
protection of his violated rights.
6. Taking account of the arguments set forth, one is to
conclude that the provision "if the implementation of the
decision has begun, it may be abolished by the procedure
established by the Government" of Paragraph 3 of Article 21 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002) is not in conflict with Paragraph 1 of Article 30 of the
Constitution.
XII
On the compliance of Item 2 of Paragraph 1 of Article 15
of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 29 October
2002) with Article 29 of the Constitution.
1. The petitioner, a group of members of the Seimas, in
its petition of 6 January 2003 requests to investigate whether
the provision of Article 15 of the Law on the Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property (wording of 29 October 2002) "residential houses,
parts thereof, flats shall be bought out by the State from the
citizens specified in Article 2 of this Law and compensated for
according to Article 16 of this Law if: <...> (2) private
ownership to them has been acquired according to the laws".
2. Paragraph 1 of Article 15 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 29 October 2002) contains the provision
that "residential houses, parts thereof, flats shall be bought
out by the State from the citizens specified in Article 2 of
this Law and compensated for according to Article 16 of this
Law if: <...> (2) private ownership to them has been acquired
according to the laws".
3. It needs to be noted that lawful state property could
not and did not appear on the grounds of illegal
nationalisation carried out by the occupation government, and
other illegal administrative acts, and the property disseized
from the people was factually only state managed property, but,
according to the laws, which were in force at that time, and
the procedure prescribed thereby, public, co-operative
organisations (enterprises) or collective farms were permitted
to transfer the right of ownership to their factually managed
residential houses, parts thereof, flats to natural persons.
The natural persons, while acquiring residential houses, parts
thereof, flats on contracts, did so according to legal acts and
conformed to the rules of conclusion of contracts which were in
force at that time, as well as performed the obligations
ensuing from the contracts. The Constitutional Court in its
ruling of 15 June 1994 held that "upon denial of the rights of
ownership which appeared on the basis of lawful contracts, the
contents of existing legal relations would be changed.
Therefore, while restoring the rights of ownership to
residential houses transferred for natural persons by the
state, public and co-operative organisations (enterprises) or
collective farms, the rights of natural persons, who have
acquired such property, should be protected along with the
rights of the former owners". The Constitutional Court also
held in the said ruling that "it would not be fair to seize the
residential house (or a part thereof) against the will of the
natural person, who has acquired it on the contract, without
violation of normative acts that were in effect at the time of
acquisition, and which is under the management and disposition
of this natural person, and to return it to the former owner".
4. Taking account of the arguments set forth, one is to
conclude that the provision of Paragraph 1 of Article 15 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 29 October 2002)
"residential houses, parts thereof, flats shall be bought out
by the State from the citizens indicated in Article 2 of this
Law and compensated for according to Article 16 of this Law if:
<...> 2) private ownership of them has been acquired according
to the laws" is not in conflict with Article 29 of the
Constitution.
XIII
On the compliance of Items 4, 5, 6 of Paragraph 1 of
Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) with Article 23 of the Constitution.
1. The petitioner, a group of members of the Seimas, in
its petition of 6 January 2003 requests to investigate whether
Items 4, 5, 6 of Paragraph 1 of Article 15 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) are not in
conflict with Article 23 of the Constitution.
2. Paragraph 1 of Article 15 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 29 October 2002) stipulates:
"Residential houses, parts thereof, flats shall be bought
out by the State from the citizens specified in Article 2 of
this Law and compensated for according to Article 16 of this
Law if: <...>
4) the tenants, who were unable to implement their right
to privatise them, reside there, if at least one of the
citizens specified in Article 2 of this Law has already been
given back residential houses, parts thereof, flats in kind or
these citizens have acquired the ownership of certain premises
privatised under the Law on Privatisation of Flats;
5) the rights of ownership of residential houses, parts
thereof, flats, where tenants, who were unable to implement
their right to privatise them, reside, have been restored to
the citizens, and the State did not fulfil the state guarantee
provided by legal acts in force to vacate the returned
premises, in case at least one of the citizens specified in
Article 2 of this Law has already been given back residential
houses, parts thereof, flats in kind or these citizens have
acquired the ownership of certain premises privatised under the
Law on Privatisation of Flats;
6) the tenants, who were unable to implement their right
to privatise them, reside there, if in the course of
restoration or after the restoration of the rights of ownership
to residential houses, parts thereof, one flat is given back to
the citizens specified in Article 2 of this Law in kind."
3. In the context of the case at issue, having compared
the legal regulation established in Paragraph 1 of Article 15
of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 29 October
2002) with that established by Paragraph 2 of Article 15 of the
said law (wording of 15 January 2002), one can see that Article
15 of the law (wording of 29 October 2002) was inter alia
amended and supplemented in the following way:
1) instead of the former provision of this article
(wording of 15 January 2002) that "residential houses, parts
thereof, flats shall be seized from the citizens specified in
Article 2 of this Law, save those specified in Paragraph 1 of
Article 20, for the needs of society and they shall be
compensated under Article 16 of this Law" it was established
that "the State shall buy out residential houses, parts
thereof, flats from the citizens specified in Article 2 of this
Law, and compensate for according to Article 16 of this Law".
The essence of this amendment is that the former formula
"seized for the needs of society" was changed by the formula
"bought out by the State".
2) this article (wording of 15 January 2002) contained the
provision "residential houses, parts thereof, flats shall be
seized from the citizens specified in Article 2 of this Law,
save those specified in Paragraph 1 of Article 20, for the
needs of society and they shall be compensated under Article 16
of this Law, if: <...> (2) the citizens have been restored the
rights of ownership to the residential houses, parts thereof,
flats subject to being returned in kind, in which the tenants
reside, who were unable to implement their right to privatise
them, when the citizens have been returned parts of the houses
in kind, in which they reside, or they have acquired the
ownership of certain premises privatised under the Law on
Privatisation of Flats; (3) the tenants reside therein, who
were unable to implement their right to privatise them, when
the citizens have been returned parts of the houses in kind, in
which they reside, or they have acquired the ownership of
certain premises privatised under the Law on Privatisation of
Flats"; this article (wording of 29 October 2002) provides that
"residential houses, parts thereof, flats shall be bought out
by the State from the citizens specified in Article 2 of this
Law and compensated for according to Article 16 of this Law if:
<...> (4) the tenants, who were unable to implement their right
to privatise them, reside there, if at least one of the
citizens specified in Article 2 of this Law has already been
given back residential houses, parts thereof, flats in kind or
these citizens have acquired the ownership of certain premises
privatised under the Law on Privatisation of Flats; (5) the
rights of ownership of residential houses, parts thereof,
flats, where tenants, who were unable to implement their right
to privatise them, reside, have been restored to the citizens,
and the State did not fulfil the state guarantee provided by
legal acts in force to vacate the returned premises, in case at
least one of the citizens specified in Article 2 of this Law
has already been given back residential houses, parts thereof,
flats in kind or these citizens have acquired the ownership of
certain premises privatised under the Law on Privatisation of
Flats; (6) the tenants, who were unable to implement their
right to privatise them, reside there, if in the course of
restoration or after the restoration of the rights of ownership
to residential houses, parts thereof, one flat is given back to
the citizens specified in Article 2 of this Law in kind."
Therefore the amendments and supplements of Article 15 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property made by the Law of 29
October 2002 did not establish essentially different legal
regulation from the one established in Article 15 (wording 15
January 2002):
1) upon changing the former formula of Article 15 (15
January 2002) "seized for the needs of society" by the formula
"bought out by the State", there remained the former legal
regulation establishing that the State shall buy out
residential houses, parts thereof, flats from the citizens,
whose ownership rights to residential houses, parts thereof,
flats have been restored;
2) the legal regulation which was established by Article
15 (wording of 15 January 2002) of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property remained in this article (wording 29 October 2002) as
well, stipulating that the rights of ownership of the citizens
may not be restored by giving back residential houses, parts
thereof, flats in kind, because, as indicated by the Law, the
tenants "who were unable to implement their right to privatise
them" reside there.
4. It has been held in this Ruling of the Constitutional
Court that Paragraph 2 of Article 15 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording 15 January 2002) to the extent
that it is established that "residential houses, parts thereof,
flats shall be seized from the citizens specified in Article 2
of this Law, save those specified in Paragraph 1 of Article 20,
for the needs of society and they shall be compensated under
Article 16 of this Law, if: <...> (2) the citizens have been
restored the rights of ownership to the residential houses,
parts thereof, flats subject to being returned in kind, in
which the tenants reside, who were unable to implement their
right to privatise them, when the citizens have been returned
parts of the houses in kind, in which they reside, or they have
acquired the ownership of certain premises privatised under the
Law on Privatisation of Flats; (3) the tenants reside therein,
who were unable to implement their right to privatise them,
when the citizens have been returned parts of the houses in
kind, in which they reside, or they have acquired the ownership
of certain premises privatised under the Law on Privatisation
of Flats" was in conflict with Article 23 and 29 of the
Constitution.
5. On the grounds of the same arguments, one is to
conclude that Paragraph 1 of Article 15 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) to the
extent that it provides that "residential houses, parts
thereof, flats shall be bought out by the State from the
citizens specified in Article 2 of this Law and compensated for
according to Article 16 of this Law if: <...> (4) the tenants,
who were unable to implement their right to privatise them,
reside there, if at least one of the citizens specified in
Article 2 of this Law has already been given back residential
houses, parts thereof, flats in kind or these citizens have
acquired the ownership of certain premises privatised under the
Law on Privatisation of Flats; (5) the rights of ownership of
residential houses, parts thereof, flats, where tenants, who
were unable to implement their right to privatise them, reside,
have been restored to the citizens, and the State did not
fulfil the state guarantee provided by legal acts in force to
vacate the returned premises, in case at least one of the
citizens specified in Article 2 of this Law has already been
given back residential houses, parts thereof, flats in kind or
these citizens have acquired the ownership of certain premises
privatised under the Law on Privatisation of Flats; (6) the
tenants, who were unable to implement their right to privatise
them, reside there, if in the course of restoration or after
the restoration of the rights of ownership to residential
houses, parts thereof, one flat is given back to the citizens
specified in Article 2 of the Law in kind" is in conflict with
Article 23 and 29 of the Constitution.
XIV
On the compliance of Paragraph 2 of Article 15 of the Law
on the Restoration of the Rights of Ownership of Citizens to
the Existing Real Property (wording of 29 October 2002) with
Articles 23, 29 and Paragraph 1 of Article 30 of the
Constitution.
1. The petitioner, a group of members of the Seimas, in
its petition of 6 January 2003 requests to investigate whether
Paragraph 2 of Article 15 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 29 October 2002) is not in conflict with Articles
23, 29 and Paragraph 1 of Article 30 of the Constitution.
2. Paragraph 2 of Article 15 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 29 October 2002) stipulates: "Institutions
indicated in Article 17 of this Law, within 30 days, shall
inform the persons specified in Items 4, 5 and 6 of Paragraph 1
of this Article by registered mail about the adopted decision
to buy out the residential houses, parts thereof, flats and
register the property in the Real Property Register as state or
municipal property".
3. Paragraph 2 of Article 15 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 29 October 2002) provides for the types of
actions that the institutions specified in Article 17 of the
Law must carry out after the decision to buy out the
residential houses, parts thereof, flats has been adopted. This
means that Paragraph 2 of this article regulates the
implementation of the adopted decisions to buy out residential
houses, parts thereof, flats specified in Items 4, 5 and 6 of
Paragraph 1 of Article 15 of this law.
The wording "about the adopted decision to buy out the
residential houses, parts thereof, flats" means that Paragraph
2 of Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) also establishes the right of the state to buy
out the residential houses, parts thereof, flats specified in
Items 4, 5 and 6 of Paragraph 1 of Article 15 of this Law
(wording of 29 October 2002) from citizens.
4. While deciding, whether Paragraph 2 of Article 15 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 29 October
2002) is not in conflict with Article 23 of the Constitution,
one should take account of the fact that the provisions of this
paragraph are inseparable from the provisions of Paragraph 1 of
Article 15 of the said law (wording of 29 October 2002), which
provide that "residential houses, parts thereof, flats shall be
bought out by the State from the citizens specified in Article
2 of this Law and compensated for according to Article 16 of
this Law if: <...> (4) the tenants, who were unable to
implement their right to privatise them, reside there, if at
least one of the citizens specified in Article 2 of this Law
has already been given back residential houses, parts thereof,
flats in kind or these citizens have acquired the ownership of
certain premises privatised under the Law on Privatisation of
Flats; (5) the rights of ownership of residential houses, parts
thereof, flats, where tenants, who were unable to implement
their right to privatise them, reside, have been restored to
the citizens, and the State did not fulfil the state guarantee
provided by legal acts in force to vacate the returned
premises, in case at least one of the citizens specified in
Article 2 of this Law has already been given back residential
houses, parts thereof, flats in kind or these citizens have
acquired the ownership of certain premises privatised under the
Law on Privatisation of Flats; (6) the tenants, who were unable
to implement their right to privatise them, reside there, if in
the course of restoration or after the restoration of the
rights of ownership to residential houses, parts thereof, one
flat is given back to the citizens specified in Article 2 of
the Law in kind".
It is obvious that according to Paragraph 2 of Article 15
of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 29 October
2002), information about the adopted decision to buy out the
residential houses, parts thereof, flats can be delivered only
after adoption of the decision to buy out residential houses,
parts thereof, flats.
5. It has been held in this Ruling of the Constitutional
Court that the provisions of Paragraph 1 of Article 15 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 29 October 2002)
stipulating that "residential houses, parts thereof, flats
shall be bought out by the State from the citizens specified in
Article 2 of this Law and compensated for according to Article
16 of this Law if: <...> (4) the tenants, who were unable to
implement their right to privatise them, reside there, if at
least one of the citizens specified in Article 2 of this Law
has already been given back residential houses, parts thereof,
flats in kind or these citizens have acquired the ownership of
certain premises privatised under the Law on Privatisation of
Flats; (5) the rights of ownership of residential houses, parts
thereof, flats, where tenants, who were unable to implement
their right to privatise them, reside, have been restored to
the citizens, and the State did not fulfil the state guarantee
provided by legal acts in force to vacate the returned
premises, in case at least one of the citizens specified in
Article 2 of this Law has already been given back residential
houses, parts thereof, flats in kind or these citizens have
acquired the ownership of certain premises privatised under the
Law on Privatisation of Flats; (6) the tenants, who were unable
to implement their right to privatise them, reside there, if in
the course of restoration or after the restoration of the
rights of ownership to residential houses, parts thereof, one
flat is given back to the citizens specified in Article 2 of
the Law in kind" are in conflict with Articles 23 and 29 of the
Constitution.
6. Taking account of the fact that this Ruling of the
Constitutional Court has recognised the provisions of Paragraph
1 of Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002), establishing the buying out of residential
houses, parts thereof, flats indicated in Items 4, 5 and 6 of
this paragraph, to be in conflict with Articles 23 and 29 of
the Constitution, also taking account of the fact that
Paragraph 2 of Article 15 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 29 October 2002) regulates the implementation of
the said provisions, which are in conflict with the
Constitution, one is to hold that Paragraph 2 of Article 15 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 29 October
2002) is in conflict with Articles 23 and 29 of the
Constitution.
7. While deciding, whether Paragraph 2 of Article 15 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 29 October
2002) is not in conflict with Paragraph 1 of Article 30 of the
Constitution, it should be noted that, upon establishing in
Paragraph 1 of Article 15 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 29 October 2002) the provisions concerning the
buying out of residential houses, parts thereof, flats,
specified therein, the law did not establish the duty of
institutions, which adopt decisions to buy out the said
residential houses, parts thereof, flats, to inform the
citizen, from whom the said residential houses, parts thereof,
flats are bought out, about such a decision before its
adoption. Paragraph 2 of Article 15 of the law (wording of 29
October 2002) establishes a duty of institutions to inform the
citizens about the adopted decision to buy out residential
houses, parts thereof, flats; this paragraph also provides that
information must be delivered within 30 days. Therefore,
Paragraph 2 of Article 15 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 29 October 2002) establishes a duty of institutions
to inform the citizens about a legal fact that has occurred,
i.e. that their residential houses, parts thereof, flats have
already been bought out; under Paragraph 2 of Article 15 of the
said law (wording of 29 October 2002), the citizen may be
informed about the said legal fact not immediately after the
adoption of such a decision, but much later-within 30 days.
8. Paragraph 2 of Article 15 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 29 October 2002) also establishes a duty
to the institutions to register the bought out residential
houses, parts thereof, flats as state or municipal property in
the Real Property Register within three months. It needs to be
noted that the law does not provide from which moment one
begins to calculate the said three month period-whether from
the adoption of the decision to buy out the residential houses,
parts thereof, flats, or the day of delivering the information
to the citizens, whose premises have been bought out.
Therefore, according to the legal regulation established in
Paragraph 2 of Article 15 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 29 October 2002), there exists a possibility for a
legal situation when the residential houses, parts thereof,
flats bought out from a citizen, will be registered in the Real
Property Register as state or municipal property without
informing the citizens that the residential houses, parts
thereof, flats have been bought out from them.
Attention should be paid to the fact that, according to
Paragraph 3 of Article 20 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 29 October 2002), the tenants who reside in the
residential houses, parts thereof, flats subject to being
bought out by the state shall acquire the right to buy out the
said premises under preferential conditions according to the
procedure established by the Government after the legal
registration of the residential house, part thereof, flat under
the name of the state or the municipality in the Real Property
Register. Thus, the legal regulation established by Paragraph 2
of Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) creates preconditions for a legal situation,
which will allow to sell the residential houses, parts thereof,
flats, bought out from the citizens, to the tenants without
even informing the citizens that their residential houses,
parts thereof, flats have been bought out.
9. It needs to be noted that though the provisions of
Paragraph 2 of Article 15 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 29 October 2002) do not formally deprive a person
of the right to apply to court for the protection of violated
rights, however, taking account of the fact that they are
directly related with the provisions of Items 4, 5 and 6 of
Article 15 of the Law (wording of 29 October 2002), which, as
has been stated in this ruling of the Constitutional Court, are
in conflict with Articles 23 and 29 of the Constitution, also
taking account of the fact that the provisions of Paragraph 2
of Article 15 of the Law (wording of 29 October 2002) regulate
the implementation of Items 4,5 and 6 of Paragraph 1 of Article
15 of the law (wording of 29 October 2002), which are in
conflict with the Constitution, one is to conclude that the
legal regulation established in Paragraph 2 of Article 15
(wording 29 October 2002) is one which virtually interferes
with the person's opportunity to make use of his constitutional
right to the real judicial protection.
10. Taking account of the arguments set forth, one is to
conclude that Paragraph 2 of Article 15 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) is in
conflict with Paragraph 1 of Article 30 of the Constitution.
XV
On the compliance of Paragraph 4 of Article 15 of the Law
on the Restoration of the Rights of Ownership of Citizens to
the Existing Real Property (wording of 29 October 2002) with
Article 23 of the Constitution.
1. The petitioner, a group of members of the Seimas, in
its petition of 6 January 2003 requests to investigate whether
Paragraph 4 of Article 15 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 29 October 2002) is not in conflict with Article 23
of the Constitution.
2. Paragraph 4 of Article 15 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 29 October 2002) provides: "The executive
institution of the municipality shall rent residential houses,
parts thereof, flats seized from the citizens, to the tenants,
who reside there."
3. The provision of Paragraph 4 of Article 15 of the Law
on the Restoration of the Rights of Ownership of Citizens to
the Existing Real Property (wording of 29 October 2002) that
the executive institution of the municipality rents residential
houses, parts thereof, flats, seized from the citizens, to the
tenants residing there, means that this article regulates the
implementation of the adopted decisions to seize residential
houses, parts thereof, flats indicated in Items 4, 5 and 6 of
Paragraph 1 of Article 15 of the Law (wording of 29 October
2002) from the citizens.
4. The formula "residential houses, parts thereof, flats
seized from the citizens" means that this paragraph also
establishes the right of the state to seize the residential
houses, parts thereof, flats specified in Items 4, 5 and 6 of
Paragraph 1 of Article 15 of the said law (wording of 29
October 2002) from the citizens.
5. While deciding whether Paragraph 4 of Article 15 of the
Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property (wording of 29 October 2002) is
not in conflict with Article 23 of the Constitution, one should
take account of the fact that the provisions of Paragraph 4 of
Article 15 of the Law (wording of 29 October 2002) are
inseparable from the provisions of Paragraph 1 of Article 15
(wording of 29 October 2002) stipulating that "residential
houses, parts thereof, flats shall be bought out by the State
from the citizens specified in Article 2 of this Law and
compensated for according to Article 16 of this Law if: <...>
(4) the tenants, who were unable to implement their right to
privatise them, reside there, if at least one of the citizens
specified in Article 2 of this Law has already been given back
residential houses, parts thereof, flats in kind or these
citizens have acquired the ownership of certain premises
privatised under the Law on Privatisation of Flats; (5) the
rights of ownership of residential houses, parts thereof,
flats, where tenants, who were unable to implement their right
to privatise them, reside, have been restored to the citizens,
and the State did not fulfil the state guarantee provided by
legal acts in force to vacate the returned premises, in case at
least one of the citizens specified in Article 2 of this Law
has already been given back residential houses, parts thereof,
flats in kind or these citizens have acquired the ownership of
certain premises privatised under the Law on Privatisation of
Flats; (6) the tenants, who were unable to implement their
right to privatise them, reside there, if in the course of
restoration or after the restoration of the rights of ownership
to residential houses, parts thereof, one flat is given back to
the citizens specified in Article 2 of the Law in kind".
6. It has been held in this Ruling of the Constitutional
Court that the said provisions of Paragraph 1 of Article 15 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 29 October
2002) are in conflict with Articles 23 and 29 of the
Constitution.
7. Taking account of the fact that this Ruling of the
Constitutional Court has recognised the provisions of Paragraph
1 of Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002), which establish buying out of the residential
houses, parts thereof, flats specified in Items 4, 5 and 6 of
this paragraph, to be in conflict with Articles 23 and 29 of
the Constitution, as well as of the fact that Paragraph 4 of
Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) regulates the implementation of the
above-mentioned provisions, which are in conflict with the
Constitution, one is to hold that Paragraph 4 of Article 15 of
the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 29 October
2002) is in conflict with Articles 23 and 29 of the
Constitution.
XVI
On the compliance of Paragraph 10 of Article 16 of the Law
on the Restoration of the Rights of Ownership of Citizens to
the Existing Real Property (wording of 29 October 2002) with
Article 23 of the Constitution.
1. The petitioner, a group of members of the Seimas, in
its petition of 6 January 2003 requests to investigate whether
Paragraph 10 of Article 16 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 29 October 2002) is not in conflict with Article 23
of the Constitution.
2. Paragraph 10 of Article 16 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) stipulates:
"The State shall reimburse citizens for the residential
houses, parts thereof, flats which are bought out by the State,
by fairly compensating according to the market value, pursuant
the Law on the Basis for Evaluation of Property and Business,
in the following ways:
1) by transferring gratis for their ownership the flats,
rented by them, from the state or municipal housing stock, the
difference in values whereof shall be paid under procedure
established by the Government;
2) by transferring gratis, under procedure established by
the Government, the ownership of the flats which are equal in
value to the previously held houses, parts thereof, flats;
3) by transferring gratis the ownership of a new plot of
land for individual construction, equal in value to the houses,
parts thereof, flats held previously, in the locality where
they were situated. At the request of the citizen, an
equivalent new plot of land for individual construction may be,
under procedure established by the Government, transferred
gratis for ownership in the towns and rural areas other than
those where the residential houses, parts thereof, flats were
situated, except the towns of Vilnius, Kaunas, Klaipėda,
Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai,
Palanga, Birštonas, and Neringa;
4) by transferring gratis the ownership of vacant, not
rented buildings, facilities or parts thereof equal in value to
the houses, parts thereof, flats held previously. The procedure
for the transfer of these buildings, structures and parts
thereof shall be established by the Government;
5) by making void a citizen's liabilities to the State by
way of inclusion, which occurred after the seizure of the real
property up to the passing a decision to restore the rights of
ownership, in accordance with the procedure established by the
Government;
6) by transferring gratis the ownership of other property
under procedure established by the Government;
7) in cash and/or in securities."
3. Paragraph 10 of Article 16 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) only
establishes possible ways of compensation for the bought out
residential houses, parts thereof, flats to the citizens. The
fact that the law establishes possible ways of compensation for
the bought out residential houses, parts thereof, flats to the
citizens cannot be considered inconsistent with Article 23 of
the Constitution, because just compensation also ensures
restoration of the rights of ownership, if there is no
possibility to give back residential houses, parts thereof,
flats to the owners in kind (Constitutional Court rulings of 27
May 1994, 22 December 1995, 18 June 1998).
4. Taking account of the arguments set forth, one is to
conclude that Paragraph 10 of Article 16 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) is not in
conflict with Article 23 of the Constitution.
XVII
On the compliance of the provision "the tenants who reside
in the residential houses, parts thereof, flats subject to
being bought out by the state shall acquire the right to buy
out the said premises under preferential conditions according
to the procedure established by the Government after the legal
registration of the residential house, part thereof, flat under
the name of the state or the municipality in the Real Property
Register" of Paragraph 3 of Article 20 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 29 October 2002) with
Articles 23, 29, and Paragraph 1 of Article 30 of the
Constitution.
1. The petitioner, a group of members of the Seimas, in
its petition of 6 January 2003, requests to investigate whether
the provision "the tenants who reside in the residential
houses, parts thereof, flats subject to being bought out by the
state shall acquire the right to buy out the said premises
under preferential conditions according to the procedure
established by the Government after the legal registration of
the residential house, part thereof, flat under the name of the
state or the municipality in the Real Property Register" of
Paragraph 3 of Article 20 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 29 October 2002) is not in conflict with Articles
23, 29, and Paragraph 1 of Article 30 of the Constitution.
2. Paragraph 3 of Article 20 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 29 October 2002) provides: "The tenants
who reside in the residential houses, parts thereof, flats
subject to being bought out by the state shall acquire the
right to buy out the said premises under preferential
conditions according to the procedure established by the
Government after the legal registration of the residential
house, part thereof, flat under the name of the state or the
municipality in the Real Property Register."
3. Paragraph 3 of Article 20 of the aforesaid law (wording
of 29 October 2002) establishes the right of the tenants who
reside in the residential houses, parts thereof, flats subject
to being bought out by the state to buy out the said premises
under preferential conditions according to the procedure
established by the Government after the legal registration of
the residential house, part thereof, flat under the name of the
state or the municipality in the Real Property Register. It
needs to be noted that this right of the tenants to buy out the
said premises under preferential conditions is linked with the
right of the state provided for in Paragraph 1 of Article 15 of
the law (wording of 29 October 2002) to buy out the residential
houses, parts thereof, flats specified in Items 4, 5 and 6 of
Paragraph 1 of Article 15 of the same law, i.e., it is such
residential houses, parts thereof, flats bought out by the
state that the residents have the right to buy out under
procedure established by the Government.
4. It has been held in this Ruling of the Constitutional
Court that the provisions of Items 4, 5 and 6 of Paragraph 1 of
Article 15 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) establishing the right of the state to buy out
the residential houses, parts thereof, flats specified in Items
4, 5 and 6 of Paragraph 1 of Article 15 of the same law
(wording of 29 October 2002) are in conflict with Articles 23
and 29 of the Constitution, that Paragraph 2 of Article 15 of
the same law (wording of 29 October 2002) is in conflict with
Articles 23 and 29 as well as Paragraph 1 of Article 30 of the
Constitution, that Paragraph 4 of Article 15 of the same law
(wording of 29 October 2002) is in conflict with Articles 23
and 29 of the Constitution.
Having held this, one is also to hold that the provision
"the tenants who reside in the residential houses, parts
thereof, flats subject to being bought out by the state shall
acquire the right to buy out the said premises under
preferential conditions according to the procedure established
by the Government after the legal registration of the
residential house, part thereof, flat under the name of the
state or the municipality in the Real Property Register" of
Paragraph 3 of Article 20 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 29 October 2002), to the extent that it establishes
the right of the tenants to buy out under preferential
conditions also the residential houses, parts thereof, flats
specified in Items 4, 5 and 6 of Paragraph 1 of Article 15 of
the same law is in conflict with Articles 23, 29, and Paragraph
1 of Article 30 of the Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, 56, Item
2 of Paragraph 1 of Article 69 and Paragraph 3 of the same
article of the Law on the Constitutional Court of the Republic
of Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
1. To recognise that the provision of Article 14 of the
Republic of Lithuania Law "On the Procedure and Conditions of
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property" (wording of 12 January 1993) permitting
the state to buy out the residential houses from the persons
specified in Article 2 of this law provided they are
indispensable for state necessities was not in conflict with
the Constitution of the Republic of Lithuania.
2. To recognise that Government of the Republic of
Lithuania Resolution No. 27 "On the Buying Out of the
Residential Houses Which are Indispensable for State
Necessities" of 17 January 1994 to the extent that it confirmed
that the residential house at Vytauto Ave. 27, Kaunas, was
indispensable for state necessities and was to be bought out is
not in conflict with the Constitution of the Republic of
Lithuania and the provision of Article 14 of the Republic of
Lithuania Law "On the Procedure and Conditions of Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property" (wording of 12 January 1993) permitting the state to
buy out the residential houses which are indispensable for
state necessities.
3. To recognise that Paragraph 1 of Article 2 of the
Republic of Lithuania Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
15 January 2002 and wording of 29 October 2002) to the extent
that it no longer contains the provision which used to be in
Item 5 (wording of 13 May 1999) of the same paragraph, under
which it used to be established that the rights of ownership to
the real property were to be restored to the citizens of the
Republic of Lithuania to whom the property had been transferred
by testament (house testament) or agreements (of purchase and
sale, gift, or by another written document) while disregarding
the form and procedure established by the law, also the
citizens, who had been bequeathed property by testament by
successors to the rights of the property, is in conflict with
Articles 23 and 29 of the Constitution of the Republic of
Lithuania as well as the constitutional principle of a state
under the rule of law.
4. To recognise that that the provision "the rights of
ownership to the real property specified in Article 3 of this
law shall be restored to the citizens of the Republic of
Lithuania whose property was not <...> mortgaged prior to the
15 June 1940 occupation" of Item 5 of Paragraph 1 of Article 2
of the Republic of Lithuania Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(wording of 15 January 2002) was in conflict with Articles 23
and 29 of the Constitution of the Republic of Lithuania.
5. To recognise that that the provision "the rights of
ownership to the real property specified in Article 3 of this
law shall be restored to the citizens of the Republic of
Lithuania whose property was not sold by auction <...> prior to
the 15 June 1940 occupation" of Item 5 of Paragraph 1 of
Article 2 of the Republic of Lithuania Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 15 January 2002) was not in conflict with
the Constitution of the Republic of Lithuania.
6. To recognise that Paragraph 2 of Article 15 of the
Republic of Lithuania Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
15 January 2002) to the extent that it provides that
"residential houses, parts thereof, flats shall be seized from
the citizens specified in Article 2 of this Law, save those
specified in Paragraph 1 of Article 20, for the needs of
society and they shall be compensated under Article 16 of this
Law, if: <...> (2) the citizens have been restored the rights
of ownership to the residential houses, parts thereof, flats
subject to being returned in kind, in which the tenants reside,
who were unable to implement their right to privatise them,
when the citizens have been returned parts of the houses in
kind, in which they reside, or they have acquired the ownership
of certain premises privatised under the Law on Privatisation
of Flats; (3) the tenants reside therein, who were unable to
implement their right to privatise them, when the citizens have
been returned parts of the houses in kind, in which they
reside, or they have acquired the ownership of certain premises
privatised under the Law on Privatisation of Flats" was in
conflict with Articles 23 and 29 of the Constitution of the
Republic of Lithuania.
7. To recognise that Article 20 of the Republic of
Lithuania Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002) to the extent that this article no longer contains the
provision "until that time the owner shall be prohibited <...>
from evicting the tenants" which used to be in Paragraph 1 of
the same article (wording of 13 May 1999) is not in conflict
with the Constitution of the Republic of Lithuania.
8. To recognise that Article 20 of the Republic of
Lithuania Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 15 January
2002) to the extent that this article no longer contains the
provision "the tenants who continue to reside in the
residential houses, parts thereof, flats the owners of which do
not wish to retrieve them, shall acquire the right to buy out
these premises" which used to be in Paragraph 6 of the same
article (wording of 13 May 1999) is in conflict with Article 29
of the Constitution of the Republic of Lithuania.
9. To recognise that the provision "if the implementation
of the decision has begun, it may be abolished by the procedure
established by the Government" of Paragraph 3 of Article 21 of
the Republic of Lithuania Law on the Restoration of the Rights
of Ownership of Citizens to the Existing Real Property (wording
of 15 January 2002) is not in conflict with the Constitution of
the Republic of Lithuania.
10. To recognise that the provision of Paragraph 1 of
Article 15 of the Republic of Lithuania Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 29 October 2002) "residential houses,
parts thereof, flats shall be bought out by the State from the
citizens indicated in Article 2 of this Law and compensated for
according to Article 16 of this Law if: <...> 2) private
ownership of them has been acquired according to the laws" is
not in conflict with the Constitution of the Republic of
Lithuania.
11. To recognise that Paragraph 1 of Article 15 of the
Republic of Lithuania Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) to the extent that it provides that
"residential houses, parts thereof, flats shall be bought out
by the State from the citizens specified in Article 2 of this
Law and compensated for according to Article 16 of this Law if:
<...> (4) the tenants, who were unable to implement their right
to privatise them, reside there, if at least one of the
citizens specified in Article 2 of this Law has already been
given back residential houses, parts thereof, flats in kind or
these citizens have acquired the ownership of certain premises
privatised under the Law on Privatisation of Flats; (5) the
rights of ownership of residential houses, parts thereof,
flats, where tenants, who were unable to implement their right
to privatise them, reside, have been restored to the citizens,
and the State did not fulfil the state guarantee provided by
legal acts in force to vacate the returned premises, in case at
least one of the citizens specified in Article 2 of this Law
has already been given back residential houses, parts thereof,
flats in kind or these citizens have acquired the ownership of
certain premises privatised under the Law on Privatisation of
Flats; (6) the tenants, who were unable to implement their
right to privatise them, reside there, if in the course of
restoration or after the restoration of the rights of ownership
to residential houses, parts thereof, one flat is given back to
the citizens specified in Article 2 of the Law in kind" is in
conflict with Article 23 and 29 of the Constitution of the
Republic of Lithuania.
12. To recognise that Paragraph 2 of Article 15 of the
Republic of Lithuania Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) is in conflict with Articles 23, 29, and
Paragraph 1 of Article 30 of the Constitution of the Republic
of Lithuania.
13. To recognise that Paragraph 4 of Article 15 of the
Republic of Lithuania Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) is in conflict with Articles 23 and 29 of the
Constitution of the Republic of Lithuania.
14. To recognise that Paragraph 10 of Article 16 of the
Republic of Lithuania Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) is not in conflict with the Constitution of
the Republic of Lithuania.
15. To recognise that the provision "the tenants who
reside in the residential houses, parts thereof, flats subject
to being bought out by the state shall acquire the right to buy
out the said premises under preferential conditions according
to the procedure established by the Government after the legal
registration of the residential house, part thereof, flat under
the name of the state or the municipality in the Real Property
Register" of Paragraph 3 of Article 20 of the Republic of
Lithuania Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property (wording of 29 October
2002), to the extent that it establishes the right of the
tenants to buy out under preferential conditions also the
residential houses, parts thereof, flats specified in Items 4,
5 and 6 of Paragraph 1 of Article 15 of the same law is in
conflict with Articles 23, 29, and Paragraph 1 of Article 30 of
the Constitution of the Republic of Lithuania.
16. To dismiss the case in the part concerning the
compliance of the provision "the special legal norms of this
Law shall regulate the legal relations of the restoration of
the rights of ownership to the existing real property" of the
Preamble of the Republic of Lithuania Law on the Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property (wording of 29 October 2002) with the Constitution of
the Republic of Lithuania.
17. To dismiss the case in the part concerning the
compliance of Item 1 of Paragraph 1 of Article 15 of the
Republic of Lithuania Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of
29 October 2002) with the Constitution of the Republic of
Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas