Lietuviškai
Case No. 10/02
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF THE REPUBLIC OF LITHUANIA LAW "ON THE
PROCEDURE OF REORGANISATION AND LIQUIDATION OF ESTABLISHMENTS
OF CULTURE" (WORDING OF 13 JUNE 1995) AND ITEMS 1, 2.3 AND 2.4
OF GOVERNMENT OF THE REPUBLIC OF LITHUANIA RESOLUTION NO. 1320
"ON THE HOUSE OF SIGNATORIES TO THE ACT OF INDEPENDENCE OF
LITHUANIA AND THE HOUSE OF ARTISTS OF LITHUANIA" OF 28 NOVEMBER
1997 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
8 July 2005
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas
Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the Seimas of the Republic of
Lithuania, the party concerned, who was Marytė Bagdonavičienė,
the chief expert at the Legal Department of the Office of the
Seimas,
the representative of the Government of the Republic of
Lithuania, the party concerned, who was Sigutė Pučienė, the
Head of Law and Personnel Division at the Ministry of Culture
of the Republic of Lithuania,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania, as well as Article 1 of the Law on
the Constitutional Court of the Republic of Lithuania, on 7
June 2005 in its public hearing heard Case No. 10/02 which
originated in a petition of the Vilnius Regional Administrative
Court, the petitioner, requesting to investigate as to whether
the Republic of Lithuania Law "On the Procedure of
Reorganisation and Liquidation of Establishments of Culture"
(wording of 13 June 1995) is not in conflict with Paragraph 2
of Article 120 of the Constitution of the Republic of
Lithuania, Paragraph 1 of Article 3, Paragraphs 2 and 5 of
Article 4, and Paragraph 1 of Article 6 of the European Charter
of Local Self-Government, as well as whether Item 2.4 of
Government of the Republic of Lithuania Resolution No. 1320 "On
the House of Signatories to the Act of Independence of
Lithuania and the House of Artists of Lithuania" of 28 November
1997 is not in conflict with Paragraph 2 of Article 120 of the
Constitution of the Republic of Lithuania, Paragraph 1 of
Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of
Article 6 of the European Charter of Local Self-Government, as
well as Item 4 of Paragraph 1 of Article 4 and Item 13 of
Paragraph 1 of Article 6 of the Republic of Lithuania Law on
Local Self-Government.
The Constitutional Court
has established:
I
1. On 28 October 1993, the Seimas adopted the Republic of
Lithuania Law "On the Procedure of Reorganisation and
Liquidation of Establishments of Culture" (Official Gazette
Valstybės žinios, 1993, No. 59-1143).
On 13 June 1995, the Seimas adopted the Republic of
Lithuania Law "On Amending the Republic of Lithuania Law 'On
the Procedure of Reorganisation and Liquidation of
Establishments of Culture'" (Official Gazette Valstybės žinios,
1995, No. 53-1302).
2. On 28 November 1997, the Government adopted Resolution
No. 1320 "On the House of Signatories to the Act of
Independence of Lithuania and the House of Artists of
Lithuania" (Official Gazette Valstybės žinios, 1997, No.
111-2807).
3. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate as to whether the Law "On
the Procedure of Reorganisation and Liquidation of
Establishments of Culture" (wording of 13 June 1995) is not in
conflict with Paragraph 2 of Article 120 of the Constitution,
Paragraph 1 of Article 3, Paragraphs 2 and 5 of Article 4, and
Paragraph 1 of Article 6 of the European Charter of Local
Self-Government, as well as whether Item 2.4 of Government
Resolution No. 1320 "On the House of Signatories to the Act of
Independence of Lithuania and the House of Artists of
Lithuania" of 28 November 1997 is not in conflict with
Paragraph 2 of Article 120 of the Constitution, Paragraph 1 of
Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of
Article 6 of the European Charter of Local Self-Government, as
well as Item 4 of Paragraph 1 of Article 4 and Item 13 of
Paragraph 1 of Article 6 of the Law on Local Self-Government.
II
The petition of the petitioner is based on the following
arguments.
It was established in the Law "On the Procedure of
Reorganisation and Liquidation of Establishments of Culture"
(wording of 13 June 1995) that establishments of culture that
belong to the sphere of regulation of municipal councils may be
reorganised or liquidated only upon receipt of written consent
by the Ministry of Culture of the Republic of Lithuania.
By Item 1 of Government Resolution No. 1320 "On the House
of Signatories to the Act of Independence of Lithuania and the
House of Artists of Lithuania" of 28 November 1997 the Ministry
of Culture was obligated to transfer, by 1 January 1998, the
functions of founder of the House of Artists of Lithuania to
the Vilnius City Municipality, and by Item 2.4 of this
resolution the Vilnius City Municipality was commissioned with
the task, while discharging the functions of founder of the
House of Artists of Lithuania, not to change the purpose of the
House, type of its activity and its status, and to document
this in a trilateral agreement on cooperation between the
Vilnius City Board, the Ministry of Culture and the House of
Artists of Lithuania.
It is established in Article 120 of the Constitution that
the state shall support municipalities (Paragraph 1);
municipalities shall act freely and independently within their
competence, which shall be established by the Constitution and
laws (Paragraph 2).
According to Item 4 (wording of 12 October 2000) of
Paragraph 1 of Article 4 of the Law on Local Self-Government,
one of the principles on which local self-government is based
is freedom and independence of the activities of municipal
institutions when they, while implementing laws, other legal
acts and obligations to the community, adopt decisions. In
Article 6 of the Law on Local Self-Government one established
independent functions of municipalities and in Item 13 (wording
of 12 October 2000) of Paragraph 1 of this article one
established that they are assigned with other independent
functions that are not assigned to state institutions.
In Paragraph 1 of Article 3 of the European Charter of
Local Self-Government local self-government is defined as the
right and the ability of local authorities, within the limits
of the law, to regulate and manage a substantial share of
public affairs under their own responsibility and in the
interests of the local population. Pursuant to Paragraph 2 of
Article 4 of the aforementioned charter, local authorities
shall, within the limits of the law, have full discretion to
exercise their initiative with regard to any matter which is
not excluded from their competence nor assigned to any other
authority; it is established in Paragraph 5 of Article 4
thereof that where powers are delegated to them by a central or
regional authority, local authorities shall, insofar as
possible, be allowed discretion in adapting their exercise to
local conditions. In Paragraph 1 of Article 6 of the European
Charter of Local Self-Government local authorities are granted
the right to determine independently their own internal
administrative structures in order to adapt them to local needs
and ensure effective possession.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations of the
representative of the Seimas, the party concerned, who was E.
Mušinskis, a senior consultant at the Legal Department of the
Office of the Seimas, the representative of the Seimas, the
party concerned, M. Bagdonavičienė, and the representative of
the Government, the party concerned, who was S. Pučienė.
1. E. Mušinskis and M. Bagdonavičienė state that the
principle of co-ordination of interests of municipalities and
the state is consolidated in the Constitution. It is
consolidated in Article 4 of the Law on Local Self-Government
as well.
According to the representatives of the party concerned,
the Seimas, in Lithuania the model of administrative
supervision over activity of municipalities has been formed
where municipalities are supervised by the executive power of
the state. In Paragraph 2 of Article 123 of the Constitution
one has entrenched the institute of supervision of
administrative activity of municipalities. The legislator
enjoys the right to establish various legal means by which
institutions of central power are empowered to supervise the
activity of municipal institutions. The representatives of the
party concerned, the Seimas, believe that the duty, established
in the disputed law, of municipal councils to obtain a written
consent of the Ministry of Culture concerning reorganisation or
liquidation of establishments of culture that belong to the
sphere of regulation by municipalities is one of the forms of
implementation of the principle of co-ordination of interests
of the state and municipalities.
Alongside, the representatives of the party concerned, the
Seimas, note that the provision of Paragraph 2 of Article 120
of the Constitution that municipalities shall act freely and
independently is linked to the provision of this paragraph that
municipalities shall act freely and independently within their
competence, which shall be established by the Constitution and
laws. E. Mušinskis and M. Bagdonavičienė indicate that an
analogous provision is consolidated in Paragraph 1 of Article 3
and Paragraph 2 of Article 4 of the European Charter of Local
Self-Government as well.
According to E. Mušinskis and M. Bagdonavičienė, the
Ministry of Culture within its competence performs the
functions of state administration in the area of culture which
is assigned to it by laws and other legal acts, and implements
state policy in this sphere. According to the representatives
of the Seimas, institutions of the executive which implement
the established state policy in any area in the whole territory
of the state, should have a possibility to control and
coordinate the execution of provisions of this policy in the
whole territory of the state, thus in all municipalities as
well. Coordination of relations between the Ministry of Culture
and municipal councils when reorganising or liquidating
municipal establishments of culture is an important condition
of even and efficient implementation of state policy of
culture, while taking account of social and cultural situation
in the territory of each municipality, cultural needs of local
community, capabilities of the state and other conditions.
In the opinion of the representatives of the party
concerned, the Seimas, by the disputed regulation which is
established in the law one does not revoke the actual right of
municipalities to reorganise or liquidate the establishments of
culture: the entrenched therein duty of municipal councils to
obtain written consent of the Ministry of Culture is to be
considered not a limitation of the right of municipal councils,
related to reorganisation or liquidation of establishments of
culture that were established by them, but rather a
co-ordination of joint actions of the state and municipalities
when striving for the social objectives that are important to
the state. According to the representative of the Seimas, the
party concerned, the provisions of the disputed law do not
limit the competence of municipalities which is set in the
Constitution and which comprises also the right of municipal
councils to reorganise or liquidate municipal establishments of
culture and do not deny the guarantees of judicial defence of
municipal rights, as pursuant to Article 122 of the
Constitution municipal councils have the right to apply at any
moment to court regarding the violation of their rights upon
the procedure established in laws.
Therefore the representatives of the party concerned, the
Seimas, believe that the duty of municipal councils, which is
established in the disputed law, to obtain written consent of
the Ministry of Culture concerning reorganisation or
liquidation of establishments of culture that belong to the
sphere of regulation by municipalities is not in conflict with
Paragraph 2 of Article 120 of the Constitution.
2. S. Pučienė, the representative of the Government, the
party concerned, states that in the Law "On the Procedure of
Reorganisation and Liquidation of Establishments of Culture"
that was effective till 26 October 2004 one established the
procedure of reorganisation or liquidation of establishments of
culture, but did not deprive municipal institutions of the
right to reorganise or liquidate establishments of culture.
S. Pučienė pointed out that the Vilnius City Municipality
decided to liquidate the House of Artists of Lithuania, a
budgetary establishment, without addressing the Ministry of
Culture concerning this issue. However, in her opinion, this
does not mean that Government Resolution No. 1320 "On the House
of Signatories to the Act of Independence of Lithuania and the
House of Artists of Lithuania" of 28 November 1997 is in
conflict with Paragraph 2 of Article 120 of the Constitution,
Paragraph 1 of Article 3, Paragraphs 2 and 5 of Article 4, and
Paragraph 1 of Article 6 of the European Charter of Local
Self-Government, as well as Item 4 of Paragraph 1 of Article 4
and Item 13 of Paragraph 1 of Article 6 of the Law on Local
Self-Government.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations of R.
Dovydėnienė, the Minister of Culture of the Republic of
Lithuania, A. Zuokas, Mayor of the Vilnius City Municipality,
Assoc. Prof. Dr. E. Šileikis who works at the Constitutional
and Administrative Law Department of the Faculty of Law of
Vilnius University, Dr. A. Gazarian, Director of the Centre of
Investigation of Self-Government Problems, and S. Šiupšinskas,
Director of the Lithuanian Association of Municipalities, were
received.
V
At the Constitutional Court hearing the representative of
the Seimas, the party concerned, who was M. Bagdonavičienė and
the representative of the Government, the party concerned, who
was S. Pučienė, virtually reiterated the arguments set forth in
their written explanations and submitted additional
explanations.
At the Constitutional Court hearing the witnesses, who
were V. Klimantavičius, the Director of Administration of the
Vilnius City Municipality, and J. Elzbergas, Director of Law
and Personnel Department of the Vilnius City Municipality, were
questioned.
The Constitutional Court
holds that:
I
1. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate as to whether the Law "On
the Procedure of Reorganisation and Liquidation of
Establishments of Culture" (wording of 13 June 1995) is not in
conflict with Paragraph 2 of Article 120 of the Constitution,
Paragraph 1 of Article 3, Paragraphs 2 and 5 of Article 4, and
Paragraph 1 of Article 6 of the European Charter of Local
Self-Government, as well as whether Item 2.4 of Government
Resolution No. 1320 "On the House of Signatories to the Act of
Independence of Lithuania and the House of Artists of
Lithuania" of 28 November 1997 is not in conflict with
Paragraph 2 of Article 120 of the Constitution, Paragraph 1 of
Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of
Article 6 of the European Charter of Local Self-Government, as
well as Item 4 of Paragraph 1 of Article 4 and Item 13 of
Paragraph 1 of Article 6 of the Law on Local Self-Government.
2. On 15 October 1985, the Council of Europe adopted the
European Charter of Local Self-Government; it became effective
on 1 September 1988. The Seimas ratified this charter by
Article 1 of the Republic of Lithuania Law "On Ratification of
the European Charter of Local Self-Government" that was adopted
on 25 May 1999.
In its decision of 25 April 2002, the Constitutional Court
held that pursuant to the Constitution the Constitutional Court
does not investigate the compliance of a law with a legal act
which has the power of the law, and it decided to refuse to
investigate the petition of the Vilnius Regional Administrative
Court wherein in requests to investigate whether the Law "On
the Procedure of Reorganisation and Liquidation of
Establishments of Culture" (wording of 13 June 1995) was not in
conflict with Paragraph 1 of Article 3, Paragraphs 2 and 5 of
Article 4, and Paragraph 1 of Article 6 of the European Charter
of Local Self-Government. By the aforementioned decision the
Constitutional Court decided to accept for investigation the
petition of the Vilnius Regional Administrative Court wherein
in requests to investigate whether the Law "On the Procedure of
Reorganisation and Liquidation of Establishments of Culture"
(wording of 13 June 1995) was not in conflict with Paragraph 2
of Article 120 of the Constitution, and whether Item 2.4 of
Government Resolution No. 1320 "On the House of Signatories to
the Act of Independence of Lithuania and the House of Artists
of Lithuania" of 28 November 1997 was not in conflict with
Paragraph 2 of Article 120 of the Constitution, Paragraph 1 of
Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of
Article 6 of the European Charter of Local Self-Government, as
well as Item 4 of Paragraph 1 of Article 4 and Item 13 of
Paragraph 1 of Article 6 of the Law on Local Self-Government.
3. The petitioner requests to investigate as to whether
the Law "On the Procedure of Reorganisation and Liquidation of
Establishments of Culture" (wording of 13 June 1995), which is
set forth as follows: "To establish that establishments of
culture that belong to the sphere of administration of
municipal councils may be reorganised or liquidated only upon
receipt of written consent by the Ministry of Culture of the
Republic of Lithuania" is not in Conflict with the
Constitution.
4. On 12 October 2004, the Seimas adopted the Republic of
Lithuania Law on Recognising the Law "On the Procedure of
Reorganisation and Liquidation of Establishments of Culture"
and the Law which Substituted the Latter as No Longer
Effective, by which it recognised the Republic of Lithuania Law
"On the Procedure of Reorganisation and Liquidation of
Establishments of Culture" (which was adopted on 28 October
1993) and the Republic of Lithuania Law "On Amending the
Republic of Lithuania Law 'On the Procedure of Reorganisation
and Liquidation of Establishments of Culture'" (which was
adopted on 13 June 1995) that became effective on 26 October
2004 as no longer effective.
Thus the disputed by the petitioner Law "On the Procedure
of Reorganisation and Liquidation of Establishments of Culture"
(wording of 13 June 1995) is not effective at the time of the
investigation of the constitutional justice case at issue.
5. According to Paragraph 4 of Article 69 of the Law on
the Constitutional Court, the annulment of the disputed legal
act shall be grounds to adopt a decision to dismiss the
initiated legal proceedings. In its rulings the Constitutional
Court has held more than once that according to the
Constitution in the cases where the Constitutional Court is
addressed by a court which investigates the case and which has
doubts concerning the compliance of the applicable in a
particular case law with the Constitution or laws, the
Constitutional Court has a duty to consider the petition of the
court irrespective of the fact whether the disputed law or
other legal act is in force or not.
6. The petitioner requests to investigate as to whether
Item 2.4 of Government Resolution No. 1320 "On the House of
Signatories to the Act of Independence of Lithuania and the
House of Artists of Lithuania" of 28 November 1997 is not in
conflict with the Constitution and laws.
It is established in this Government resolution:
"The Government of the Republic of Lithuania resolves:
1. To obligate the Ministry of Culture to transfer, by 1
January 1998, the functions of founder of the House of Artists
of Lithuania to the Vilnius City Municipality.
2. To assign to the Vilnius City Municipality the
following tasks:
2.1. by 1 January 1998, to transfer to the Ministry of
Culture the functions of founder of the House of Signatories to
the Act of Independence of Lithuania;
2.2. to transfer the building located at Pilies St. 26,
Vilnius, area of 1234,16 sq. m., of the House of Signatories to
the Act of Independence of Lithuania, which is possessed by the
Vilnius City Municipality under the right of trust, to the
Ministry of Culture for possession and use as state-owned
property under the right of trust after the repair and
restoration of this building are finished after the state
commission has adopted it for use;
2.3. by 1 January 1998, to take over from the House of
Artists of Lithuania the house located at Didžioji St. 31,
Vilnius for possession and use as state-owned property under
the right of trust;
2.4. when performing the functions of founder of the House
of Artists of Lithuania, not to change the purpose of the
House, nor the type of its activity and status, and to document
this in a trilateral agreement on cooperation between the
Vilnius City Board, the Ministry of Culture and the House of
Artists of Lithuania."
7. It should be noted that disputed Item 2.4 of Government
Resolution No. 1320 "On the House of Signatories to the Act of
Independence of Lithuania and the House of Artists of
Lithuania" of 28 November 1997 regulates the relations linked
to the House of Artists of Lithuania and it is inseparably
related to Items 1 and 2.3 of this Government resolution.
Therefore, the investigation of the compliance of Item 2.4 of
Government Resolution No. 1320 "On the House of Signatories to
the Act of Independence of Lithuania and the House of Artists
of Lithuania" of 28 November 1997 with the Constitution and
laws is inseparable from the investigation of the compliance of
Items 1 and 2.3 of this Government resolution with the
Constitution and laws.
II
1. The petitioner has doubts as to whether the Law "On the
Procedure of Reorganisation and Liquidation of Establishments
of Culture" (wording of 13 June 1995) is not in conflict with
Paragraph 2 of Article 120 of the Constitution wherein it is
established that municipalities shall act freely and
independently within their competence, which shall be
established by the Constitution and laws. Moreover, the
petitioner had doubts as to whether the provision "To assign to
the Vilnius City Municipality the following tasks: <...> 2.4.
when performing the functions of founder of the House of
Artists of Lithuania, not to change the purpose of the House,
nor the type of its activity and status, and to document this
in a trilateral agreement on cooperation between the Vilnius
City Board, the Ministry of Culture and the House of Artists of
Lithuania" of Item 2 of Government Resolution No. 1320 "On the
House of Signatories to the Act of Independence of Lithuania
and the House of Artists of Lithuania" of 28 November 1997 is
not in conflict with inter alia Paragraph 2 of Article 120 of
the Constitution.
2. The content of the indicated by the petitioner
provision of Paragraph 2 of Article 120 of the Constitution
that municipalities shall act freely and independently within
their competence, which shall be established by the
Constitution and laws, may not be construed separately from
other provisions of the Constitution, which consolidate the
constitutional concept of local self-government, inter alia
functioning of local self-government as a system of public
authority, as well as constitutional bases of relations between
local self-government and state administration. The majority of
these provisions are set forth in Chapter X "Local
Self-Government and Administration" of the Constitution
(Articles 119-124).
In its ruling of 24 December 2002, the Constitutional
Court held that under the Constitution certain functions are
vested exceptionally in the municipalities (respective
competence of municipalities is directly entrenched in the
Constitution); moreover, municipalities may be assigned also
with commission of certain functions of the state by the laws.
In this regard the concept "functions of municipality" is
resumptive; it comprises all functions performed by
municipalities according to the Constitution and laws,
including those that are performed by municipalities due to the
fact that pursuant to the Constitution these functions are
assigned exceptionally to them, and those the performance of
which must be guaranteed by the state, but which are performed,
under laws, through municipalities or with certain
participation of municipalities to (institutions or officials
of) which respective competence (empowerments) is assigned.
Thus, in the cases of constitutional justice, when deciding
whether the established by laws legal regulation by which the
performance of certain functions is transferred to
municipalities is not in conflict with Paragraph 2 of Article
120 of the Constitution, as well as whether the legal
regulation, established in laws and/or substatutory legal acts
of the Government, by which municipalities (their institutions
or officials) are assigned with certain competence
(empowerments) which is needed in order to perform the
functions transferred to municipalities is not in conflict with
Paragraph 2 of Article 120 of the Constitution, one must take
account of the norms of the Constitution and the principles of
the Constitution, which establish constitutional bases of legal
regulation of respective public relations, and interrelations
of these norms and principles with provisions of the
Constitution that entrench the constitutional concept of local
self-government. In the constitutional justice case at issue,
when deciding whether the Law "On the Procedure of
Reorganisation and Liquidation of Establishments of Culture"
(wording of 13 June 1995) and Items 1, 2.3 and 2.4 of
Government Resolution No. 1320 "On the House of Signatories to
the Act of Independence of Lithuania and the House of Artists
of Lithuania" of 28 November 1997 are not in conflict with
Paragraph 2 of Article 120 of the Constitution, one should take
account of the provisions of Article 42 of the Constitution
which consolidate inter alia freedom of culture as well as
constitutional bases of state support to culture and protection
of cultural monuments and valuables, the provisions of Articles
23, 47 and 128 of the Constitution which consolidate the
constitutional bases of relations of ownership in the Republic
of Lithuania, as well as interrelations of respective
provisions of Articles 23, 42, 47 ad 128 of the Constitution
with the indicated by the petitioner provision of Paragraph 2
of Article 120 of the Constitution that municipalities shall
act freely and independently within their competence, which
shall be established by the Constitution and laws, as well as
other provisions of the Constitution that consolidate the
constitutional concept of local self-government.
3. The Constitutional Court, when construing Paragraph 2
of Article 120 of the Constitution in the context of other
provisions of the Constitution (inter alia those that
consolidate the constitutional concept of local
self-government), has held in its rulings that governance of
the state and local self-government are two systems of public
power which are established in the Constitution. They are not
identical. In the Constitution local self-government is
consolidated as a local system of public administration, which
acts on the basis of self-activity and is not under direct
jurisdiction of institutions of state power:
self-administration and self-activity of territorial
communities of established in laws administrative units, as per
competence which is defined in the Constitution and laws. Local
self-government is power of territorial communities of
administrative units, which is formed and which functions on
the constitutional bases other than those of state power. Each
above-mentioned system of public power performs functions that
are characteristic of the particular system only. On the other
hand, a self-governing territorial community constitutes a part
of the whole community of the state-the civil Nation-therefore
the public interest of municipalities-territorial
communities-may not be confronted with the public interest of
the community of the entire state, which must be ensured by
state institutions within their competence as well. An
interrelation exists between administration of the state and
local self-government, which manifests itself inter alia in the
fact that centralised governance of the state in territorial
administrative units is combined with de-centralisation, in the
fact that one consolidates in laws the cooperation of
institutions of central power and municipalities, in the fact
that the state supports municipalities in various ways and
forms, as well as the fact that the state, upon the forms
established by laws, supervises the activity of municipalities
and coordinates joint actions of the state and municipalities,
when important social objectives are being sought
(Constitutional Court rulings of 18 February 1998, 13 June
2000, 28 June 2001, 14 January 2002, 24 December 2002, 30 May
2003, and 13 December 2004).
In its rulings the Constitutional Court has held also more
than once that the provision of Paragraph 2 of Article 120 of
the Constitution that municipalities shall act freely and
independently within their competence, which shall be
established by the Constitution and laws, is the guarantee of
participation of local communities in administration of
respective territories.
4. It was mentioned that pursuant to the Constitution
certain functions are vested exceptionally in municipalities,
moreover, one may transfer, by laws, certain functions of the
state to be performed by municipalities as well. It should be
noted that the possibility which originates from the
Constitution to transfer by laws certain functions of the state
to be performed by municipalities means also that the
aforementioned functions may be assigned by laws to be
performed by municipalities on the full-scale or only to a
certain extent. In the latter case one must especially stress
the requirement of clarity of legal regulation which originates
from the Constitution: legal regulation which is established by
laws must be such where it is clear to what extent do
municipalities perform a particular function, and to what
extent the performance of this function is left to the state.
In the context of the constitutional justice case at issue
it should be held that the performance of certain functions of
the state, speaking objectively, may not, to a certain extent,
be not transferred to municipalities, as, without doing so, one
could not guarantee an effective performance of such functions.
It should be stressed that according to the Constitution
functions of municipalities may be established only by law; it
may not be done by a substatutory legal act.
In the area of legal regulation of relation of local
self-government, the legislator enjoys broad discretion. This
discretion comprises not only the right of the legislator to
establish by a law which functions (full-scope or a certain
extent of them) are transferred to municipalities, but to
differentiate these functions inter alia according to the
freedom of decision-making and, on this basis, to set the types
of functions that are transferred to municipalities as well.
The level of self-dependence of municipalities when performing
various functions that are established by laws may differ: when
performing some functions municipalities may enjoy more
self-dependence, meanwhile when performing other functions, the
freedom of activity of municipalities is restricted by
respective decisions of the state institutions and/or officials
(Constitutional Court ruling of 24 December 2002).
It should be stressed also that when establishing the
functions of municipalities and their types, the legislator
must pay heed to the self-dependence of municipalities and
freedom of their activity within the competence established by
the Constitution and laws, the principles of co-ordination of
interests of municipalities and the state, as well as the
constitutional concept of local self-government.
In this context one should note that, as already held by
the Constitutional Court in its rulings of 24 December 2002 and
13 December 2004, the constitutional provision that
municipalities act freely and independently within their
competence, which shall be established by the Constitution and
laws means also that in case certain functions are assigned to
municipalities by the Constitution or laws, so the
municipalities perform them (both the ones, that are performed
by them due to the fact that these functions, pursuant to the
Constitution, are assigned exceptionally to municipalities, and
the ones the performance of which, according to the
Constitution, must be guaranteed by the state, but which are
performed, in order to guarantee inter alia a more efficient
interaction between state power and citizens, as well as
democracy of administration, all of them or some of them to a
certain extent are transferred by laws to be performed by
municipalities), to the extent that they are assigned to the
latter. However, none of these functions means absolute
independence of municipalities in respective area; they are all
regulated by laws.
5. The Constitutional Court has held that one may not
assign any functions to institutions of self-government, which
they are not able to perform (Constitutional Court ruling of 14
January 2002), and that in case the functions of the state are
transferred by laws to municipalities, as well as in case laws
and other legal acts create duties of municipalities, funds
needed for performance of these functions (fulfilment of
duties) must be allocated as well (Constitutional Court ruling
of 24 December 2002). It was held in the Constitutional Court
rulings of 14 January 2002, 24 December 2002, and 13 December
2003 that according to the Constitution municipalities must
execute laws, including the laws by which municipalities are
obligated to perform functions of the state that are assigned
to them, and that funds, which are needed in order to ensure
full-fledged functioning of self-government and performance of
municipal functions, must be provided for in the state budget.
It is to be held that from the Constitution (inter alia the
provision of Paragraph 1 of Article 120 of the Constitution
that the State shall support municipalities) stems a duty of
the legislator to establish by laws such legal regulation,
where, having taken account of resources of the state and
society, material and financial capabilities, as well as other
important factors, funding for municipal functions might be
guaranteed. On the other hand, the constitutional duty of the
legislator to establish such legal regulation where, having
taken account of resources of the state and society, material
and financial capabilities, as well as other important factors,
funding for municipal functions might be guaranteed, does not
deny the duty of municipalities (their institutions or
officials) to adopt decisions, within the competence
established by the Constitution and laws, to collect funds
needed for performing their functions and to use these funds in
a due way; the aforesaid constitutional duty of the legislator
does not deny the responsibility of municipalities (their
institutions or officials) for the proper performance of the
functions transferred to them. In this context it should be
noted that according to the Constitution municipalities draft
and confirm their budget (Paragraph 1 of Article 121 of the
Constitution), that municipal budgets are independent
(Paragraph 1 of Article 127), as well as that municipal
councils have the right to establish local levies within the
limits and in accordance with the procedure provided for by
law, moreover, municipal councils may provide for preferences
with respect to taxes and levies at the expense of their own
budget (Paragraph 2 of Article 121 of the Constitution).
It is to be noted that according to the Constitution no
legal regulation, where, having established by laws certain
functions of municipalities, municipal institutions and/or
officials through which these functions are to be performed
have no respective competence (empowerments), may exist.
Otherwise, one would have to hold that the functions which were
transferred to municipalities by laws are the ones which
municipalities are not able to perform.
6. The public interest which is to be guaranteed by local
self-government as well, as one of the systems of public power
provided for in the Constitution, as well as particular tasks
that are faced within particular period by the whole society,
the state and territorial communities, are dynamic and they are
subject to change. Therefore, the legislator may, and in
certain cases he even must, change by laws (expand, narrow or
correct it otherwise) the scope and content of functions that
are transferred to municipalities, transfer new functions,
which previously were not performed, to be performed by
municipalities and/or establish that municipalities cease to
perform certain functions, which were performed earlier; the
legislator may, and in certain cases even must, also
respectively correct the competence (empowerments) of
municipalities (their institutions or officials), which is
needed in order to perform the functions transferred to
municipalities. When doing so the legislator must pay heed to
the norms and principles of the Constitution, inter alia the
imperative which originates from the Constitution to establish
by laws such legal regulation, where, having taken into account
the resources of the state and society, material and financial
capabilities, and other important factors, the funding for the
municipal functions is ensured; moreover, in case the scope of
functions transferred to municipalities is being changed
(expanded, narrowed or corrected otherwise), the legislator
may, and in certain cases even must, respectively correct
(increase or reduce) the funding for municipal functions. It
should be noted in this context that, as already held in the
Constitutional Court rulings of 14 January 2002, 24 December
2002, and 13 December 2004, in case additional functions of the
state are transferred (other duties are assigned) to
municipalities prior to the end of the budgetary year, the
funds must be allocated for implementation of the latter as
well.
One should especially stress that pursuant to the
Constitution it is only by laws how one may change (expand,
narrow or correct otherwise) the scope and content of functions
transferred to municipalities, transfer new functions, which
were previously not performed, to be performed by
municipalities and/or establish that municipalities cease to
perform certain functions, which were performed earlier; this
may not be done by a sub-statutory legal act.
7. Municipalities perform all their functions (including
those that are performed, as according to the Constitution they
are vested solely in municipalities, and those the performance
of which must be guaranteed by the state, however, in order to
ensure inter alia a more efficient interaction between state
power and citizens, a well as democracy of governance, they all
or to a certain extent are transferred by laws to be performed
by municipalities) and implement their competence
(empowerments) through institutions of
self-government-municipal councils-the members of which have
the mandate of territorial community, as well as through
executive bodies that are established by and accountable to
municipal councils and other institutions accountable to
municipal councils (municipal establishments or enterprises).
In its rulings of 24 December 2002, 17 March 2003, and 13
December 2004, the Constitutional Court held that municipal
institutions are established in order to implement the
interests of municipality, and to directly implement laws,
resolutions of the Government and decisions of the municipal
council; thus, pursuant to the Constitution, municipal
councils, executive bodies that are accountable to them, and
other institutions established by municipal councils are to be
considered municipal institutions as well. The concept
"municipal institutions" expresses the subordination of
respective institutions to respective municipality.
In this context one should mention that the Constitution
directly consolidates the bases and procedure of forming
(electing) self-government institutions, the municipal councils
(Paragraph 2 of Article 119 of the Constitution); moreover, the
Constitution expressis verbis requires that municipal councils
establish executive bodies accountable to them (Paragraph 4 of
Article 119 of the Constitution). In its ruling of 13 December
2004, the Constitutional Court held that in the established
cases municipal councils (representative institutions) and
executive bodies accountable to them (executive institutions)
are granted authoritative empowerments, and that such municipal
institutions are institutions of municipal power and public
administration.
It should be stressed that municipal councils, i.e.
institutions through which the right of self-government of
territorial communities is implemented, according to the
Constitution have the right to establish various institutions
accountable to them-municipal establishments, enterprises-that
are needed in order to perform functions transferred to
municipalities, and in cases provided for by laws they must
establish such institutions (municipal establishments or
enterprises). Paragraph 2 of Article 120 of the Constitution,
wherein it is established that municipalities act freely and
independently within their competence, which shall be
established by the Constitution and laws, and Paragraph 3 of
Article 119 of the Constitution, wherein it is established
inter alia that the procedure of activity of self-government
institutions is established by law, imply also that the
legislator has the duty to set by laws the procedure of
establishment of municipal establishments or enterprises, and
municipal councils must establish municipal establishments or
enterprises according to the requirements set in laws.
In the context of the case at issue one should note that
the legislator, while paying heed to the Constitution, may
establish by law certain conditions and/or procedures, which
must be followed by municipalities when implementing their
rights of the founder of the establishments or enterprises
founded by them, and one may establish also by law other
limitations which to a certain extent restrict the rights of
municipalities as founders of respective establishments or
enterprises.
In its decision of 11 February 2004, the Constitutional
Court held: if the laws provide that certain relations
connected with the procedure (procedures) of implementation of
requirements of laws, thus also the requirements of the laws
whereby municipal functions are established, are regulated by
the Government, then the Government must do so; such legal
regulation established by the Government is obligatory to
municipal institutions as well; if it is established in the
laws that certain relations connected with the procedure
(procedures) of the implementation of laws, thus also the laws
establishing municipal functions, are regulated by an
institution empowered by the Government (for example, a
ministry), then the Government has a duty to establish, by
means of a resolution, which state institutions have to do so,
while the latter institution (its head) must issue a respective
legal act; such legal regulation established by the institution
(its head) empowered by the Government is obligatory to
municipal institutions as well; if it is established in the
laws that certain relations connected with the procedure
(procedures) of the implementation of laws, thus also the laws
establishing municipal functions, are regulated by a ministry
(minister) or another state institution (its head), then this
ministry (minister) or another state institution (its head)
must issue a corresponding legal act, and the legal regulation
established by this ministry (minister) or other state
institution (its head) is obligatory to municipal institutions
as well; however, these Government resolutions, substatutory
legal acts issued by ministries (ministers) or other state
institutions (their heads) cannot change or distort the legal
regulation established in laws, these substatutory legal acts
cannot establish any such legal regulation which would compete
with that established in laws.
One should note in this context that according to Article
122 of the Constitution municipal councils may apply to court
regarding violation of their rights.
The right of municipal councils which originates from the
Constitution and laws, to establish various
institutions-municipal establishments that are needed in order
to perform the functions transferred to
municipalities-accountable to them implies also their right to
liquidate, reorganize or upon the established procedure in any
other way restructure the aforementioned institutions
irrespective of the way how the liquidation, reorganisation or
restructuring in any other way of municipal establishments or
enterprises is called in laws or substatutory legal acts,
including decisions of respective municipal councils.
The above-mentioned requirements that originate from the
Constitution, inter alia the duty of the legislator to set
forth by law the procedure of establishment of municipal
establishments or enterprises and the duty of municipal
councils to establish municipal establishments or enterprises
while following requirements that are set forth in laws, as
well as the duty of municipal councils to follow requirements
of the Government resolutions, substatutory legal acts of
ministries (ministers) or other state institutions (their
heads), are applicable also mutatis mutandis to municipal
councils' decisions, by which municipal establishments or
enterprises are being liquidated, reorganised or restructured
in any other way, irrespective of the way how the liquidation,
reorganisation or restructuring in any other way of municipal
establishments or enterprises is called in laws or substatutory
legal acts, including decisions of respective municipal
councils.
It should be noted that the Constitution (in particular,
having taken into account the fact that the principle of
co-ordination of the interests of municipalities and the state
is consolidated therein) does not prevent municipalities from
holding the right of the founder of certain institutions
(establishments or enterprises) through which the transferred
to municipalities functions of the state are performed, if it
is permitted by laws, together with other entities, inter alia
state institutions.
8. In its ruling of 24 December 2002, the Constitutional
Court held that the executive bodies accountable to municipal
councils have no right to adopt decisions which are not based
on decisions of municipal councils, as well as decisions which
are equal in their legal power to decisions of municipal
councils. When construing this statement of the ruling of 24
December 2002, the Constitutional Court in its decision of 11
February 2004 inter alia held that the legislator, who has
established by law that municipalities may establish their
establishments or enterprises, may not set such legal
regulation where decisions concerning the establishment of such
establishments or enterprises are adopted by executive bodies
accountable to municipal councils instead of the latter.
This provision is mutatis mutandis applicable also to
decisions of municipal councils by which municipal
establishments or enterprises are being liquidated, reorganised
or restructured in any other way upon the established procedure
irrespective of the way how the liquidation, reorganisation or
restructuring in any other way of municipal establishments or
enterprises is called in laws or substatutory legal acts,
including decisions of respective municipal councils.
9. In its ruling of 13 December 2004 the Constitutional
Court held: the system of state institutions comprises various
state institutions; the variety of state institutions, their
legal status and powers are determined by a variety of
functions exercised by the state, particularities of managing
the general affairs of the society, organisational and
financial capabilities of the state, the content and expediency
of the policy implemented during a concrete period of life of
the society and development of the state, international
obligations of the state, as well as other factors; certain
state institutions are expressis verbis indicated in the
Constitution; the Seimas, the President of the Republic, the
Government, and courts are the institutions executing state
power; in the Constitution one has indicated also certain state
institutions which are assigned, pursuant to the Constitution,
neither to legislative, executive, nor judicial power; in the
Constitution, the term "institution" comprises not only state
institutions-it bears a broader sense as well, because in
certain cases non-state institutions are called the same too.
In the Constitutional Court ruling of 13 December 2004 it
is held also that according to the Constitution it is the
Seimas and according to laws it is also the Government who
enjoy powers to establish state institutions other than those
expressis verbis indicated in the Constitution, a need to
establish which originates from the necessity to implement
state governance, to administer affairs of the state, to ensure
the performance of various state functions, that, while paying
heed to the Constitution, law may also establish such legal
regulation where certain state institutions may be established
under the institution of the President of the Republic, the
Head of State, as well as that law may also establish the legal
regulation where certain state institutions that ensure
independent administration of courts are founded under judicial
power.
It should be held that various state institutions
(including establishments and enterprises) may or, in certain
cases even must, be established, within their competence and
pursuant to the requirements of laws, also by the state
institutions which are assigned by the Constitution neither to
legislative, executive, nor judicial power.
In addition, it should be held that various state
institutions (including establishments and enterprises) within
their competence and in line with requirements of laws may, and
in some cases even must, be also established by the state
institutions which are not specified in the Constitution and
which themselves were established according to the law by other
state institutions as well.
In this context one has to emphasize that the concept used
in the Constitution "state institution" is a constitutional
concept, it has a constitutional content and may not be
construed on the grounds of the sole fact that an analogous
concept is defined in laws or other legal acts; according to
the Constitution all institutions (including establishments and
enterprises) through which the state exercises its functions
and the rights of the founder of which are owned by the state
(its institutions), irrespective of the way how certain
institutions are called in laws and/or substatutory legal acts,
are to be considered state institutions. In this regard the
notion "state institutions" is resumptive. In its ruling of 13
December 2004, the Constitutional Court held that the notion
"state institutions" which is used in the Constitution is of
general type, it comprises various state institutions through
which the state exercises its functions, that the state
institutions comprise a system, and that this system of state
institutions is consolidated in legal acts of diverse legal
power: some state institutions are expressis verbis specified
in the Constitution, others, according to the Constitution, are
to be specified by the law, still others are established on the
grounds of a need to implement state governance, to administer
affairs of the state, to ensure the performance of various
state functions-the state institutions must be organised in
order to perform such functions although their establishment is
not explicitly provided for in the Constitution.
The indicated provisions concerning the establishment,
based on laws, of the state institutions (including
establishments and enterprises), through which the state
exercises its functions, is mutatis mutandis applicable also to
the liquidation, reorganisation or restructuring in any other
way under established procedure, irrespective of the way how
such liquidation, reorganisation or restructuring in any other
way of the state institutions is called in laws or substatutory
legal acts, of state institutions (including establishments and
enterprises), through which the state exercises its functions.
One must note that the Constitution does not prevent the
state institutions from holding the rights of the founder of
certain establishments or enterprises together with other
entities, inter alia municipalities, if this is permitted by
law. Thus, the Constitution does not prevent state institutions
from founding, within their competence and in line with the
requirements of laws, certain establishments or enterprises
together with other entities, inter alia municipalities.
10. It has been held in this Constitutional Court ruling
that due to the fact the public interest, which must be
guaranteed by local self-government as well, and specific tasks
that are faced within particular period by the whole society,
the state and territorial communities, are dynamic and subject
to change, the legislator may and in certain cases even must
change by law (expand, narrow or correct otherwise) the scope
and content of functions that are transferred to municipality,
transfer new functions, which were previously not performed, to
be performed by municipalities and/or establish that
municipalities cease to perform certain functions, which were
performed earlier, moreover, that the legislator may, and in
certain cases even must, also respectively correct the
competence (empowerments) of municipalities (their institutions
or officials), which is needed in order to perform the
functions transferred to municipalities.
Establishment of the public interest, which has to be
guaranteed by local self-government as well, and change by laws
of the scope and content of functions that are transferred to
municipality, transfer of new functions, which were previously
not performed, to be performed by municipalities and/or
establishment that municipalities cease to perform certain
functions, which were performed earlier, caused by dynamics of
specific tasks that are faced by the whole society, the state
and territorial communities, may be related to the assignment
of certain establishments or enterprises to municipalities,
inter alia transfer of the rights of the founder of these
establishments or enterprises, which were previously held by
certain state institutions, to municipalities. It should be
especially noted that the aforementioned assignment of state
establishments or enterprises to municipalities and transfer of
rights of their founder to municipalities imply also that
municipalities may also take over new duties related to funding
of respective establishments or enterprises or their support in
another form, as well as control, supervision etc. of the
above-mentioned establishments or enterprises. Thus, the state
establishments or enterprises must be assigned to
municipalities, while the rights of the founder must be
transferred to municipalities without violating the
constitutional concept of local self-government, the entrenched
in the Constitution independence of municipalities and freedom
of their activity within the competence established by the
Constitution and laws, the principles of co-ordination of
interests of municipalities and the state, and paying heed to
the interests of municipality; the requirements, which
municipalities are not able to implement, may not be
established upon them; funding of respective municipal
functions must be respectively corrected, if needed. All this
implies that in order to enable respective municipalities to be
ready for proper performance of functions transferred to them,
inter alia sufficient exercising of the transferred to them
rights of the founders of the establishments or enterprises and
fulfilment of duties related thereto, they must be informed
about the anticipated assignment of certain state
establishments or enterprises (inter alia transfer of rights of
the founders of these establishments or enterprises) to these
municipalities.
It has been mentioned that the Constitution does not
prevent municipalities from holding the rights of the founder
of certain institutions (establishments or enterprises) through
which the transferred to municipalities functions of the state
are performed, if it is permitted by laws, together with other
entities, inter alia state institutions. Thus, according to the
Constitution, it is not impossible to establish by law such
legal regulation, where, in case the rights of the founder of
certain institutions (establishments or enterprises), through
which state functions assigned to municipalities are exercised,
are transferred not only to certain municipalities, but also to
other entities (inter alia state institutions), or, in case the
rights of the founder of certain institutions (establishments
or enterprises), through which state functions assigned to
municipalities are exercised, are transferred to certain
municipalities, but these rights are still held by the state
institutions that used to hold such rights previously,
municipalities would become and continue being the founders of
institutions (establishments or enterprises through which
functions of the state are exercised), which used previously to
belong to certain state institutions, together with the state
institutions.
11. It should be stressed that assignment of certain
institutions (establishments or enterprises) to municipalities,
inter alia transfer of the rights of the founder of these
establishments or enterprises, which were previously held by
certain state institutions, in itself does not mean that
respective functions of the state are assigned to
municipalities alongside. quite to the contrary: the assignment
of certain institutions (establishments or enterprises) to
municipalities, inter alia transfer of the rights of the
founder of these establishments or enterprises, which were
previously held by state institutions, to municipalities, must
be based, pursuant to the Constitution, on the fact that
respective functions of the state (all or some of them to a
certain extent) are transferred by law to be performed to
municipalities.
12. It has been held in this Constitutional Court ruling
that the legislator, while paying heed to the Constitution, may
establish by law certain conditions and/or procedures, which
must be followed by municipalities when exercising their rights
of the founders of the establishments or enterprises, which
have been established by them; one may establish by law other
limitations, restricting to a certain extent the rights of
municipalities as founders of respective establishments or
enterprises, as well.
Thus, in the context of the case at issue it should be
noted that the transfer of rights of the founder of
establishments or enterprises, which were held previously by
certain state institutions, does not mean that one may not
establish by law certain conditions and/or procedures, which
must be followed by municipalities when exercising the rights
of the founder of the above-mentioned establishments or
enterprises transferred to them, moreover, this does not mean
that one may not establish by law other limitations that
restrict to a certain extent the rights of municipalities as
the founders of the establishments or enterprises that are
newly assigned to them. When establishing the above-mentioned
conditions, procedures or other restrictions, one must not
violate the interests of municipalities and pay heed to the
entrenched in the Constitution independence and freedom of
activity of municipalities within the competence established by
the Constitution and laws, as well as the principles of
co-ordination of interests of municipalities and the state,
which are defined in the Constitution and laws.
13. The constitutional requirements of legal clarity and
legal certainty are applied to the legal acts by which certain
state establishments or enterprises, inter alia the rights of
the founder of these institutions (establishments or
enterprises), through which functions of the state are
performed: the legal regulation must be such so that it is
clear whether the rights of municipalities, as of the assignee
of the rights of the founder of a respective institution
(establishment or enterprise), through which functions of the
state are performed, are restricted in any way, and whether no
such restrictions have been established, moreover, it should
not establish any uncertainty whether respective institutions
(establishments or enterprises), through which functions of the
state are performed, are financed or supported in any other way
by the municipality, or the state (its institutions), or
whether the burden of financing is divided in any way between
the municipality and the state (its institutions), whether the
powers of control or supervision of these institutions
(establishments or enterprises), through which functions of the
state are performed, belong to municipality (its institutions
or officials), or the state (its institutions or officials), or
both the municipality (its institutions or officials) and the
state (its institutions or officials), etc.
14. It should be emphasised that assignment of any state
institution or enterprise to a municipality, inter alia
transfer of the rights of the founder of this institution
(establishment or enterprise), through which functions of the
state are performed, to the municipality must be based on the
law. The requirement that relations of such type are to be
regulated by means of a law originates from the
Constitution-from the principle entrenched in the Constitution
that administration of the state and local self-government are
two non-identical systems of public power, from the
constitutional imperative that municipal functions may be
established by law only, from the principle of co-ordination of
interests of municipalities and the state, as well as other
provisions of the Constitution. The established by such law
legal regulation, which is followed by the state institution
enjoying the powers to issue legal acts, according to which a
certain state institution (establishment or enterprise),
through which functions of the state are performed, is assigned
to the municipality, inter alia the rights of the founder of
this institution (establishment or enterprise), through which
functions of the state are performed, are transferred, may be
general (lex generalis) or special (lex specialis).
Thus, when deciding (inter alia in the cases of
constitutional justice) as to whether a legal act (inter alia a
Government resolution), by which certain state institution
(establishment or enterprise), through which functions of the
state are performed, is assigned to a municipality, inter alia
the rights of the founder of this institution (establishment or
enterprise), through which functions of the state are
performed, are transferred to the municipality, is not in
conflict with the Constitution, one must find out, whether the
aforementioned assignment of the state institution
(establishment or enterprise), through which functions of the
state are performed, to municipality, inter alia transfer of
the rights of the founder of this institution (establishment or
enterprise), through which functions of the state are
performed, to the municipality, is based on the law (lex
generalis or lex specialis), i.e. one must find out, first of
all, whether the state institution that issued the respective
legal act enjoyed the competence as per laws to adopt the
decision to assign the said institution (establishment or
enterprise), through which functions of the state are
performed, to the municipality, inter alia to transfer the
rights of the founder of this institution (establishment or
enterprise), through which functions of the state are
performed, to the municipality, and, secondly, whether the
above-mentioned decision to assign the state institution
(establishment or enterprise), through which functions of the
state are performed, to the municipality, inter alia transfer
of the rights of the founder of this institutions
(establishment or enterprise), through which functions of the
state are performed, to the municipality, was adopted without
violating the procedure established by laws.
In this context one should note that prior to 2 November
1992, when the Constitution of the Republic of Lithuania became
effective, the national legal system was developed on the basis
of the Provisional Basic Law, moreover, lots of legal acts
issued prior to the restoration of the independent State of
Lithuania were effective. When the Constitution became
effective, the national legal system, as well as legal acts
aimed at regulation of relations of local self-government,
could be developed only on the basis of the Constitution. One
of the features of creation of the national legal system,
developed on the basis of the Constitution, was the transition
to such model of interaction of public power and society, in
which, while implementing the entrenched in the Constitution
and declared in the Preamble thereof the striving of the Nation
for an open, just, and harmonious civil society and State under
the rule of law, one encourages the true self-government of a
civil society (thus of territorial communities as well). Under
such circumstances the fact that municipalities-territorial
communities could be supported by the state, especially if one
takes into account the imperative of Paragraph 1 of Article 120
of the Constitution that the state provides support to
municipalities, was an immediate public interest.
However, as it was held in the Constitutional Court
rulings of 29 October 2003 and 5 March 2004, creation and
development of the national legal system is a gradual process.
After the Constitution became effective, a legal situation,
where most of the laws, which had to be issued according to the
Constitution and on which, pursuant to the Constitution, one
had to base all the decisions of state institutions (inter alia
the Government) and officials concerning the administration of
certain areas of life of the state and society, had not been
issued yet, was in place for a certain period. One must pay
heed also to this fact in the cases of constitutional justice,
in which one has to decide whether the Government resolutions
adopted within the aforementioned period, immediately after the
date of coming into effect of the Constitution, are not in
conflict with the Constitution.
The Government inter alia executes laws (Item 2 of Article
94 of the Constitution), administers the affairs of the country
(Item 1 of Article 94 of the Constitution). When, after the
coming into effect of the Constitution, there appeared a legal
situation where most of the laws establishing the powers of the
Government to decide by its resolutions the affairs of
administration of the country had not been issued yet, the
Government used to adopt resolutions which where not directly
based on laws that established respective powers of the
Government. When deciding, in cases of constitutional justice,
whether such Government resolutions were not in conflict with
the Constitution, one should also take account of the fact
whether respective decisions were not determined by a necessity
to immediately implement certain provisions of the
Constitution, despite the fact that their implementation, thus
the powers of the Government in particular areas as well, had
not been regulated by laws yet.
Alongside, it should be noted that immediately after the
Constitution became effective, there appeared legal situation
originated where most of the laws, which had to be issued
according to the Constitution and which had to be the basis,
pursuant to the Constitution, for all Government resolutions
related to administration of certain areas of life of the state
and society, had not been issued yet, in itself does not
justify any legal act issued by the Government during the
above-mentioned period, if it is not based on laws. In order
not to recognise a Government resolution which is not based on
laws (neither lex generalis, nor lex specialis) as being in
conflict with the Constitution, a respective Government
resolution had to be caused by the necessity to immediately
implement certain provisions of the Constitution, the
non-implementation of which would have resulted in a
fundamental harm to certain values, entrenched in, as well as
protected and defended by the Constitution. Besides, the
aforementioned legal situation, which originated immediately
after the coming into effect of the Constitution, should be
considered as a notably short-term situation, i.e. the one of
unavoidable transitional period; other construction of this
situation would be absolutely inconsistent with the
Constitution, inter alia the principle of supremacy of the
Constitution. It should be especially noted that the
aforementioned transitional period, when the said specific
legal situation was in place, is long over.
Thus, when deciding in cases of constitutional justice,
whether a Government resolution, by which a certain state
establishment or enterprise is assigned to a municipality
(inter alia the rights of the founder of this establishment or
enterprise are transferred), is not in conflict with the
Constitution, one must find out not only whether the
above-mentioned assignment of the state establishment or
enterprise to the municipality (inter alia the transfer of the
rights of the founder of this establishment or enterprise) is
based on the law, but also whether such Government resolution
was adopted during the aforementioned transitional period
(right after the entry into effect of the Constitution) and
whether the respective Government resolution was based on the
necessity to implement certain provisions of the Constitution,
without implementation of which one would have inflicted harm
on certain values, entrenched in and protected and defended by
the Constitution (including the provisions, consolidating the
constitutional concept of local self-government, inter alia
constitutional bases of functioning of local self-government,
as well as relations of local self-government and state
administration).
15. As mentioned, when deciding, in the constitutional
justice case at issue, whether the Law "On the Procedure of
Reorganisation and Liquidation of Establishments of Culture"
(wording of 13 June 1995) and Items 1, 2.3 and 2.4 of
Government Resolution No. 1320 "On the House of Signatories to
the Act of Independence of Lithuania and the House of Artists
of Lithuania" of 28 November 1997 are not in conflict with
Paragraph 2 of Article 120 of the Constitution, one should take
into account the provisions of Article 42 of the Constitution,
which entrench inter alia freedom of culture, as well as the
constitutional bases of state support to culture and protection
of cultural monuments and other culturally valuable objects,
and the relation of these provisions with the indicated by the
petitioner provision of Paragraph 2 of Article 120 of the
Constitution that municipalities act freely and independently
within their competence, which is established by the
Constitution and laws, as well as other provisions of the
Constitution that consolidate the constitutional concept of
local self-government.
In this context one should discuss the following
provisions of Article 42 of the Constitution: culture, science
and research, and teaching shall be free (Paragraph 1); the
State shall support culture and science and shall protect
Lithuanian historical, art, and cultural monuments and other
culturally valuable objects (Paragraph 2). Thus, in Paragraph 1
of Article 42 of the Constitution the principle of freedom of
culture is expressis verbis entrenched, and in Paragraph 2 the
constitutional duty of the state to support culture, as well as
to protect cultural monuments and other culturally valuable
objects is consolidated.
16. The notion of culture is used in the Constitution not
only in the indicated provisions of Article 42 of the
Constitution, but also in other articles (paragraphs) thereof.
The constitutional concept of culture is especially broad. It
comprises various values held and fostered by the Nation and
separate communities, the models and norms of behaviour that
have originated in the society (including law, customs and
traditions), historical experience, spoken and written
language, institutions, world-view and convictions, etc. On the
other hand, in the constitutional concept of culture (inter
alia in Article 42) one stresses the purposeful both material
and spiritual creative activity of people and its results-art,
science, education, architecture, technology, etc. Cultural
values are transferred to the future generations, they are the
foundation of survival and continuity of the Nation and the
state, thus they are protected and defended by the
Constitution. Culture is a national value of universal
importance. The Constitution obligates the state to ensure the
freedom of culture, to support culture, to protect cultural
monuments and other culturally valuable objects. The ensuring
of the freedom of culture, state support to culture, protection
of cultural monuments and other culturally valuable objects is
a public interest and important function of the state-a
function of state support and protection of culture.
In this context one should especially stress the
importance of provisions that are set forth in the Preamble to
the Constitution: it is entrenched therein that the Lithuanian
Nation, having created the State of Lithuania many centuries
ago, having based its legal foundations on the Lithuanian
Statutes and the Constitutions of the Republic of Lithuania,
having for centuries persistently defended its freedom and
independence, having preserved its spirit, native language,
writing, and customs, embodying the innate right of the human
being and the Nation to live and create freely in the land of
their fathers and forefathers-in the independent State of
Lithuania, fostering national concord in the land of Lithuania,
striving for an open, just, and harmonious civil society and
state under the rule of law, by the will of the citizens of the
reborn State of Lithuania, adopts and proclaims this
Constitution. Thus, the Lithuanian Nation has obligated the
state created by it to foster the cultural values that are
entrenched in the Preamble to the Constitution, and not to give
them up under any circumstances. All other provisions of the
Constitution, including the ones that are set forth in Article
42, must be construed so that one does not deviate from the
imperatives originating from the Preamble to the Constitution.
17. The entrenched in Paragraph 1of Article 42 of the
Constitution freedom of culture is to be construed by taking
account of the fact that, as already mentioned, the
constitutional concept of culture defines a purposeful material
and spiritual creative activity of people and its results. In
this regard the concept of freedom of culture comprises also
the freedom of science and research, as well as freedom of
teaching, which are mentioned in Paragraph 1 of Article 42 of
the Constitution as well. It should be noted alongside that
cultural activity is not limited to scientific work, research
and teaching, thus the concept of freedom of culture is not
limited to the freedom of scientific work, research and
teaching; it is much wider.
18. The Constitution distinguishes two aspects of the
freedom of culture as an innate freedom of a human being. The
entrenched in the Constitution freedom of culture comprises:
(1) freedom of creative activity, which, in its turn, comprises
the right of every person to freely create material and
spiritual cultural values (freedom of the process of creation)
and the right to spread or distribute in any other way the
created material and spiritual cultural values (freedom of
spreading products of creative activity); (2) freedom of
accessibility to cultural values, i.e. freedom of every person
to use created cultural valuables.
19. In its ruling of 1 July 2004, the Constitutional Court
held: "According to the Constitution creative activities are
activities in the area of science, technology, culture or art,
aimed at creating a certain result, i.e. qualitatively new,
original and specific material or spiritual values of science,
technology, culture or art, which have never existed before.
Creative activities may be continuous, professional, and of
one-time type (episodic)." Creation of material and spiritual
values is impossible without freedom of creative activity.
The imperative of freedom of creative activity is
consolidated not only in Article 42 of the Constitution (inter
alia Paragraph 1 thereof), other articles of the Constitution
(their parts) that entrench human rights and freedoms, but in
the provision of the Preamble to the Constitution, which
consolidates the innate right of a person and the Nation to
create freely in the independent State of Lithuania. Creation
of material and spiritual values is realisation of creative
potential and abilities of a human being. Thus the freedom of
creative activity (comprising freedom of the process of
creation and freedom of spreading products of creative
activity) is one of the most important manifestations of
freedom of self-expression, which is one of the universally
recognised innate human rights and which is entrenched in, as
well as protected and defended by the Constitution; on the
other hand, the content of freedom of self-expression is
broader than that of freedom of creative activity and is not
limited thereby. Freedom of creative activity (as the freedom
of self-expression in general) is inseparably related to the
entrenched in Article 25 of the Constitution human right to
have his own convictions and freely express them (freedom of
convictions and their expression) and freedom to search for,
obtain and impart information and ideas (freedom of
information), which are in their turn directly interrelated.
20. When construing the content of the entrenched in the
Constitution freedom of human convictions and their expression,
the Constitutional Court has held: convictions are a spacious
and diverse constitutional notion comprising political and
economic convictions, religious feelings, cultural attitudes,
ethic and aesthetic views, etc.; freedom to have convictions
means that a person is free to form his convictions himself, to
form and express his attitudes, choose values of world-view; he
is protected from any compulsion, his attitudes may not be
subject to control; a duty of state institutions is to ensure
and protect this freedom of the person; the content of
convictions is a private matter of a human being; freedom of
convictions and their expression entrenches ideological,
cultural and political pluralism; no convictions or ideology
may be declared compulsory and forced upon an individual; the
state must be neutral in regard to convictions, it has no right
to establish any compulsory system of convictions; the right to
freely express convictions is inseparable from the freedom to
have such convictions; freedom of expression of convictions is
a possibility to express thoughts, views, and convictions
without hindrance orally, in writing, in signs, and by applying
other ways and means of spreading information; freedom of
expression of convictions comprises also the freedom not to
disclose one's convictions, and not to be forced to disclose
them. The Constitutional Court has also held that freedom to
have convictions in general may not be limited, while the
freedom to express convictions may be limited only upon the
procedure established by laws and only when it is necessary in
order to protect the values indicated in Paragraph 3 of Article
25 of the Constitution-health, honour and dignity, private
life, and morals of a human being-or to defend constitutional
order; according to Article 145 of the Constitution freedom of
expression of convictions may also be limited temporarily by
introducing a state of war or emergency (Constitutional Court
ruling of 13 June 2000). In this context it should be noted
that the validity of limitation of a human right or freedom may
be assessed in a democratic state according to the criteria of
reasonability and obvious necessity, it must inter alia be in
line with the concept of justice (Constitutional Court rulings
of 13 February 1997 and 13 June 2000). In its rulings the
Constitutional Court has held more than once that according to
the Constitution human rights and freedoms may be limited only
if the following conditions are met: this is done by law; the
limitations are necessary in a democratic society in order to
protect the rights and freedoms of other persons, the values
that are entrenched in the Constitution, as well as
constitutionally important objectives; by restrictions one does
not deny the nature and essence of rights and freedoms; and
when the constitutional principle of proportionality is
followed.
21. When construing the content of the entrenched in the
Constitution freedom of information as an innate freedom of a
human being, the Constitutional Court has held: this freedom is
one of the fundamentals of an open, just, and harmonious civil
society and state under the rule of law, as well as an
important pre-condition for the implementation of various
rights and freedoms of the person which are entrenched in the
Constitution, since the person can implement most of his
constitutional rights and freedoms in an all-sufficient manner
only if he has the right to seek, obtain and impart information
unhindered. The Constitution guarantees and safeguards the
interest of the public to be informed, inter alia the freedom
of mass media (Constitutional Court rulings of 23 October 2002
and 26 January 2004). It should be stressed alongside that
freedom to express convictions and impart information is
incompatible with criminal actions-the instigation of national,
racial, religious, or social hatred, violence and
discrimination, slander and disinformation (Paragraph 4 of
Article 25 of the Constitution); thus the constitutional
concept of freedom of information (as well as the freedom of
expression of convictions) does not comprise the seeming
freedom, which denies the constitutional values in their
essence, to perform criminal actions indicated in Paragraph 4
of Article 25 of the Constitution-to spread ideas, views, etc.,
by which national, racial, or social hatred, violence or
discrimination is instigated, persons are being slandered or
society or its separate members are being misinformed. Freedom
of information is not absolute, its limits are defined in the
Constitution. In this context one should note that in
exercising rights and freedoms, the human being must observe
the Constitution and the laws of the Republic of Lithuania and
must not impair the rights and freedoms of other people
(Article 28 of the Constitution). Under the Constitution, it is
not permitted to establish any such legal regulation by which,
while consolidating the guarantees for implementation of the
freedom of information, conditions would be created to violate
the other constitutional values and the balance among the
constitutional values (Constitutional Court ruling of 23
October 2002). However, any restrictions of freedom of
information must be based on the same constitutional criteria,
as in case of restrictions of other fundamental human rights
and freedoms: freedom of information may be restricted, if this
is done by law, if the restrictions are necessary in a
democratic society in attempt to protect the rights and
freedoms of other persons and the values entrenched in the
Constitution as well as the constitutionally important
objectives, if the restrictions do not deny the nature and
essence of the rights and freedoms, and if the constitutional
principle of proportionality is followed (Constitutional Court
rulings of 23 October 2002 and 26 January 2004).
22. with regard to what has been said, the freedom of
creative activity of every human being (which comprises the
freedom of process of creation and freedom of spreading results
of creative activity), which is entrenched in the Constitution,
has much in common with the constitutional freedoms of
convictions of a human being and their expression, as well as
freedom of information. The constitutional freedom of creative
activity of every human being (which comprises the freedom of
process of creation and freedom of spreading products of
creative activity), as an innate right, implies the right of
every human being to realise without hindering his creative
powers or abilities in any area of purposeful creative activity
of human beings, where such activity may (but not necessarily
does) result in any material or spiritual values (art, science,
architecture, technology, etc.) which, from the standpoint of
the Nation and/or individual communities, are to be held and
fostered. In this regard freedom of creative activity is a
condition of pluralism in the society, sapidity and variety of
public life.
The human being uses the freedom of the process of
creation without any hindrance and control, he acts only at his
own discretion, by following his own convictions. An attempt to
the freedom of creative process may be linked also with
violation of his right to privacy and freedom of convictions.
It should be noted that the Constitution guarantees to every
human being the freedom of the process of creation irrespective
of true or implied talents, abilities, his personal or other
characteristics, legal status (inter alia belonging or
non-belonging to any association of artists), as well as
irrespective of possible results of creative activity of that
person, i.e. irrespective of the fact whether or not these
results will be assessed as cultural values (achievements) that
have any permanent value. In its ruling of 1 July 2004, the
Constitutional Court held: "The established in the Constitution
notion of creative activities is integral, its content does not
depend inter alia upon a person, who is engaged in it."
According to the Constitution the state may not discriminate
any creative activity, prohibit or restrict any trend of
creative activity only due to the fact that in the opinion of
the legislator this creative activity and/or its possible
results are seemingly not useful to society, though they are
not detrimental either. The constitutional duty of the state to
ensure freedom of process of creation for every human being
comprises not only its duty not to discriminate any creative
activity itself, but also to protect and defend this freedom of
a human being from illegal encroachment upon it by other
persons. Alongside, one should stress that one may not construe
the freedom of process of creation of every human being, which
originates from the Constitution, as the one which implies also
an opportunity for a human being to realise his creative powers
and abilities, when such activity violates laws, as well as
rights and freedoms of other persons; freedom of process of
creative activity does not deny the liability of the person for
his activity, by which one strives to create any material or
spiritual cultural values.
Freedom of spreading products of creative activity is not
absolute; the established in the Constitution limits of freedom
of spreading products of creative activity are narrower in
comparison to the freedom of process of creative activity. Like
the constitutional concept of freedoms of information and
expression of convictions does not comprise an alleged freedom
of spreading the ideas, attitudes, etc., by which national,
racial, or social hatred, violence or discrimination is
instigated, persons are slandered or society or its individual
members are misinformed, the constitutional concept of freedom
of spreading products of creative activity does not comprise an
alleged freedom, which denies in essence the constitutional
values, of spreading ideas, attitudes, etc., by which national,
racial, or social hatred, violence or discrimination is
instigated, persons are slandered or society or its individual
members are misinformed, orally, in writing, in signs, or by
applying other ways and means of transferring information, i.e.
it does not comprise the aforementioned alleged freedom, which
denies the constitutional values, to engage in criminal actions
indicated in Paragraph 4 of Article 25 of the Constitution. The
Constitution does not tolerate situations where one abuses the
freedom of spreading products of creative activity as the
freedom of expression in general or any other constitutional
human right or freedom, where one uses it as a cover for the
actions, by which certain values entrenched in and protected by
the Constitution are denied in essence. The state has a
constitutional duty to establish such legal regulation, where
one is able to ensure that the freedom of spreading products of
creative activity will not be used as a cover while seeking to
attain the aforementioned unconstitutional objectives. It
should be noted also that according to the Constitution freedom
of spreading products of creative activity, like the freedom of
information and freedom of expression of convictions, may be
restricted upon the procedure established by law and this may
be done in cases, where it is necessary to protect values
indicated in Paragraph 3 of Article 25 of the
Constitution-health, honour and dignity, private life, and
morals of a human being, or to defend constitutional order (it
may be inter alia temporarily limited by introducing martial
law or a state or emergency). However, any restrictions of
freedom of spreading products of creative activity must be
based on the same constitutional criteria as the restrictions
of other fundamental human rights and freedoms: this freedom
may be restricted only if this is done by law, only if they are
necessary in a democratic society in order to protect the
rights and freedoms of other persons, the values that are
entrenched in the Constitution, as well as constitutionally
important objectives, only if by the restrictions one does not
deny the nature and essence of rights and freedoms, and only if
the constitutional principle of proportionality is followed.
23. By ensuring the freedom of creative activity
(comprising the freedom of process of creation and freedom of
spreading products of creative activity) and freedom of culture
in general, pursuant to the Constitution the state has not only
duties with negative content (inter alia not to discriminate
any creative activity and to protect this freedom from illegal
encroachment upon it by other persons), but duties with
positive content as well.
It has been held in this Constitutional Court ruling that
every human being has the right to use freely the created
cultural values. In the Constitution one has entrenched the
freedom of accessibility to cultural values. This freedom,
protected and defended by the Constitution, is related with the
entrenched in Article 25 of the Constitution freedom of a human
being to search for and obtain information and ideas, and the
compulsory condition of the aforementioned freedom-freedom of a
human being to form his convictions and views himself-which
also originates from the Constitution. The freedom of
accessibility to cultural values is related also with the
imperative of open society, which is consolidated in the
Constitution: if this freedom is not ensured, the striving for
an open society would suffer damage as well.
The entrenched in the Constitution freedom of
accessibility to cultural values implies also the negative duty
of the state to ensure that human being is not hindered from
free use of the created cultural values, and the positive duty
of the state to adopt such decisions, which would create
material, organisational and legal pre-conditions for making
cultural values available to a bigger number of people, and for
allocating funds from the budget to the protection of monuments
of science, art, history, architecture, other monuments and
values of culture, as well as to the establishments of culture
(museums, theatres, libraries, organisations arranging
concerts, etc.). The constitutional imperative of accessibility
to cultural values implies the duty of the state to establish
and maintain state institutions (establishments or enterprises)
through which functions of the state are performed, which are
aimed at maintaining, propagating and developing national
culture, the value protected and defended by the Constitution,
(inter alia establishments or enterprises providing public
cultural services) or at initiating and encouraging in other
way the establishment and maintenance of other,
non-governmental, institutions, the purpose of which is
development of culture. The legislator enjoys broad discretion
in the area of establishment of bases of the system of cultural
establishments and other institutions (inter alia of the
establishments or enterprises providing services of public
culture), the purpose of which is to take care of development
of culture; institutions of executive power, within their
competence, enjoy broad discretion in this area as well;
establishment of bases of the system of cultural institutions
(inter alia of the establishments or enterprises providing
services of public culture), the purpose of which is to take
care of development of culture, is a matter of cultural policy
of the state. On the other hand, when forming and implementing
the cultural policy, one must pay heed to the resources of the
state and society, material and financial capabilities of the
state and society, as well as other important factors, inter
alia expediency. However, it should be stressed that, according
to the Constitution, there may be no such legal regulation
where the state does not substantially support the system of
institutions contributing to development of culture.
24. The entrenched in the Constitution freedom of culture
is to be construed while taking account also of the right of
union of citizens or freedom of association, one of the
fundamental rights of a citizen of a democratic state, which is
consolidated in Article 35 of the Constitution. To belong or
not to any association-the person makes this decision on his
free will (Constitutional Court rulings of 21 December 2000 and
1 July 2004). The unions provided for in the Constitution are
founded and act in the interests of their members. The basic
element of the constitutional legal status of the unions
provided for in the Constitution is their autonomy in regard to
the state governing bodies, and other state or municipal
institutions, in other words-the public power. Only being
autonomous in regard to the state governing bodies, and other
state and municipal institutions the unions may efficiently act
as an important element of the civil society, be a form of
self-expression of citizens of a democratic state and a
guarantee of public activity (Constitutional Court ruling of 1
July 2004).
One may enjoy the freedom of culture (comprising the
freedom of creative activity and freedom of accessibility to
cultural values), like most of the other constitutional rights
and freedoms, not only individually, but through the unions
provided for in Article 35 of the Constitution as well. It is
not permitted to establish any requirements or limitations on
the activity of artists, nor to prevent them or other persons
from founding associations that spread culture and/or defend
material and spiritual interests of artists.
25. A necessary condition of the freedom of culture, as an
innate freedom of a human being (which comprises the freedom of
creative activity and freedom of accessibility to cultural
values) is support to culture, as well as protection of
cultural monuments and values. It has been mentioned that it is
established in Paragraph 2 of Article 42 of the Constitution
that the state supports culture and science and protects
Lithuanian historical, art, and cultural monuments and other
culturally valuable objects. It has been held in this
Constitutional Court ruling that support and protection of
culture by the state is an important function of the state and
a public interest. It should be stressed that the provisions of
Paragraph 2 of Article 42 of the Constitution are imperative:
not only do they specify that culture must be supported, that
cultural monuments and culturally valuable objects must be
protected, but also they consolidate the entity, which has both
positive and negative duties to ensure that culture is
supported and cultural monuments and culturally valuable
objects are protected, which namely is the state.
Paragraph 2 of Article 42 of the Constitution is to be
construed by taking account of the fact that, as already
mentioned, the constitutional concept of culture comprises
various values held and nourished by the Nation and individual
communities, including historical experience, spoken and
written language, etc., as well as of the fact that in the
constitutional concept of culture one defines a purposeful
material and spiritual creative activity of human beings and
its results, inter alia art and science. In this regard the
constitutional bases, entrenched in Paragraph 2 of Article 42
of the Constitution comprise also the established in this
paragraph duty of the state to support science, while the
constitutional bases of protection of cultural monuments and
culturally valuable objects, entrenched in Paragraph 2 of
Article 42 of the Constitution, comprise also the consolidated
in this paragraph duty of the state to take care of monuments
of Lithuanian history and art.
The provisions of Paragraph 2 of Article 42 of the
Constitution that the state supports culture and science and
takes care of Lithuanian historical, art, and cultural
monuments and other culturally valuable objects mean that the
state is constitutionally obligated to support and foster
culture as a national value of universal importance-the
material and spiritual creative activity and its results that
are to be transferred to future generations; according to the
Constitution, the state must not only refrain from hindering
the natural development of culture (inter alia from
discriminating against any creative activity), but by its
positive decisions (inter alia legal regulation) encourage and
support by using state funds and other resources the creation,
spreading, propagation and preserving material and spiritual
cultural values. It should be noted that decisions of
institutions of public power regarding the state support to
institutions or separate artists engaged in cultural activity,
as well as separate initiatives developing culture (projects,
programs) must be adopted while paying heed to the principles
of equal rights of all persons and honest competition, as well
as the requirement of publicity, which are entrenched in the
Constitution. The imperative of a just society and social
harmony, which is consolidated in the Constitution, implies
that while supporting culture (inter alia creative activity)
one must pay heed to the resources of the state and society,
material and financial capabilities and other important
factors, inter alia expediency.
26. It has been held in this Constitutional Court ruling
that state support to culture, and protection of cultural
monuments and culturally valuable objects is a public interest
and an important function of the state. It has also been held
that pursuant to the Constitution there may be no such legal
regulation where the state does not substantially support the
system of institutions contributing to development of culture.
The constitutional consolidation of culture as a publicly
important value results in the support of culture on the
national scale.
The Seimas enjoys the discretion to establish which
institutions form and implement the policy of culture, and
perform the function of state support to culture and its
protection. In Lithuania there is an established tradition
(similar to majority of states) it is the Ministry of Culture
that enjoys wide range of powers when implementing the cultural
policy.
27. It has been mentioned that certain state functions of
may also be transferred by laws to municipalities for
execution, and that the legislator enjoys broad discretion to
establish by law, what functions (all or some of them to a
certain extent) are assigned to municipalities. It has also
been mentioned that performance of certain functions of the
state may not be objectively non-transferred (at least to a
certain extent) to municipalities, because otherwise an
efficient performance of such functions would not be ensured.
In the context of the constitutional justice case at issue
one should stress that it is such function of the state which
constitutes support and protection of culture. The fact that
the above-mentioned function of the state may not be not
transferred at least to a certain extent to municipalities is
caused by the nature of both this function and local
self-government as self-administration and self-activity
according to the competence defined in the Constitution and
laws of the territorial communities of administrative units
that are provided for in laws. The spread of culture is, first
of all, its spread in the closest environment, territorial
surroundings among those who live in the respective area on
whose territory certain cultural objects are located;
accessibility to cultural values implies first of all their
accessibility to the members and residents of community, in the
territory of which respective cultural objects are located;
cultural establishments (museums, theatres, libraries, concert
organisations, etc.) function in certain administrative
territorial units, localities; cultural monuments and other
objects of culture are located also in certain territories, the
local authorities (their institutions or officials) possessing
which may not avoid respective obligations related to
maintaining of these monuments, ensuring their accessibility
etc.; creators are also members of territorial communities;
associations of creators function in particular administrative
territorial units, thus the state support to creators and their
associations may be rational and efficient only if one takes
account of the local conditions, in which creators act and
their association function; etc. Moreover, state support and
development of culture as a constitutionally protected and
defended value would be impossible, if culture was not
developed in regions, separate parts of the territory of the
state, separate self-governing territorial communities, which
form a part of the entire community of the state-the civil
Nation.
The extent to which the performance of the function of
support and protection of culture should be transferred to
municipalities is subject to the state policy of culture. The
legislator enjoys broad discretion in this regard. However, he
must pay heed to the independence of municipalities and freedom
of their activity within the competence established by the
Constitution and laws, the principles of co-ordination of
interests of municipalities and the state, as well as the
constitutional concept of local self-government.
Alongside it should be noted that the fact that support
and protection of culture as a function of the state may not be
to a certain extent not transferred to municipalities does not
mean that the state (its institutions) may opt out from the
performance of this function. It was held that a relation
exists between the administration of the state and local
self-government, which manifests itself inter alia in the fact
that centralised governance of the state in administrative
territorial units is combined with decentralisation, that in
the laws one consolidates cooperation of institutions of
central power and municipalities, that the state supports
municipalities in various ways and forms, as well as that the
state, in the forms defined by laws, supervises activity of
municipalities and coordinates joint actions of the state and
municipalities when striving for the important social
objectives. Thus, to whatever extent the execution of the
aforementioned function is transferred to municipalities,
according to the Constitution the state still has a duty to
ensure that this function is performed properly.
28. It has been mentioned that according to the
Constitution functions of municipalities may be established
only by means of a law; this may not be done by a substatutory
legal act. In this context one should also note that support
and protection of culture in the Constitution is not expressis
verbis consolidated as the function which is assigned
exceptionally to municipalities (respective competence of
municipalities is not directly consolidated in the
Constitution). Thus, the duty of municipalities to perform (to
a certain extent) the function of support and protection of
culture may be established by the law only; only by the law one
may establish respective competence of municipalities as well.
The originating from the Constitution requirements of legal
clarity are applicable to such laws: the legal regulation
established therein must be such that it is clear to what
extent do municipalities perform this function and to what
extent the performance of it is left to the state.
Due to the fact that according to the Constitution one may
not assign to the institutions of self-government any such
function which they are not able to perform, a duty appears to
the legislator to establish by laws such legal regulation,
where, having taken into account resources, as well as material
and financial capabilities of the state and society, and other
important factors one would ensure (to a certain extent) the
financing (inter alia from the state budget) of the function of
support and protection of culture, which is transferred to
municipalities. The municipalities (their institutions or
officials), the councils of which enjoy powers, pursuant to the
Constitution, to draw up and approve an independent budget,
have also a duty to adopt decisions according to the competence
defined by the Constitution and laws so that funds that are
necessary for implementation of their functions are raised and
used in a proper manner; they are in charge of sufficient
execution of functions transferred to them. However, it should
be held that the constitutional consolidation of culture as a
national value of universal importance does not permit to place
the burden of providing funds to the institutions that
contribute to the development of culture on municipalities
only.
29. It has been held in this Constitutional Court ruling
that pursuant to the Constitution the state has a duty to found
and provide funding to the state institutions (establishments
or enterprises, through which functions of the state are
performed) whose objective would be taking care of development
of culture (inter alia establishments or enterprises providing
public cultural services), or to initiate or encourage founding
and providing support to other-non governmental-institutions,
the purpose of which is taking care of development of culture,
as well as that according to the Constitution there may be no
legal regulation where the state does not substantially
maintain the system of institutions contributing to the
development of culture.
In order to perform (to the established extent) the
function of supporting and protecting culture, which is
transferred to them, and to implement their competence in this
area municipalities may and, in certain cases, must have
respective institutions that contribute to the development of
culture (inter alia institutions or enterprises that provide
services of public culture), which are found, reorganised,
restructured in any other way or liquidated by municipalities
(their institutions) in line with requirements established in
laws.
The legislator, while paying heed to the Constitution, may
establish by laws certain conditions and/or procedure, which
must be followed by municipalities when implementing their
rights of the founder of institutions or enterprises (inter
alia establishments or enterprises that provide services of
public culture) that are founded by them and that contribute to
the development of culture, as well as other limitations that
restrict to a certain extent the rights of municipalities as
the founders of respective establishments or enterprises and
guarantee that municipalities will properly perform the
function of support and protection of culture which is
transferred to them (to the established extent).
30. It has been mentioned that due to the fact that the
public interest, which must be ensured by local self-government
as well, and particular tasks that are faced within particular
period by the whole society, the state and territorial
communities, are dynamic and they are subject to change, the
legislator may and, in certain cases, must change by means of a
law (expand, narrow or correct it otherwise) the scope and
content of functions that are transferred to municipalities, or
transfer new functions, which were previously not performed, to
be performed by municipalities and/or establish that
municipalities cease to perform certain functions, which were
performed earlier; in addition, it has been mentioned that the
legislator may, and in certain cases even must also
respectively correct the competence (empowerments) of
municipalities (their institutions or officials), which is
needed in order to perform the functions transferred to
municipalities.
The cultural policy of the state cannot be non-dynamic,
either; its formation and implementation are corrected by
taking various factors into account. Therefore, the content of
the function of support and protection of culture, which is
transferred to municipalities by law, may be changed by law,
the extent, to which the municipalities are assigned with
performance of this functions may be extended or reduced by
laws. In the context of the case at issue it is to be held that
in order to more efficiently ensure the interests of
municipalities, to better take into consideration of the local
conditions of the localities in which creators and their
associations act, to bring the spread of culture closer to
territorial communities, to decentralise administration of
culture, as well as by other reasons (first of all the
expediency), one may commission municipalities by laws with
performance of the function of support and protection of
culture to a greater extent-the performance of this function
(to a certain extent) may be transferred from the national
level to municipal level. Alongside, the reverse process when
the performance of the aforementioned functions (to a certain
extent) is transferred from municipal level to the national
level, is, in general, not impossible as well.
When transferring the performance (to a certain extent) of
the function of support and protection of culture from the
national level to municipal level, one must pay heed to the
constitutional concept of local self-government, the entrenched
in the Constitution independence of municipalities and freedom
of their activity within the competence established by the
Constitution and laws, the principles of co-ordination of
interests of municipalities and the state, and interests of
municipalities; one may not establish to municipalities such
obligations, which they are unable to fulfil; if necessary, one
should correct (increase or reduce) funding of the functions of
respective municipalities.
31. The above-mentioned transfer of performance of
functions (to a certain extent) of support and protection of
culture from the national level to municipal level may be
related to the change of subordination of certain state
institutions (establishments or enterprises), the objective of
which is to take care of development of culture (inter alia
establishments or enterprises that provide services of public
culture), whereby the administration of such establishments is
transferred from the system of state administration to local
self-government. The legislator, while paying heed to the
Constitution, may establish by laws certain conditions and/or
procedures, which must be followed by municipalities when
exercising the rights of the founders of the establishments or
enterprises (inter alia establishments or enterprises that
provide services of public culture) that are transferred to
municipalities and contribute to the development of culture, as
well as other limitations restricting to a certain extent the
rights of municipalities as founders of respective
establishments or enterprises, which would ensure the proper
performance of the transferred to them (to a certain extent)
function of support and protection of culture.
It has been held that assignment of any state
establishment or enterprise to municipality (inter alia
transfer of rights of the founder of this establishment or
enterprise) must be based on the law, and that this requirement
originates from the Constitution. Thus, the change of
subordination of state institutions (establishments or
enterprises), the objective of which is to take care of
development of culture (inter alia establishments or
enterprises that provide services of public culture) may not be
based not on the law; this requirement originates from the
Constitution as well. The constitutional requirements of legal
clarity and legal certainty are applicable to the legal
regulation, according to which a respective state institution
enjoys powers to issue legal acts, on the basis of which a
particular state institution (establishment or enterprise), the
objective of which is to take care of the development of
culture (inter alia establishment or enterprise that provides
services of public culture), is assigned to municipality (inter
alia the rights of the founder of this establishment or
enterprise are transferred): it must be such, that it is clear
whether the rights of municipalities, as of the holder (the
sole holder or holder in partnership with other entities, inter
alia state institutions) of the rights of the founder of a
respective establishment or enterprise, are restricted to any
extent or no such restrictions have been established, moreover,
it should not establish any uncertainty whether respective
establishments or enterprises are financed or supported in any
other way by municipality, or the state (its institutions), or
whether the burden of financing is divided in any way between
municipality and the state (its institutions), whether the
powers of control or supervision of these establishments or
enterprises are vested in municipality (its institutions or
officials), or the state (its institutions or officials), or
both municipality (its institutions or officials) and the state
(its institutions or officials), etc. Municipalities must be
informed about the foreseen transfer of the above-mentioned
institutions to them.
In the context of the case of the constitutional justice
at issue one should note that when the respective state
institution transfers the cultural establishment or enterprise
to the municipal level (inter alia when one transfers the
rights of the founder to municipality), the state may and, in
certain cases, must establish by the law various restrictions
applicable to municipality, which must be followed by the
latter when exercising the rights of the founder, inter alia
when adopting decisions on reorganisation, liquidation or any
other restructuring of establishments or enterprises that are
transferred to municipalities. In certain cases, if the state
establishes no such restrictions applicable to municipalities,
performance of the function of support and protection of
culture, which is transferred to the municipal level, would
become more difficult or municipalities could even refuse to a
certain extent the performance of the function of support and
protection of culture, which is set as their function by laws.
This restriction of independence of municipalities originates
from the Constitution and in itself should not be considered as
disregard of interests of municipalities; by this restriction
originating from the Constitution one ensures the co-ordination
of interests of municipality and the state.
In this context one should mention that the observance of
the Constitution and the laws, as well as the execution of the
decisions of the Government by municipalities is supervised by
representatives appointed by the Government (Paragraph 2 of
Article 123 of the Constitution).
In its decision of 11 February 2004, the Constitutional
Court held that while defining the competence of municipal
councils and executive bodies accountable to them, the
legislator can also establish the procedure of realisation of
this competence, the supervision and control of municipal
activities, as well as the officials who enjoy powers to
control or supervise the activities of municipal councils and
executive bodies accountable to them; respective state
officials (civil servants and other persons irrespective of how
they are referred to in laws) have the right to adopt decisions
upon which depend the adoption and implementation of decisions
of municipal councils within their competence defined by the
Constitution and laws. Thus, the powers of control and
supervision of decisions of municipalities (their institutions
or officials) may be assigned by laws (while paying heed to the
entrenched in the Constitution independence of municipalities
and freedom of their activity within the competence established
by the Constitution and laws, the principles of co-ordination
of interests of municipalities and the state, as well as the
constitutional concept of local self-government) to other state
institutions (their officials) as well.
32. It has been held in this Constitutional Court ruling
that one must provide funding (inter alia from the state
budget) for the function of support and protection of culture
that is transferred (to a certain extent) to municipalities,
that the prohibition originates from the Constitution to place
the burden of funding the institutions that contribute to the
development of culture solely on municipalities, as well as the
prohibition for the state not to substantially support the
system of institutions that contribute to the development of
culture. It has also been mentioned that in order to be able to
perform the transferred to them (to a certain extent) function
of support and protection of culture and exercise their
competence in this area municipalities may and, in certain
cases, must have respective institutions that contribute to the
development of culture (inter alia establishments or
enterprises that provide services of public culture) and that
are founded, reorganised or restructured in any other way, or
liquidated by municipalities in line with the requirements
established in laws, as well as the municipalities themselves
(their institutions or officials) have a duty to adopt
decisions according to their competence defined in the
Constitution and laws, which are aimed at collecting necessary
funds for performance of their functions and that these funds
are used in a proper manner.
By right of ownership municipalities may own only the
property which they need in order to perform the aforementioned
function (to the established extent). Municipalities are
subjects to the right of ownership. Beside that, municipalities
possess by right of trust certain property, needed in order to
perform the above-mentioned functions (to the established
extent), which is owned by the state by right of ownership.
Both the property, which belongs by right of ownership to
municipalities, and the property, which belongs by right of
ownership to the state and which is possessed by municipalities
by right of trust, comprise the material basis for the
performance of the function of support and protection of
culture that is transferred (to a certain extent) to
municipalities.
In this context one should stress that the change of
subordination of a certain state institution (establishment or
enterprise) the objective of which is to take care of the
development of culture (inter alia establishments or
enterprises that provide services of public culture), when the
administration of this establishment is transferred from the
system of administration of the state to self-government, in
itself does not mean that in every case the state-owned
property (its part) that is possessed by this institution by
right of trust or other (non-ownership) right is transferred to
municipal ownership. One may transfer state-owned property,
inter alia the one which is possessed by another person by
right of trust, to municipal ownership only while paying heed
to the Constitution and acting in line with laws.
33. It has been mentioned that in the constitutional
justice case at issue, when deciding whether the Law "On the
Procedure of Reorganisation and Liquidation of Establishments
of Culture" (wording of 13 June 1995) and Items 1, 2.3 and 2.4
of Government Resolution No. 1320 "On the House of Signatories
to the Act of Independence of Lithuania and the House of
Artists of Lithuania" of 28 November 1997 are not in conflict
with Paragraph 2 of Article 120 of the Constitution, one should
take account of the provisions of Articles 23, 47, and 128 of
the Constitution that consolidate the constitutional bases of
relations of ownership in the Republic of Lithuania, and links
of these relations with the indicated by the petitioner
provision of Paragraph 2 of Article 120 of the Constitution
that municipalities act freely and independently within their
competence, which shall be established by the Constitution and
laws, and other provisions of the Constitution that consolidate
the constitutional concept of local self-government.
34. It is established in Paragraph 2 of Article 128 of the
Constitution that the procedure concerning the possession, use,
and disposal of state-owned property shall be established by
law.
When construing Paragraph 2 of Article 128 of the
Constitution, the Constitutional Court held in its ruling of 30
September 2003: the constitutional imperative "ownership
obligates" is to be addressed also to the state and municipal
institutions and officials that have the powers to adopt
decisions concerning the possession, use and disposal of the
property which belongs to the state by right of ownership; one
may not establish any such legal regulation, where the property
that belongs to the state by right of ownership would be
possessed, used and disposed of in such a manner that the
interests or needs of only one social group or separate persons
would be satisfied and this property would not serve the public
interest, need of society, welfare of the Nation (which may not
be understood only in the material or financial sense);
state-owned property is not an end in itself, it must render
benefit for the society; state-owned property must be
possessed, used and disposed of lawfully; this is supervised by
state control.
35. The provision of Paragraph 2 of Article 128 of the
Constitution that procedure concerning the possession, use, and
disposal of state-owned property is established by law is to be
construed in the context of the provision of Paragraph 1 of
Article 23 of the Constitution that property shall be
inviolable and the provision of Paragraph 2 of this article
that the rights of ownership shall be protected by laws.
Inviolability of property is a constitutional principle
defended by law. Nobody may seize property arbitrarily and on
other than legal basis. The right to demand that other persons
do not violate his right of ownership and that the state
ensures the protection of his ownership rights is guaranteed by
the Constitution to the subject of ownership-the owner.
When construing Paragraph 2 of Article 128 of the
Constitution together with Paragraphs 1 and 2 of Article 23 of
the Constitution, the Constitutional Court has held that the
provision of Paragraph 2 of Article 23 of the Constitution that
the rights of ownership shall be protected by laws means that
the laws must protect the rights of all owners, therefore also
the right of ownership of the state as the organisation of the
entire society (Constitutional Court ruling of 30 September
2003). According to Paragraphs 1 and 2 of Article 23 of the
Constitution, the rights of ownership of the state and
municipalities (territorial communities) are protected and
defended as well. The provision that the Constitution protects
and defends the rights of ownership of municipalities as well
is followed in the jurisprudence of the Constitutional Court
(Constitutional Court ruling of 23 June 1999).
36. Pursuant to the Constitution, state-owned property
must be preserved and not misappropriated. Of course, this does
not mean that it may not be transferred to ownership of other
entities (save the exceptions that originate from the
Constitution itself).
When construing Paragraph 2 of Article 128 of the
Constitution, the Constitutional Court has held that the
transfer of property as ownership (also including its
privatisation), which belongs by right of ownership to the
state to other entities may be constitutionally justifiable
only if it renders more benefit to the society, when by this
transfer significant, constitutionally grounded needs/interests
of society are sought to be satisfied. Such transfer (both
repayable and gratuitous) would be constitutionally
unjustifiable if it caused evident harm to the society, and
violated the rights of other persons. The transfer of the
property which belongs by right of ownership to the state as
ownership to other entities must be based on the law. The laws
must inter alia establish the state institutions which have the
powers to adopt decisions concerning the transfer of the
property which belongs by right of ownership to the state as
ownership to other entities, and the powers of these
institutions to transfer the said property, as well as the
conditions and procedure of this transfer of the property. It
is not permitted to establish such legal regulation according
to which the property that belongs to the state by right of
ownership would be transferred as ownership to other entities
in order to satisfy the interests or needs of only one social
group or individual persons, if this does not comply with the
need of society, the public interest, or does not serve the
welfare of the Nation (Constitutional Court ruling of 30
September 2003).
Moreover, as already mentioned in the Constitutional Court
ruling of 30 September 2003, the legislator, while observing
the Constitution and taking account of various factors, may
establish the legal regime (conditions and procedure of the
use) of the property which is being transferred as ownership to
other entities in order to further safeguard the interests of
the society, the welfare of the Nation, and to implement the
values which are entrenched in the Constitution.
It is to be held that one must pay heed to all these
constitutional requirements also when the subordination of the
particular state institution (establishment or enterprise) that
contributes to the development of culture (inter alia
establishment or company providing public cultural services) by
transferring its administration from the system of state
administration to self-government. Otherwise, one would violate
the imperative of an open, just, and harmonious civil society,
which is entrenched in the Constitution, and the constitutional
principle of a state under the rule of law.
It has been mentioned that the change of subordination of
a particular state institution (establishments or enterprise),
the objective of which is to take care of the development of
culture, (inter alia establishments or enterprises providing
public cultural services) when the administration of this
establishment or enterprise is transferred from the system of
state administration to self-government, does not mean itself
that in all cases the state-owned property (its part) that was
possessed by municipality by right of trust or other
(non-ownership) right is transferred to the ownership of the
latter.
Alongside one should note that when changing the
subordination of a particular state institution (establishment
or enterprise), the objective of which is to take care of the
development of culture, (inter alia establishments or
enterprises providing public cultural services) when the
administration of this establishment or enterprise is
transferred from the system of state administration to
self-government, one may decide the issue of ownership of the
state-owned property that was possessed by right of trust by
the institution (establishment or enterprise) which is being
transferred to the municipality. This (as well as other)
state-owned property may be transferred to a respective
municipality as ownership as well. This may be done only on the
bases and upon the procedure established by laws; if the
aforementioned property, on the bases and upon the procedure
established by laws, is not transferred to a respective
municipality as ownership, in all cases it remains ownership of
the state, which may be possessed by right of trust or other
(non-ownership) right by the respective municipality,
institution or, if this is provided for by laws, other persons.
37. The provision of Paragraph 2 of Article 128 of the
Constitution that the procedure concerning the possession, use,
and disposal of state-owned property shall be established by
law is to be construed also in the context of the provision of
Paragraph 1 of Article 47 of the Constitution that the right of
exclusive ownership of the subterranean, as well as internal
waters, forests, parks, roads, historical, archaeological and
cultural objects of state importance shall belong to the
Republic of Lithuania.
It should be noted that despite several amendments to
Article 47 of the Constitution, the aforementioned provision
was present in the Constitution all the time (Paragraph 3 of
Article 47 of the Constitution (wording of 25 October 1992),
Paragraph 4 of Article 47 of the Constitution (wording of 20
June 1996), and Paragraph 1 of Article 47 of the Constitution
which is effective at present (wording of 23 January 2003)) and
it was not amended.
It is to be held in this case of the constitutional
justice at issue that while paying heed to the constitutional
concept of culture (comprising, as already mentioned, quite
diverse values held and nourished by the Nation and separate
communities), the notion of cultural objects of state
importance, which is used in Paragraph 1 of Article 47 of the
Constitution, is general, it comprises historical and
archaeological objects of state importance as well, but is not
limited to them; it is much broader. This notion comprises
diverse property- real property, movable property, property
that is to be attributed to the cultural heritage and that
recognised upon the established procedure as the one of state
importance. Moreover, other objects specified in Paragraph 1 of
Article 47 of the Constitution (for example, parks of state
importance) may be considered also as cultural objects of state
importance.
38. Culture (when this notion is used in its
constitutional sense) is always related with valuable objects.
The Constitution does not create preconditions for recognising
every cultural object that is to be attributed to the cultural
heritage, even of the greatest value, as the one of state
importance. It is not any cultural object, attributed to the
cultural heritage, but only the cultural object, the permanent
value and importance of which is great and the necessity to
preserve it for the future generations is such insistent that
without recognising it of state importance a threat would arise
to its preservation and its accessibility to the public would
not be ensured, that may be recognised as the one of state
importance.
It is to be noted that the recognition of cultural objects
as the ones of state importance implies a special regulation of
relations linked to the maintenance, protection and use of such
cultural objects. Having taken into account the special
permanent value and importance of the above-mentioned cultural
objects, as well as the necessity to preserve them for future
generations, in regard to the aforementioned cultural objects,
in comparison to other objects, one must establish special,
exceptional legal regime by law.
It has been mentioned that the freedom of accessibility to
culturally valuable objects-freedom of every human to use the
created culturally valuable objects-is entrenched in the
Constitution. Therefore the legal regime established in regard
to the cultural objects of state importance must be such where
one ensures the accessibility to the aforementioned cultural
objects to the public and, alongside, does not inflict damage
upon these valuable objects, nor denies other constitutional
values.
The established by the law legal regime of cultural
objects of state importance may comprise inter alia various
prohibitions, obligations, other restrictions or limitations
related to possession, use or disposal of these cultural
objects. This legal regime may be differentiated by taking
account of the character (inter alia the fact whether the
respective cultural objects are real property or movable
property), features, and other factors of respective cultural
objects.
The state (its respective institutions or officials) have
a duty to control how the aforementioned legal regime is being
followed.
39. The provision of Paragraph 1 of Article 47 of the
Constitution that the right of exclusive ownership of the
subterranean, as well as internal waters, forests, parks,
roads, historical, archaeological and cultural objects of state
importance shall belong to the Republic of Lithuania, means
that the listed objects may belong by right of ownership solely
to the state, save the exceptions that originate directly from
the Constitution. The state (its institutions or officials) may
not adopt any decisions that could become the basis for
transferring these objects from the ownership of the state to
the ownership of other entities (save the exceptions permitted
by the Constitution).
40. It has been mentioned that the constitutional concept
of culture comprises various values held and fostered by the
Nation and individual communities, as well as that in the
constitutional concept of culture one stresses the purposeful
material and spiritual creative activity of human beings and
its results. The areas in which valuables objects of national
and universal importance may be created and must be preserved
are of great variety: art, science, education, architecture,
technology, etc.
The Constitution is an integral act (Paragraph 1 of
Article 6 of the Constitution). Its norms and principles
comprise a harmonious system. It is not permitted to construe
any provision of the Constitution in such manner where the
content of another constitutional provision could be distorted
or denied, since thus the essence of the whole constitutional
regulation would be distorted and the balance of the
constitutional values would be disturbed. The provision of
Paragraph 1 of Article 47 of the Constitution that the right of
exclusive ownership of the subterranean, as well as internal
waters, forests, parks, roads, historical, archaeological and
cultural objects of state importance shall belong to the
Republic of Lithuania I to be construed in the context of
Article 23 of the Constitution as well. It has been mentioned
that it is entrenched in Paragraph 1 of Article 23 of the
Constitution that property shall be inviolable, and in
Paragraph 2 that the rights of ownership shall be protected by
laws. In Paragraph 3 of this article it is established 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.
The Constitution, which consolidates the human rights and
freedoms (inter alia the freedom of culture and the right of
ownership) and recognises their innate nature, tolerates a
situation where the objects of culture of even the greatest
permanent value and obvious state or national importance belong
by right of ownership not only to the state, but other entities
as well, of course subject to the condition that these other
entities acquired the respective cultural objects in a legal
manner.
There are different ways how the above-mentioned cultural
objects of state importance (similar to other objects indicated
in Paragraph 1 of Article 47 of the Constitution, except the
subterranean) may become the ownership of other persons, but
not the state. A person (artist) may create them himself and
become their owner. A person may acquire such cultural objects
by transactions from another person-their legal owner; besides,
the other party of such transaction need not necessarily be
subject to the jurisdiction of the Republic of Lithuania. It
should also be mentioned that after the restoration of
independence in Lithuania the process of restitution commenced
(and is not over yet)-still the existing real property that was
nationalised and disseized in any other unlawful manner by the
occupation government is being returned to the former owners;
thus it is possible that even the property (for example
buildings), which is attributable to cultural objects of state
importance, is being returned to the former owners. It is
possible that a situation occurs where certain property, which
legally belongs by right of ownership not to the state, but to
another legal or natural person, due to its great permanent
value and importance to the future generations is or will be
declared upon the established procedure a cultural object of
state importance. In all these as well as other cases, where
cultural objects of state importance belong by right of
ownership not to the state but other persons, according to the
Constitution the state (its institutions or officials) must
tolerate this. Otherwise, one would violate the constitutional
imperative of an open, just, and harmonious civil society,
violate the innate human rights and freedoms, as well as other
values entrenched in, and protected and defended by the
Constitution.
On the other hand, the institute of expropriation (eminent
domain) is entrenched in the Constitution as well. According to
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. The Constitutional Court, while construing, in the context
of the problem of ownership of cultural objects of state
importance, Paragraph 4 of Article 47 of the Constitution
(wording of 20 June 1996), the text of which corresponds to the
text of the current Paragraph 1 of Article 47 of the
Constitution (wording of 23 January 2003), has held: the
Constitution does not reject an opportunity to make separate
cultural objects of state importance state-owned property; it
would depend on the public significance and value of
corresponding objects, as well as the necessity to guarantee an
opportunity of its endurance and preservation for the future
generations; such nationalisation of valuables of culture ought
to be carried out only pursuant to the requirements of
Paragraph 3 of Article 23 of the Constitution (Constitutional
Court ruling of 16 March 1999). It should be stressed that
nationalisation of cultural objects is possible only after
recognising them upon the established procedure as the ones of
state importance. One has to note that such nationalisation of
cultural objects of state importance, which belong by right of
ownership not to the state, but to other entities, is to be
considered as an exceptional measure.
In this context one should mention that, as already held
by the Constitutional Court in its ruling of 4 March 2003,
under Paragraph 3 of Article 23 of the Constitution, property
may be seized according to inter alia the following
requirements: the needs of society, for which property is
seized, are always particular and clearly expressed needs of
society for a concrete object of property, which would not be
objectively met if a certain concrete object of property were
not seized; an individual decision concerning the seizure of
property belonging to private ownership for the needs of
society must be adopted upon the procedure established by laws
in every case; 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 and the
procedure of paying the compensation to the owner; the owner
must be notified about the seizure of his property and the
amount 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; the established compensation must be
equivalent in value for the property seized; 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.
41. While taking account of the special permanent value
and significance of cultural objects of state importance, as
well as a need to preserve them for the future generations, the
state has a constitutional duty to take care of these objects
and protect them. It should be noted that the provision of
Paragraph 2 of Article 42 of the Constitution that the state
shall support culture and science and shall protect Lithuanian
historical, art, and cultural monuments and other culturally
valuable objects implies that the fact that certain cultural
objects of state importance (similar to various other objects
indicated in Paragraph 1 of Article 47 of the Constitution,
except the subterranean) belong by right of ownership not to
the state, but to other persons, does not relieve the state
from the duty to ensure their protection and take care of them.
42. In this context one has to stress that the
constitutional status of cultural objects of state importance
implies the duty of the state to keep records of cultural
objects of state importance, inter alia the duty of the
legislator to set by the law a list of cultural objects of
state importance and to mark separately which cultural objects
of state importance belong to the state, and which-to other
owners. If necessary, this list must be revised upon the
established procedure, by taking into account the fact whether
a need exists during a particular phase of development of
society and the state to include additional cultural objects in
this list (and/or a need to exclude certain cultural objects
from the aforementioned list). It should be stressed that the
inclusion of cultural objects of state importance in the
aforementioned list cannot depend upon the fact whether
respective cultural objects belong by right of ownership to the
state or other legal or natural persons. It should be stressed
also that the recognition of particular cultural objects that
belong by right of ownership not to the state, but to other
persons, as the ones of state importance does not mean their
nationalisation.
One should note that no such list of cultural objects of
state importance has been set by the law yet.
The specified requirements that originate from the
Constitution and are related to keeping record of cultural
objects of state importance and the duty of the state to take
care of cultural objects of state importance and to ensure
their protection (irrespective of the fact whether the
aforementioned cultural objects belong by right of ownership to
the state or other legal or natural persons) are mutatis
mutandis applicable to other objects indicated in Paragraph 1
of Article 47 of the Constitution as well.
43. It is to be stressed that the originating from the
Constitution duty of the state to take care also of cultural
objects of state importance that belong by right of ownership
not to the state, but to other persons, and to ensure their
protection may not be construed as the one which relieves their
owners from the duty to contribute themselves to the
preservation of the aforementioned cultural objects, and to
follow the legal regime established in regard of these cultural
objects that may comprise inter alia various prohibitions,
obligations, other limitations or restrictions related to
possession, use or disposal of these cultural objects. One has
to emphasize that the above-mentioned prohibitions,
obligations, limitations and restrictions must be reasoned-they
must create preconditions for ensuring the preservation of
cultural objects of state importance, as well as their
accessibility to the public; they must be proportionate to the
sought objective of universal importance and not restrict the
rights of the owner more than it is necessary in order to
attain the aforementioned objectives.
The state (its respective institutions or officials),
while enjoying, under the Constitution, the powers to control
how one follows the legal regime established in regard to
cultural objects of state importance, has the powers also to
control how the owners, to whom these objects belong by right
of ownership, and the state or municipal institutions that
possess these objects by right of trust or other (non-property)
right, follow this legal regime.
In some cases the owners (for example, natural persons)
may be unable to efficiently guarantee themselves that the
cultural objects of state importance, belonging to them by
right of ownership, will be preserved. It has to be emphasized
that the entire burden of preservation of the above-mentioned
cultural objects and taking care of them cannot be placed on
the owners. In this area one must find solutions ensuring a
balance between the respective duties of the owner and the
state.
One should mention also that the legislator must establish
such legal regulation, which would provide a possibility to
ensure both the accessibility to cultural objects of state
importance, belonging by right of ownership not to the state
but other persons, to the public (thus guaranteeing the freedom
of accessibility to valuable objects of culture as well) and
the protection of rights and legal interests of the owner, and
would not create preconditions for inflicting damage on the
aforementioned cultural objects. In the cases where cultural
objects of state importance belong by right of ownership not to
the state, but other persons, the entire burden of ensuring the
accessibility to the aforementioned objects of culture to the
public should not be placed on the owners, either. In this area
one must find solutions, guaranteeing the right balance between
the rights of the owner, inter alia the ownership rights and
the right to privacy, and the rights of other persons.
44. It has been held in this Constitutional Court ruling
that the material basis for performing the function of support
and protection of culture, that is transferred to
municipalities (to a certain extent), is comprised of the
property, needed for the performance of this function, which
belongs by right of ownership to municipalities and the
property which belongs by right of ownership to the state, but
is possessed by right of trust or other (non-property) right by
municipalities.
It should be noticed that the property, which belongs by
right of ownership to certain municipality, or the property,
which belongs by right of ownership to the state, but is
possessed by right of trust by a municipality, may be a
cultural object of state importance or may become (be
recognised) such cultural object in future. Such cultural
objects must be included in the approved by the law list of
cultural objects of state importance, and such cultural objects
may become subject to the legal regime established by the law
in regard to cultural objects of state importance, which may
include inter alia various prohibitions, obligations, other
restrictions or limitations concerning possession, use, and
disposal of these cultural objects.
45. It should be noted that in order to more efficiently
guarantee the function of support and protection of culture,
entrenched in Paragraph 2 of Article 42 of the Constitution,
while paying heed to the Constitution, cultural objects of
state importance that belong to municipalities by right of
ownership may be nationalised.
46. Is it to be held that the Constitution does not create
preconditions for transferring cultural objects of state
importance that belong to the state by right of ownership to
municipal ownership solely due to the reason that subordination
of a particular state institution (establishment or
organisation) contributing to the development of culture (inter
alia establishments or enterprises providing public cultural
services), is changed by replacing its administration from the
system of state administration to self-government, and, for
this reason, certain property is transferred to municipalities.
The indicated prohibition that originates from the
Constitution does not mean that in the specified cases (when
subordination of a particular state institution (establishment
or organisation) contributing to the development of culture
(inter alia establishments or enterprises providing public
cultural services) is changed by replacing its administration
from the system of state administration to self-government,
cultural objects of state importance may not be transferred to
municipalities to be possessed by right of trust or other
(non-property) right by establishing alongside such legal
regime (conditions and procedure of use) of this property which
would continue to ensure the interests of society, the welfare
of the Nation, and implementation of values entrenched in the
Constitution. In case the transfer of certain cultural objects
of state importance to municipalities for possession by right
of trust is related to the change of subordination of a certain
state institution (establishment or enterprise) contributing to
the development of culture (inter alia establishments or
enterprises providing public cultural services), when its
administration is transferred from the system of state
administration to self-government, one may and, in certain
cases must, establish also such legal regime of this property,
which would ensure that this property will continue to be used
for the performance of the function of support and protection
of culture, which is transferred to respective municipality (to
the established extent).
47. In the context of the case of the constitutional
justice at issue one has to note that the Constitution does not
tolerate such change of subordination of a state institution
(establishment or enterprise), inter alia institution
contributing to the development of culture, when its
administration is transferred from the system of state
administration to self-government, if the transfer of this
institution is only a cover for transferring the state-owned
property related to the aforementioned institution and/or
possessed by inter alia the said institution or its
founder-state institution (establishment or enterprise)-to be
possessed by the municipality.
III
1. The petitioner-the Vilnius Regional Administrative
Court-faced doubts concerning the compliance of the Law "On the
Procedure of Reorganisation and Liquidation of Establishments
of Culture" (wording of 13 June 1995) with the Constitution and
the compliance of the provisions of Resolution No. 1320 "On the
House of Signatories to the Act of Independence of Lithuania
and the House of Artists of Lithuania" of 28 November 1997 with
the Constitution and laws when he was investigating an
administrative case, in which the decision of the Vilnius City
Municipality to liquidate the budgetary establishment, the
House of Artists of Lithuania had been appealed against.
It is clear from the case material that the dispute
concerning the liquidation of the House of Artists of Lithuania
is related to possession, use and disposal of the building at
Didžioji St. 31, Vilnius, in which the seat of the House of
Artists of Lithuania is located.
2. When deciding, as to whether the Law "On the Procedure
of Reorganisation and Liquidation of Establishments of Culture"
is not in conflict with the Constitution, as well as whether
Items 1, 2.3, and 2.4 of Resolution No. 1320 "On the House of
Signatories to the Act of Independence of Lithuania and the
House of Artists of Lithuania" of 28 November 1997 are not in
conflict with the Constitution and laws, one has to find out
the evolution of the legal status of the House of Artists of
Lithuania, and how the possession, use and disposal of the
building at Didžioji St. 31, Vilnius, in which the seat of the
House of Artists of Lithuania is located, changed.
3. The building at Didžioji St. 31, Vilnius is a
historical Vilnius City Hall. Historical sources indicate that
in the place, where the aforementioned building is located from
the 16th century institutions of self-government of Vilnius
used to function. In 1845, the Russian power moved the
magistrate away from the city hall. The building was used for
other needs that were public as well.
4. In 1940, Lithuania was occupied, annexed and
incorporated into another state-the Soviet Union. The
occupation government nationalised and in other unlawful ways
nationalised a great many objects of private and public
ownership, inter alia buildings of public purpose, which were
declared state-owned property. The building of the Vilnius City
Hall, Didžioji St. 31, was also treated as state-owned
property. From 1940, the State Art Museum of Vilnius City was
located therein. Names of this museum used to change (in 1941
it was named as the Vilnius State Art Museum, in 1965 as the
Art Museum of the Lithuanian Soviet Socialist Republic, and in
1990 as the Art Museum of Lithuania). In 1995, the Art Museum
of Lithuania was commissioned with the task to move away from
this building.
It should be noted that even back in the Soviet times the
aforementioned building, under the name of the Former City Hall
(the then address: M. Gorkio St. 55), as a monument of
architecture and history was included in the list of monuments
of architecture of republic importance.
5. On 31 December 1971, the Minister of Culture issued
Order No. 458, whereby the House of Art Workers was founded
therein as from 1 January 1972. In the above-mentioned order
one indicated the seat of the House of Art Workers in Vilnius,
which was then M. Kutuzovo sq. 3/8 (at present: S. Daukanto sq.
3).
On 15 November 1988, the Minister of Culture issued Order
No. 502, whereby the House of Art Workers was renamed as the
House of Artists of the Lithuanian Soviet Socialist Republic.
On 11 March 1990, after the Supreme Council adopted the
Law "On the Name of the State and the Coat of Arms", names of
enterprises, establishments, and organisations were changed,
and the name of the House of Artists of the Lithuanian Soviet
Socialist Republic was among them-it became the House of
Artists of Lithuania.
6. On 11 March 1990, the Supreme Council adopted the Act
"On the Re-establishment of the Independent State of Lithuania"
whereby one restored the independent State of Lithuania. It was
inter alia established in this act that no constitution of any
other state shall be valid in Lithuania.
7. On 11 March 1990, the Supreme Council adopted the
Republic of Lithuania Law "On the Provisional Basic Law of the
Republic of Lithuania", by Article 2 of which it approved the
Provisional Basic Law of the Republic of Lithuania-the
provisional constitution of the restored independent State of
Lithuania. On the basis of the Provisional Basic Law one
started to create the national legal system.
In Chapters 7, 12, and 13 of the Provisional Basic Law the
system and principles of activity of bodies of state power of
areas, cities, settlements, and districts, as well as formation
of bodies of local self-government, were established.
8. When the Provisional Basic Law became effective, lots
of legal acts that had been adopted prior to the restoration of
the independent State of Lithuania remained effective as well.
One of them is the Law on the Fundamentals of Local
Self-Government, which was adopted on 12 February 1990. In this
law one inter alia established the principles of local
self-government (Article 2), as well as that the local council
of people's deputies in their territory unites and coordinates
activity of other municipal bodies, and directs the public,
economic and socio-cultural work (Paragraph 1 of Article 5),
that the economic basis of municipality is comprised of the
property of respective municipality (Paragraph 1 of Article
20), that the property of municipality is property that belongs
to it and on its behalf is owned and used by the appropriate
council or other legal or natural persons authorised by it
(Paragraph 1 of Article 21), that, as a rule, enterprises,
establishments and organisations of public education, culture
and of cinematography are inter alia assigned to the local
economy of municipality (Paragraph 2 of Article 22), that it is
only the municipality that designates protected areas, national
monuments of architecture, nature, history and culture of local
importance, organises registration of national monuments and
protects them (Item 13 of Article 24). By the aforementioned
law municipalities were divided into municipalities of lower
level (districts, settlements, rural districts and towns of the
area (county)) and municipalities of higher level (districts
(counties), and towns under the republic jurisdiction).
The above-mentioned law has been amended and supplemented,
however, the legal regulation that is subject to discussion in
essence remained the same.
9. By reforming and developing, on the basis of the
Provisional Basic Law, the system of local self-government, one
strengthened the material bases of local self-government. For
example, on 19 July 1990 the Government adopted Resolution No.
245 "On the Procedure of Transferring State-owned Objects to
Municipal Ownership". By this resolution the Government
resolved that it was reasonable to transfer to the ownership of
municipalities of higher level, while paying heed to the
general interests of the state and proposals by municipalities,
inter alia the following state-owned objects: the property of
enterprises, establishments and organisations of education,
culture and cinematography or other objects of social purpose,
the services, work or all the production of which is meant
solely for meeting social needs of production and residents of
the territory of that particular municipality of higher level
(Item 1).
10. Thus, already since the restoration of the independent
State of Lithuania municipalities (their institutions) enjoy
under the laws, inter alia the Law on the Fundamentals of Local
Self-Government, certain powers related to administration of
establishments that contribute to the development of culture.
These powers used to be expanded by legal acts.
11. In the context of the constitutional justice case at
issue one has to note that neither the House of Artists of
Lithuania (seat at S. Daukanto sq. 3, Vilnius), nor the Art
Museum of Lithuania (seat at Didžioji St. 31, Vilnius), were
transferred to the Vilnius City Municipality by legal acts of
that period. The House of Artists of Lithuania and the Art
Museum of Lithuania were state establishments funded from the
state budget. The buildings in which the seats of these
establishments were located were state-owned property.
12. By the referendum of the Nation, which took place on
25 October 1992, the Constitution of the Republic of Lithuania
was adopted. It became effective on 2 November 1992. Since then
the national legal system of Lithuania had to be created and
developed only on the basis of the Constitution.
The Constitution consolidated the concept of local
self-government, inter alia the fundamentals of functioning of
local self-government as a system of public power, as well as
the relations of local self-government and state
administration. It was mentioned that according to the
Constitution, municipalities are a subject of ownership rights.
It should be noted that a one-level system of local
self-government if consolidated in the Constitution.
13. By Order of the Ministry of Culture and Education No.
183 "On the Regulations of the House of Artists of Lithuania"
of 22 February 1993, the Regulations of the House of Artists of
Lithuania were approved.
Pursuant to these regulations the House of Artists of
Lithuania was a budgetary establishment, the founder of which
was the Ministry of Culture and Education (Item 1.1). In this
context one has to mention that by Item 5 of the Republic of
Lithuania Law "On Implementing the Law on the Government of the
Republic of Lithuania" of 31 May 1994 the Ministry of Culture
and Education was reorganised into the Ministry of Culture and
the Ministry of Education and Science; it was the Ministry of
Culture that became the founder of the House of Artists of
Lithuania.
It was established in the Regulations of the House of
Artists of Lithuania that were approved by Order of the
Ministry of Culture and Education No. 183 "On the Regulations
of the House of Artists of Lithuania" of 22 February 1993 that
the House of Artists of Lithuania is a legal person (Item 1.2),
its seat is located at S. Daukanto sq. 3/8, Vilnius (Item 1.3).
The tasks and functions of the House of Artists of Lithuania
were defined in Chapter 2 of the aforementioned regulations; it
was established inter alia that the basic task of the House of
Artists of Lithuania is to organise, upon the principles of
artistry and public spirit, events related to art, which would
be in line with the spirit of the time (Item 2.1). In the
aforementioned regulations one established also that the House
of Artists of Lithuania possesses, uses and disposes of the
state property transferred to it (Item 5.1) and that the House
of Artists of Lithuania may be liquidated upon the procedure
established by laws (Item 6.1).
14. It is to be held that even after the Regulations of
the House of Artists of Lithuania were approved by Order of the
Ministry of Culture and Education No. 183 "On the Regulations
of the House of Artists of Lithuania" of 22 February 1993, the
legal status of the House of Artists of Lithuania did not
change-they continued to be a state budgetary establishment,
and the property owned by it was state-owned property. The seat
of the House of Artists of Lithuania remained the same, S.
Daukanto sq. 3/8, Vilnius.
15. On 28 October 1993, the Seimas adopted the Law "On the
Procedure of Reorganisation and Liquidation of Establishments
of Culture", wherein one established that the establishments of
culture that are assigned to the higher level of regulation by
municipal councils may be reorganised or liquidated only upon
written consent of the Ministry of Culture and Education.
In this context it is to be noted that the notions
"establishments (enterprises) belonging to the sphere of
regulation by municipalities", the content of which was not
particularised nor revealed in any way, were used in the
Lithuanian legal acts of that time. It is clear from the
content of legal acts in which these notions are used that
assignment of certain establishments or enterprises to the
sphere of regulation by municipalities meant that
municipalities (their institutions), according to the
Constitution and laws, enjoyed authority to adopt certain
decisions concerning these establishments or enterprises.
It should be stressed that the specified in the legal acts
of that time assignment of establishments or enterprises to the
sphere of regulation by municipalities in itself did not mean
that the state-owned property possessed by respective
establishments or enterprises by right of trust was transferred
to municipal ownership.
16. According to Article 37 of the Code of Civil Procedure
of the Republic of Lithuania that was effective at that time
(wording of 7 July 1964), the existence legal persons could be
terminated by way of liquidation or reorganisation (merger,
division or incorporation); the existence of state
organisations, which were legal persons, used to be terminated
upon the decision of the bodies, by a decision of which they
could be founded (Paragraph 2).
17. According to the laws that were effective at that time
the House of Artists of Lithuania were not assigned to the
sphere of regulation by municipal councils. It was a state
budgetary establishment. Thus, the Law "On the Procedure of
Reorganisation and Liquidation of Establishments of Culture",
which was adopted by the Seimas on 28 October 1993, could not
be applied in regard to the reorganisation or liquidation of
the House of Artists of Lithuania; it could be reorganised or
liquidated, pursuant to the Civil Code and other laws, by its
founder-the then Ministry of Culture and Education (after the
reorganisation of this ministry-by the Ministry of Culture).
18. On 17 May 1994, the Seimas adopted the Law "On
Amending and Supplementing the Civil Code of the Republic of
Lithuania", by Article 55 whereof Article 95 of the Civil Code
(wording of 30 November 1983) was inter alia supplemented with
the provisions, in which the notion of public ownership is used
expressis verbis. According to Paragraph 3 of Article 95 of the
Civil Code (wording of 17 May 1994) public property comprised
state-owned property and municipal property.
19. At that time the legal regulation of relations of
local self-government underwent changes as well. In this
context one has to note that on 7 July 1994 the Seimas adopted
the Republic of Lithuania Law on Self-Government. According to
Article 31 of this law, the latter had to become effective on
the first day after elections of municipal councils. These
elections took place on 25 March 1995, thus the Law on Local
Self-Government became effective on 26 March 1995. After coming
into effect of the Law on Local Self-Government, the Law on the
Fundamentals of Local Self-Government of 12 February 1990 (with
any subsequent amendments and supplements) became no longer
valid.
In the Law on Local Self-Government one consolidated a
one-level system of local self-government. Local
self-government was treated as the right and actual power of
the institutions of a local government which is elected by the
residents of an administrative unit of the territory of the
Republic of Lithuania, to freely and independently on their own
responsibility regulate and manage public affairs and meet the
needs of local residents according to the Constitution and laws
(Paragraph 1 of Article 1). In this law one inter alia
consolidated such principles of local self-government like
co-ordination of interests of municipality and the state,
lawfulness and social justice, and economic independency
(Article 2).
It was established in this law that the competence of
self-government institutions shall be autonomous and that
delegated by the state (Paragraph 1 of Article 14), as well as
that the state functions shall be delegated to local
authorities by this law and other laws (Paragraph 3 of Article
14). When implementing the independent competence, municipal
councils enjoyed powers inter alia to approve the general sum
of allotments and wage funds for institutions and organisations
which receive financing from the municipal budget (Item 13 of
Article 15) and to adopt decisions on the establishment,
reorganisation and liquidation of establishments, enterprises,
and organisations maintained from the municipal budget funds
(Item 16 of Article 15).
It was established in the Law on Local Self-Government
that the basis of the economic activity of local authority
shall be municipal property-the property, which belongs to the
municipality by right of ownership, the functions of owner
whereof shall be implemented by the council according to laws
(Paragraphs 1 and 2 of Article 21). The objects of municipal
ownership had to be established by laws (Paragraph 3 of Article
21); the right of ownership of could be acquired: by
transferring state-owned objects to municipal ownership in
accordance with the procedure established by laws; in this
case, there might be provisions, established by laws, for the
limitation of the disposal of such objects (Item 1 of Paragraph
4 of Article 21); by creating new objects of ownership (Item 2
of Paragraph 4 of Article 21); by concluding transactions or in
other cases provided for in laws (Item 3 of Paragraph 4 of
Article 21).
By the aforementioned law inter alia the function of
taking care of development of the cultural level of residents
and promotion of general and ethnic culture (Item 5 of
Paragraph 4 of Article 17) was included in the competence of
the mayor of municipality. To the competence of municipal
council inter alia the function of control over the compliance
with the requirements for the protection of landscape as well
as architectural and cultural monuments was included (Item 6 of
Paragraph 1 of Article 18).
The Law on Local Self-Government, which was adopted by the
Seimas on 7 July 1994, was amended and supplemented more than
once, however, the legal regulation that is subject to
discussion remained basically unchanged until the Republic of
Lithuania Law on Amending the Law on Local Self-Government,
which was adopted by the Seimas on 12 October 2000 and by
Article 1 whereof the Law on Local Self-Government (wording of
7 July 1994 with subsequent amendments and supplements) was set
forth in a new wording, became effective.
20. The material basis of local self-government was
strengthened also by the laws of that time.
In this context one has to mention the Law "On Assignment
and Transfer of Part of State Property to Municipal Ownership",
which was adopted by the Seimas on 20 December 1994 and became
effective on 4 January 1995. By this law a part of state-owned
property was assigned to ownership of "municipalities of higher
level" to carry out the functions established by law (Article
1); this state property had to be transferred to municipalities
without compensation or consideration of the place of location
thereof within the territory administered by one or another
municipality (Paragraph 1 of Article 2). In the context of the
constitutional justice case at issue it should be stated that
by the aforementioned law one assigned to municipal ownership
the state-owned property (basic equipment, material reserves,
monetary funds, etc.), which was possessed inter alia by the
following establishments of these municipalities: libraries
(Item 3 of Paragraph 2 of Article 3); museums and galleries
(Item 4 of Paragraph 2 of Article 3); establishments (clubs)
for leisure activities (clubs, houses and centres of culture,
houses of sports) (Item 5 of Paragraph 2 of Article 3);
theatres and studios for theatrical performances, performances
of choirs, and musical performances (Item 6 of Paragraph 2 of
Article 3). Moreover, pursuant to this law the facilities for
social purpose and other property, inter alia buildings, in
which institutions of self-government are located, or parts of
such buildings and separate premises that are necessary to
perform the functions of local self-government and which were
in the balance of municipalities were assigned to municipal
ownership (Item 2 of Paragraph 3 of Article 3). The Government
had to transfer the property, which was assigned to municipal
ownership, individually to every municipality through the
persons authorised by a Government resolution (Paragraph 1 of
Article 4); the right of ownership of municipality to the
transferred real property had to come into effect from the
legal registration thereof (Article 5).
21. On 20 December 1994, the Seimas adopted the Law "On
the Implementation of the Republic of Lithuania Law 'On
Assignment and Transfer of Part of State Property to Municipal
Ownership'", which became effective on 4 January 1995. In this
law it was established inter alia that according to the Law "On
Assignment and Transfer of Part of State Property to Municipal
Ownership" the property that was assigned to municipal
ownership and inventoried must be transferred to municipalities
upon the established procedure by 20 March 1995 (Article 1),
and that municipalities have to carry out the legal
registration of the accepted property by 24 March 1995
(Article2).
22. It has to be mentioned that no other law regulating
the transfer of state-owned property to municipalities existed
at that time.
23. By Item 1.1. of Government Resolution No. 199 "On the
Procedure of Transfer of Part of State Property to Municipal
Ownership" of 7 February 1995 one approved the list of persons
who were authorised by the Government to transfer to
municipalities the state-owned property, which was assigned
under the Law "On Assignment and Transfer of Part of State
Property to Municipal Ownership" to municipal ownership, by
Item 1.2 thereof one comprised the governmental commission for
the disputes of municipalities and persons authorised by the
Government concerning the transfer of part of state-owned
property to municipal ownership, and by Item 1.3 thereof one
approved the procedure of transfer of the state-owned property,
which was assigned to municipal ownership under the Law "On
Assignment and Transfer of Part of State Property to Municipal
Ownership" to municipalities.
24. In the context of the constitutional justice case at
issue it has to be stressed that the property of the House of
Artists of Lithuania (including the building at Daukanto sq. 3,
Vilnius) at that time did not constitute property possessed by
any municipal establishment, it was not included in the balance
of municipalities as an object for social purpose or other
property. It was mentioned that at that time the House of
Artists of Lithuania was a state budgetary institution (the
founder of which was the Ministry of Culture), and the property
possessed by it was state-owned property. Thus, the property
possessed by the House of Artists of Lithuania could not be
assigned and transferred to municipal ownership under the Law
"On Assignment and Transfer of Part of State Property to
Municipal Ownership" that was adopted on 20 December 1994,
either.
25. It should be noted that the Law "On Assignment and
Transfer of Part of State Property to Municipal Ownership" and
the Law "On the Implementation of the Republic of Lithuania Law
'On Assignment and Transfer of Part of State Property to
Municipal Ownership'" were changed and amended respectively by
the Law "On Amending and Supplementing the Republic of
Lithuania Law 'On Assignment and Transfer of Part of State
Property to Municipal Ownership'", which was adopted by the
Seimas on 5 July 1995, and the Republic of Lithuania Law "On
Amending and Supplementing the Republic of Lithuania Law 'On
the Implementation of the Republic of Lithuania Law "On
Assignment and Transfer of Part of State Property to Municipal
Ownership"'", which was adopted by the Seimas on 5 July 1995.
It should be mentioned also that by Item 7 of Government
Resolution No. 1251 "On the Procedure of Transferring of Part
of State Property to Municipal Ownership" of 20 September 1995,
Government Resolution No. 199 "On the Procedure of Transferring
of Part of State Property to Municipal Ownership" of 7 February
1995 was recognised as no longer effective. By Item 1.1 of
Government Resolution No. 1251 "On the Procedure of
Transferring of Part of State Property to Municipal Ownership"
of 20 September 1995 one confirmed the list of persons who were
authorised by the Government of the Republic of Lithuania to
transfer to municipalities the state-owned property assigned to
municipalities under the Republic of Lithuania Law "On
Assignment and Transfer of Part of State Property to Municipal
Ownership", and by Item 1.2 thereof one approved the procedure
of transferring the state-owned property to municipalities, to
which is was assigned under the Republic of Lithuania Law "On
Assignment and Transfer of Part of State Property to Municipal
Ownership". Government Resolution No. 1251 "On the Procedure of
Transferring of Part of State Property to Municipal Ownership"
of 20 September 1995 was amended by Government Resolution No.
899 "On Partial Amendment of Government of the Republic of
Lithuania Resolution No. 1251 'On the Procedure of Transferring
of Part of State Property to Municipal Ownership' of 20
September 1995" of 29 July 1996 and by Government Resolution
No. 261 "On Partial Amendment of Government of the Republic of
Lithuania Resolution No. 1251 'On the Procedure of Transferring
of Part of State Property to Municipal Ownership' of 20
September 1995" of 23 March 1997.
It should be held that after amending and changing the
aforementioned laws and Government resolutions these legal acts
could not be applied in regard to the House of Artists of
Lithuania as a state establishment, the founder of which is the
Ministry of Culture, and, according to them, the property
possessed by the House of Artists of Lithuania could not be
assigned and transferred to municipal ownership, it remained
state-owned property.
26. While seeking to implement inter alia the provisions
of Paragraph 2of Article 42 of the Constitution, laws and other
legal acts were adopted and amended at that time, thereby one
regulated relations linked to the protection of cultural
monuments and valuable objects.
In this context one has to mention that on 22 December
1994 the Seimas adopted the Law on Protection of Immovable
Culturally Valuable Objects, which became effective on 1
February 1995. In this law one indicated its purpose-to
guarantee the protection and increase of culturally valuable
objects, as well as their transfer to the future generations
(Paragraph 1 of Article 2). The established and assessed
immovable values of culture had to be entered into the Republic
of Lithuania Registry of Values of Culture (Paragraph 4 of
Article 8). Municipalities were permitted to have local
registries of immovable culturally valuable objects, about
which they had to inform the Department of Cultural Heritage
(Paragraph 6 of Article 8). It was established in the
aforementioned law also that the Seimas, upon the submission of
the Government, approves a list of historical, archaeological
and cultural objects of state importance (Paragraph 1 of
Article 10), that upon the proposal of the Department of
Cultural Heritage and approval of the State Commission for the
Protection of Cultural heritage, and upon the submission of the
Minister of Culture, the Government declares the most
significant immovable culturally valuable objects as cultural
monuments (Paragraph 2 of Article 10).
27. In this context it should also be noted that on 24
January 1995 the Seimas adopted the Republic of Lithuania Law
on the Implementation of the Law on Protection of Immovable
Culturally Valuable Objects, which became effective on 27
January 1995. In Article 9 of this law it was inter alia
established that the objects that are included into the list of
historical and cultural monuments of republican and local
importance, the List of Newly Established Historical and
Cultural Monuments and the provisional registry of historical
and cultural monuments must be protected as immovable
culturally valuable objects until a decision is passed
concerning their inclusion into the Republic of Lithuania
Registry of Culturally Valuable Objects.
28. It has been mentioned that during the Soviet regime
the so-called Former City Hall was included in the list of
monuments of architecture of republican importance as a
monument of architecture and history. It was never excluded
from the list.
It is to be held that during the period of validity of the
Law on Protection of Immovable Culturally Valuable Objects and
the Law on the Implementation of the Law on Protection of
Immovable Culturally Valuable Objects the building of the City
Hall was considered to be a monument of architecture and
history.
In this context one should mention that by Order No. 66
"On Inclusion of Objects into the Registry" of the Department
of protection of Cultural Values at the Ministry of Culture of
8 July 1996 one included inter alia the City Hall, address
Didžioji St. 31, Vilnius, in the List of Buildings of the
Republic of Lithuania Registry of Immovable Culturally Valuable
Objects and indicated the architectural and historical value of
the building.
One should mention also that by Government Resolution No.
612 "On Declaring the Immovable Culturally Valuable Objects as
Monuments of Culture" of 19 May 1998 the Vilnius City Hall was
declared as a cultural monument. By the same Government
resolution one declared as a cultural monument the old town of
Vilnius (where the aforementioned building is located) as well.
29. It was mentioned that on 28 October 1993 the Seimas
adopted the Law "On the Procedure of Reorganisation and
Liquidation of Establishments of Culture". This law was amended
by the Republic of Lithuania Law "On Amending the Republic of
Lithuania Law 'On the Procedure of Reorganisation and
Liquidation of Establishments of Culture'", which was adopted
by the Seimas on 13 June 1995 and became effective on 28 June
1995.
The Law "On the Procedure of Reorganisation and
Liquidation of Establishments of Culture" (wording of 13 June
1995) was set forth as follows: "To set down that the
establishments of culture that belong to the area of regulation
by municipal councils may be reorganised or liquidated only
upon written consent of the Ministry of Culture of the Republic
of Lithuania".
30. It is to be held that at the time of entry into effect
of the Law "On Amending the Republic of Lithuania Law 'On the
Procedure of Reorganisation and Liquidation of Establishments
of Culture'" the House of Artists of Lithuania was a state
budgetary establishment (the founder of which was the Ministry
of Culture), the property possessed by it was state-owned
property, this establishment was not assigned to the area of
regulation by municipal councils.
It means that at that time the Law "On the Procedure of
Reorganisation and Liquidation of Establishments of Culture"
(wording of 13 June 1995) could not be applied in regard to the
House of Artists of Lithuania.
31. During the period which is subject to discussion, as
already mentioned, the building at Didžioji St. 31, was the
seat of the Art Museum of Lithuania, and the seat of the House
of Artists of Lithuania was located at S. Daukanto sq. 3,
Vilnius.
On 21 June 1995, the Government adopted Resolution No. 868
"On Placing the Office of the President of the Republic of
Lithuania in the 19th Century Representative Palace Ensemble at
S. Daukanto sq. 3/8, Totorių St. 28, and Universiteto St. 6,
Vilnius". By this Government resolution one decided inter alia:
to transfer the 19th century representative palace ensemble,
located at S. Daukanto sq. 3/8, Totorių St. 28, and
Universiteto St. 6, Vilnius, with all the buildings,
constructions and territory belonging to it from the balance of
the House of Artists of Lithuania to the balance of the Office
of the President of the Republic of Lithuania (Item 1); to
transfer the architectural monument of republican
importance-the ensemble of Chodkevičiai palace (Didžioji St. 4,
Bokšto St. 5, Vilnius) to the balance of the Art Museum of
Lithuania (first section of Item 2); to transfer the building
of the Vilnius City Hall (Didžioji St. 31, Vilnius) from the
balance of the Art Museum of Lithuania to the balance of the
House of Artists of Lithuania. It was established also in the
above-mentioned Government resolution that the Vilnius City
Hall, which is intended for the performance of functions of the
House of Artists of Lithuania, is used also for the
representative functions of the State of Lithuania and the
Vilnius City Municipality (Item 3), that the Art Museum of
Lithuania must move out from the building of the Vilnius City
Hall (Didžioji St. 31, Vilnius) by 30 December 1995 (Item 5.3),
and the House of Artists of Lithuania must move out from the
buildings at S. Daukanto sq. 3/8, Totorių St. 28, and
Universiteto St. 6, Vilnius by 30 December 1995 (Item 6).
32. It has been mentioned that during the period which is
subject to discussion the House of Artists of Lithuania was a
state budgetary establishment.
In this context one should note that on 5 December 1995
the Seimas adopted the Republic of Lithuania Law on Budgetary
Establishments, which became effective on 1 January 1996. In
Article 1 of this law one indicated the purpose thereof is to
establish "the foundation, reorganisation, liquidation,
possession, and funding of establishments that are fully or
partially financed from the budget of the Republic of Lithuania
and municipal budgets, as well as other essential moments
related to their activity". According to Article 7 of the
aforementioned law, budgetary establishments are financed from
the state budget or municipal budgets, depending on who is the
founder. The budgetary establishment is a state or municipal
institution, which is founded upon the procedure established by
laws, fully or partially financed from the budget and referred
to as such in the founding statement and rules (Article 2); the
legal basis for founding budgetary establishments that are
financed from the budget of the State of Lithuania is the
founding statement which may be adopted by the Seimas, the
Government, ministries, governors of counties or other state
institutions (Paragraph 1 of Article 3); the founding
statements of budgetary establishments that are financed from
municipal budgets are adopted by local municipal councils upon
the procedure established by laws (Paragraph 2 of Article 3);
budgetary establishments are reorganised or liquidated by their
founders upon the procedure established by the government,
unless laws provide otherwise (Article 4); budgetary
establishments are registered, re-registered and excluded from
the register upon the procedure established by laws (Article
13).
On 5 December 1995, the Seimas also adopted the Republic
of Lithuania Law on the Implementation of the Law on Budgetary
Establishments which became effective on 22 December 1995. In
this law one established inter alia that the Government
approves by 1 March 1996 the Procedure of Reorganisation and
Liquidation of Budgetary Establishments and Write-off as well
as Sale of Their Material Values (Item 1), as well as
guaranteed that by 1 July 1996 ministries, other state
institutions and executive institutions of
municipalities-founders of budgetary
establishments-particularise, according to the Law on Budgetary
Establishments, the regulations of their subordinate budgetary
establishments (Item 2).
After coming into effect of the Law on Budgetary
Institution and Law on the Implementation of the Law on
Budgetary Establishments, decisions related to the foundation,
reorganisation and liquidation, possession, financing and their
other activity might be adopted pursuant to these laws, if no
other laws regulated these relations in a different manner.
33. On 7 February 1996, the Government adopted Resolution
No. 227 "On Approval of the General Regulations of
Establishments and Organisations of Culture that are Maintained
from the Budget of the State of Lithuania and Municipal
Budgets", which became effective on 15 February 1996 and by
which one approved the General Regulations of Establishments
and Organisations of Culture that are maintained from the
budget of the State of Lithuania and municipal budgets (Item
1), as well as established that founders of all the
establishments of culture that are maintained from the budget
of the State of Lithuania and municipal budgets, by 1 July 1996
coordinate the regulations of establishments of culture with
the General Regulations of Establishments and Organisations of
Culture that are maintained from the budget of the State of
Lithuania and municipal budgets (Item 2).
It is inter alia established in the General Regulations of
Establishments and Organisations of Culture that are Maintained
from the Budget of the State of Lithuania and Municipal
Budgets, which were approved by Government Resolution No. 227
"On Approval of the General Regulations of Establishments and
Organisations of Culture that are Maintained from the Budget of
the State of Lithuania and Municipal Budgets" of 7 February
1996 that: they regulate the founding, registration, financing,
possession, reorganisation and liquidation of establishments
and organisations of culture which are partially or fully
maintained from the budget of the State of Lithuania and
municipal budgets and the basic activity of which is creation,
spreading and protection of culture, as well as the rights and
duties of cultural establishments (Item 1); cultural
establishments are divided into national, republican, regional
and local (municipal) ones (Item 5); every cultural
establishment, irrespective of the fact whether it has the
status of a legal person, acts according to the regulations
that are approved by the founder (first section of Item 6); the
regulations of national cultural establishments are approved by
the Government (second section of Item 6); national cultural
establishments are founded by the Ministry of Culture and a
decision concerning the founding of a national cultural
establishment or reorganisation of a cultural establishment
into a national cultural establishment is adopted by the
Government upon a submission of the Ministry of Culture (Item
7.1); republican cultural establishments are founded by the
Ministry of Culture or other institutions of state
administration (Item 7.2); regional cultural establishments are
founded by county governors or the Ministry of Culture (Item
7.3); local (municipal) cultural establishments are founded by
municipalities upon the procedure established by laws (Item
7.4); it is considered that a cultural establishment has been
founded, after the founder adopts a decision on its founding
and approves the regulations of the establishment (Item 22);
cultural establishments are registered by the Ministry of
Culture upon the procedure established by the Regulations of
the Registry of Cultural Establishments that are approved by
the Government (Item 23).
In the abovementioned general regulations one established
that a cultural establishment may be reorganised or liquidated
only upon receipt of permission of the Ministry of Culture
(first section of Item 9), and that national cultural
establishment is reorganised by a Government decision upon
proposal of the Ministry of Culture (Item 10).
In the General Regulations of Cultural Establishments and
Organisations that are Maintained from the Budget of the State
of Lithuania and Municipal Budgets, which were approved by
Government Resolution No. 227 "On Approval of the General
Regulations of Establishments and Organisations of Culture that
are Maintained from the Budget of the State of Lithuania and
Municipal Budgets" of 7 February 1996, reorganisation of a
cultural establishment was defined as incorporation, division
or merger, as well as change of type of activity and aims,
which is related to transformation of organisation of work of
the cultural establishment (second section of Item 9). In order
to reorganise a cultural establishment the founder of the
cultural establishment had to prepare a project of its
reorganisation, submit it to the Ministry of Culture one month
prior to the date of making a decision on reorganisation of the
cultural establishment and get its permission; in the project
of reorganisation one had to include the name and address of
the establishment, purpose and way of reorganisation, time and
basis of reorganisation, property assessment, takeover of
obligations and their terms, basic tasks and functions of the
establishment, which is being reorganised or is already
reorganised; together with the project of reorganisation one
had to submit draft regulations of the cultural establishment,
which would be effective after the reorganisation (first
section of Item 11). The Ministry of Culture had to adopt a
decision on reorganisation of the establishment within 2 weeks
from the date of receipt of the application (first paragraph of
Item 12); the founder had the right to appeal against the
refusal of the Ministry of Culture to permit the reorganisation
of the cultural establishment (second section of Item 12).
In the General Regulations of Cultural Establishments and
Organisations that are Maintained from the Budget of the State
of Lithuania and Municipal Budgets, which were approved by
Government Resolution No. 227 "On Approval of the General
Regulations of Establishments and Organisations of Culture that
are Maintained from the Budget of the State of Lithuania and
Municipal Budgets" of 7 February 1996, liquidation of a
cultural establishment was defined as termination of activity
of the establishment (Item 13); in order to liquidate a
cultural establishment the founder of the cultural
establishment had to prepare a project of its liquidation,
submit it to the Ministry of Culture 1.5 months prior to the
date of making decision on liquidation of the cultural
establishment and get its permission to liquidate the cultural
establishment; in the project of liquidation one had to include
the name and address of the establishment, time and basis of
the liquidation, as well as property assessment (first section
of Item 14); the Ministry of Culture had to make a decision on
liquidation of the cultural establishment within a month from
the date of receipt of an application; if no consent to the
liquidation of the cultural establishment was given, the
applicant had to be informed about the reasons of this decision
(Item 15); the founder had the right to appeal against the
refusal of the Ministry of Culture to permit the liquidation of
the cultural establishment (Item 15).
34. The House of Artists of Lithuania is a cultural
establishment. It was mentioned that the founder of the House
of Artists of Lithuania was the Ministry of Culture.
It has been mentioned that by Order of the Ministry of
Culture and Education No. 183 "On the Regulations of the House
of Artists of Lithuania" of 22 February 1993 one approved the
Regulations of the House of Artists of Lithuania. According to
Government Resolution No. 227 "On Approval of the General
Regulations of Establishments and Organisations of Culture that
are Maintained from the Budget of the State of Lithuania and
Municipal Budgets" of 7 February 1996, the founders of all
cultural establishments that were maintained from the budget of
the State of Lithuania and municipal budgets (thus, the House
of Artists of Lithuania included) had to coordinate by 1 July
1996 the regulations of respective cultural establishments with
the General Regulations of Establishments and Organisations of
Culture that are Maintained from the Budget of the State of
Lithuania and Municipal Budgets.
By Order of the Ministry of Culture No. 186 "On the House
of Artists of Lithuania" of 15 May 1996 one recognised Order of
the Ministry of Culture and Education No. 183 "On the
Regulations of the House of Artists of Lithuania" of 22
February 1993 as no longer effective and approved new
regulations of the House of Artists of Lithuania.
According to the new Regulations of the House of Artists
of Lithuania the House of Artists of Lithuania is a budgetary
establishment, the founder of which is the Ministry of Culture
(Item 2), its seat is located in Didžioji St. 31, Vilnius (Item
3), its financed from the budget of the State of Lithuania
(item 8). The following is established in these regulations:
the basic objective of the House of Artists of Lithuania is to
popularize art and to organise high quality events (Item 6); in
order to achieve this objective the House of Artists of
Lithuania inter alia organises various cultural events,
popularize the newest and most important achievements, forums,
conferences on creative practise and theory of art, propagates
art of Lithuania and other countries, develops international
relations between artists, organises meetings of Lithuanian
artists with fellow-countrymen residing abroad (Item 7); the
Council of the House of Artists of Lithuania which comprises 7
members and is made in equal parts of members elected at the
general meeting of the staff and representatives appointed by
the administration, and the founder of the House of Artists
appoints its representative to the council, participates in the
possession of the House of Artist of Lithuania with an advisory
vote (Item 15).
35. It is to be held that according to the General
Regulations of Cultural Establishments and Organisations that
are Maintained from the Budget of the State of Lithuania and
Municipal Budgets, which were approved by Government Resolution
No. 227 "On Approval of the General Regulations of
Establishments and Organisations of Culture that are Maintained
from the Budget of the State of Lithuania and Municipal
Budgets" of 7 February 1996 and new Regulations of the House of
Artists of Lithuania that were approved by Order of the
Ministry of Culture No. 186 "On the House of Artists of
Lithuania" of 15 May 1996, the House of Artists of Lithuania
was considered to be a republican cultural establishment. It
could be reorganised or liquidated only its founder, the
Ministry of Culture. Property possessed by the House of Artists
of Lithuania, including the building at Didžioji St. 31,
Vilnius, was state-owned property.
36. When implementing the Republic of Lithuania Law on the
Implementation of the Law on Budgetary Establishments,
according to which the Government had to inter alia approve the
Procedure of Reorganisation and Liquidation of Budgetary
Establishments, the Government on 10 May 1996 adopted
Resolution No. 554 "On the Approval of the Procedure of
Reorganisation and Liquidation of Budgetary Establishments",
which became effective on 18 May 1996 and by which one approved
the Procedure of Reorganisation and Liquidation of Budgetary
Establishments.
It is established in Item 1 of the aforementioned
procedure that it is applicable to all state and municipal
budgetary institutions, and in Item 5 that budgetary
establishments are reorganised or liquidated upon the decision
of the founders, if the laws do not provide differently.
The following was established in the Procedure of
Reorganisation and Liquidation of Budgetary Establishments that
was approved by Government Resolution No. 554 "On the Approval
of the Procedure of Reorganisation and Liquidation of Budgetary
Establishments" of 10 May 1996: budgetary establishments cease
to exist by way of reorganisation (when they are joined by
merger, or divided, or incorporated into other establishments,
etc.)(Item 3); in the cases established by law the founder of
the budgetary establishment, who intends to reorganise the
establishment, has to prepare the project of reorganisation and
submit it to the respective ministry, county governor or other
state institution (Item 6); in the project of reorganisation of
budgetary establishment one must indicate the name and address
of the establishment, the purpose and way of reorganisation,
the phases and time of reorganisation, its basis, property
assessment, the procedure of property assessment and inventory,
property distribution, as well as accepting for storage of
book-keeping and financial accountability documents, takeover
of obligations and their terms, the basic tasks and functions
of the reorganised establishment as well as its structure; the
draft regulations of the cultural establishment which would be
effective after the reorganisation must be attached to this
project (Item 7); the deadline for submitting the project of
reorganisation of budgetary establishments is set by a
respective ministry, county governor or other state institution
(Item 7).
It is established in the Procedure of Reorganisation and
Liquidation of Budgetary Establishments that was approved by
Government Resolution No. 554 "On the Approval of the Procedure
of Reorganisation and Liquidation of Budgetary Establishments"
of 10 May 1996 that budgetary establishments are liquidated
when their activity is fully terminated (Item 4); in order to
liquidate the establishment the founder of the budgetary
establishment must prepare the project of its liquidation,
submit it in the cases established by law to a respective
ministry, county administrator or other state institution and
get their permission; in the project of liquidation one must
indicate the name and address of the establishment, basis and
term of liquidation, property assessment, the procedure of
property assessment and inventory, property distribution, as
well as accepting for storage of book-keeping and financial
accountability documents (Item 10); the deadline for submitting
the project of liquidation of budgetary establishments is set
by a respective ministry, county governor or other state
institution (Item 10); a liquidation commission is set up in
order to liquidate a budgetary establishment, it is formed and
its chairman is appointed by the founder (Item 11); the
budgetary establishment acquires the status of the
establishment under liquidation as from the date of making a
decision to liquidate it; one informs about the liquidation of
the establishment in the most popular dailies or other means of
public information (Item 11).
In Item 15 of the aforementioned procedure one establishes
the procedure, upon which decisions concerning the change of
subordination of budgetary establishments are made. In case an
establishment is transferred from the sphere of regulation by
one ministry, other state institution and county to the sphere
of regulation by another ministry, state institution and
county, a decision on the change of its subordination is made
by the Government upon the submission of the institutions
concerned, which is coordinated with the Ministry of Finance
(Item 15.1); in case a budgetary establishment is transferred
from the sphere of regulation of the municipality of a certain
area or city to the sphere of regulation of the municipality of
another area or city, in order to perform the delegated
functions of the state, a decision concerning the change of its
subordination is made by the Government upon the submission of
municipalities of cities or areas, which is coordinated with
the Ministry of Finance (Item 15.2.1); or in order to perform
independent functions that are transferred to municipalities, a
decision concerning the change of its subordination is made
upon the procedure established by laws (Item 15.2.2); in case a
budgetary establishment is transferred from the sphere of
regulation by the state to the sphere of regulation by a
municipality and from the sphere of regulation by a
municipality to the sphere of regulation by the state, a
decision concerning the change of its subordination is made
upon the procedure established by laws (Item 15.3).
37. It has to be noted that in the Law on Budgetary
Establishments there was no provision regulating the change of
subordination of budgetary establishments the purpose of which
is to take care of development of culture (inter alia
establishments that provide services of public culture) from
the sphere of regulation by the state to the sphere of
regulation by a municipality and from the sphere of regulation
by a municipality to the sphere of regulation by the state.
Other laws that were effective at that time contained no
provisions regulating this issue, too.
Meanwhile, the Procedure of Reorganisation and Liquidation
of Budgetary Establishments, which was approved by Government
Resolution No. 554 "On the Approval of the Procedure of
Reorganisation and Liquidation of Budgetary Establishments" of
10 May 1996, contained separate chapters "Reorganisation and
Liquidation of Establishments" and "Change of Subordination of
Establishments".
It means that in the Procedure of Reorganisation and
Liquidation of Budgetary Establishments, which was approved by
Government Resolution No. 554 "On the Approval of the Procedure
of Reorganisation and Liquidation of Budgetary Establishments"
of 10 May 1996, the change of subordination of budgetary
establishments, inter alia the change of their subordination
from the sphere of regulation by the state to the sphere of
regulation by a municipality and from the sphere of regulation
by a municipality to the sphere of regulation by the state is
considered to be an independent legal institute, which is not
covered by the institutes of reorganisation and liquidation of
budgetary establishments.
38. The Constitution establishes the constitutional
principle of a state under the rule of law. The essence of this
principle is the rule of law. The constitutional imperative of
the rule of law means that the freedom of state power is
limited by law, to which all the entities of legal relations,
including the law-making entities, must obey (Constitutional
Court ruling of 13 December 2004).
The Government is bound by its own resolutions
(Constitutional Court ruling of 28 June 2001). The Government
must follow the requirements set therein until the Government
resolution is amended or annulled.
39. Thus, the provision of Item 15.3 of the Procedure of
Reorganisation and Liquidation of Budgetary Establishments,
which was approved by Government Resolution No. 554 "On the
Approval of the Procedure of Reorganisation and Liquidation of
Budgetary Establishments" of 10 May 1996, that in case a
budgetary establishment is transferred from the sphere of
regulation by the state to the sphere of regulation by a
municipality (as well as from the sphere of regulation by a
municipality to the sphere of regulation by the state), a
decision concerning the change of its subordination is made
upon the procedure established by laws, means that until a
respective law is adopted, no state institution, including the
Government, may adopt a decision to transfer any budgetary
establishment from the sphere of regulation by the state to the
sphere of regulation by a municipality (as well as from the
sphere of regulation by a municipality to the sphere of
regulation by the state).
In the context of the case of the constitutional justice
at issue one should note that at the time when Government
Resolution No. 1320 "On the House of Signatories to the Act of
Independence of Lithuania and the House of Artists of
Lithuania" of 28 November 1997, the compliance of Item 2.4 of
which with the Constitution is disputed by the petitioner, was
adopted and became effective, no law regulating the transfer of
budgetary establishments from the sphere of regulation by the
state to the sphere of regulation by a municipality was
adopted.
40. On 10 March 1997, the Council of Vilnius City adopted
Decision No. 225 "On the Return of Vilnius City Hall", whereby
it was decided to request that the Government return the
building of the Vilnius City Hall (Didžioji St. 31) to the
Vilnius City Municipality.
41. By Letter No. 09-01-414 of 13 March 1997 the Mayor of
Vilnius City addressed the Government with a request to discuss
a possibility to return the historical Vilnius City Hall
(Didžioji St. 31) to the Vilnius City Municipality. The request
was based on the fact that from the date of construction of the
Vilnius City Hall till the 19th century it was the seat of the
Magistrate, and that the Vilnius City Municipality "is, from
the historical point of view, the true and only heir to the
Vilnius City Hall". It is especially stressed in the latter
that the Vilnius City Hall will retain the function of an
establishment meant for cultural purposes.
42. It is to be held that the Council of Vilnius City and
the Mayor of Vilnius City addressed the Government with the
request to transfer to the Vilnius City Municipality not the
House of Artists of Lithuania-a cultural establishment financed
from the budget of the state-but the building at Didžioji St.
31, Vilnius, in which the seat of the above-mentioned state
establishment is located.
43. It has been mentioned that on 8 November 1997 the
Government adopted Resolution No. 1320 "On the House of
Signatories to the Act of Independence of Lithuania and the
House of Artists of Lithuania", by which inter alia the
Ministry of Culture was commissioned to transfer by 1 January
1998 the functions of the founder of the House of Artists of
Lithuania to the Vilnius City Municipality (Item 1), and the
Vilnius City Municipality was commissioned by 1 January 1998 to
take over from the House of Artists of Lithuania the building
at Didžioji St. 31, Vilnius, for possession and use by right of
trust as state-owned property (Item 2.3), and while discharging
the functions of the founder of the House of Artists of
Lithuania, not to change the purpose of the House, type of its
activity nor its status, and to document this in a trilateral
agreement on cooperation between the Vilnius City Board, the
Ministry of Culture and the House of Artists of Lithuania (Item
2.4). This Government resolution became effective on 6 December
1997.
44. The provision of Item 1 of Government Resolution No.
1320 "On the House of Signatories to the Act of Independence of
Lithuania and the House of Artists of Lithuania" of 28 November
1997 that the Ministry of Culture has to transfer by 1 January
1998 the functions of the founder of the House of Artists of
Lithuania to the Vilnius City Municipality means that the
Government decided to change the subordination of the House of
Artists of Lithuania: the House of Artists of Lithuania had to
be converted from a state budgetary establishment-republican
cultural establishment to a municipal budgetary
establishment-local (municipal) cultural establishment.
45. The provision of Item 2.3 of Government Resolution No.
1320 "On the House of Signatories to the Act of Independence of
Lithuania and the House of Artists of Lithuania" of 28 November
1997 that the Vilnius City Municipality has to take over from
the House of Artists of Lithuania the building at Didžioji St.
31, Vilnius, for possession and use by right of trust as
state-owned property means by 1 January 1998 that the
aforementioned building remained state-owned property and the
Vilnius City Municipality had the right to possess and use it
by right of trust. At the time when the Government resolution
became effective, the above-indicated item of Government
Resolution No. 1320 "On the House of Signatories to the Act of
Independence of Lithuania and the House of Artists of
Lithuania" of 28 November 1997 could not be construed as the
one which creates legal preconditions for transferring the
aforementioned building to the ownership of the Vilnius City
Municipality.
46. The provision of Item 2.4 of Government Resolution No.
1320 "On the House of Signatories to the Act of Independence of
Lithuania and the House of Artists of Lithuania" of 28 November
1997 that while discharging the functions of the founder of the
House of Artists of Lithuania, the Vilnius City Municipality
may not change the purpose of the House, type of its activity
nor its status, and must document this in a trilateral
agreement on cooperation between the Vilnius City Board, the
Ministry of Culture and the House of Artists of Lithuania,
means that the Government, even if it decided that the House of
Artists of Lithuania had to be converted from a state budgetary
establishment into a municipal budgetary establishment,
consolidated status quo, i.e. the purpose of the House of
Artists of Lithuania, type of its activity and its status could
not be changed in comparison to the purpose, type of activity
and status that were in place prior to adoption of this
Government resolution, by which one decided that the rights of
the founder of the House of Artists of Lithuania must be
transferred to the Vilnius City Municipality. Thus, the House
of Artists of Lithuania had to continue being a budgetary
cultural establishment; its basic purpose had to continue being
popularisation of art and organisation of events of good
quality; in order to achieve this purpose the House of Artists
of Lithuania had to continue inter alia organising various
cultural events, popularising the newest and most important
achievements in art, organising forums and conferences on the
issues of creative practice and theory of art, propagating art
of Lithuania and other countries, developing international
relations of artists, organising meetings of Lithuanian artists
with fellow country-men residing abroad; the Council of the
House of Artists of Lithuania had to continue contributing to
the possession of the House of Artists of Lithuania with an
advisory vote; etc.
The provision of Item 2 of Government Resolution No. 1320
"On the House of Signatories to the Act of Independence of
Lithuania and the House of Artists of Lithuania" of 28 November
1997 "To commission the Vilnius City Municipality <...> while
discharging the functions of the founder of the House of
Artists of Lithuania not to change the purpose of the House,
type of its activity and its status, and document this in a
trilateral agreement on cooperation between the Vilnius City
Board, the Ministry of Culture and the House of Artists of
Lithuania" means that the Vilnius City Municipality has to
accept an obligation by the aforementioned trilateral agreement
not to take any actions and not to adopt any decisions, by
which the purpose of the House of Artists of Lithuania, type of
its activity and its status could be changed or preconditions
could be created for changing the purpose of the House of
Artists of Lithuania, type of its activity and its status in
the future.
The formula "trilateral agreement on cooperation" of Item
2.4 of Government Resolution No. 1320 "On the House of
Signatories to the Act of Independence of Lithuania and the
House of Artists of Lithuania" of 28 November 1997 implies that
activity of the House of Artists of Lithuania must be based on
cooperation between the Vilnius City Municipality, the Ministry
of Culture and the House of Artists of Lithuania, and that the
parties to the above-mentioned cooperation agreement may agree
on the forms and procedures of cooperation. Such cooperation
must be aimed at developing the activity of the House of
Artists of Lithuania in a way, which would ensure the
continuity of the entrenched in this Government resolution
purpose of the House of Artists of Lithuania, type of its
activity and its status. The provision of the above-mentioned
Government resolution concerning the trilateral agreement on
cooperation between the Vilnius City Board, the Ministry of
Culture and the House of Artists of Lithuania is to be assessed
as an additional guarantee that the status quo of the House of
Artists of Lithuania will not be changed-its purpose, type of
activity and status will remain the same as they were at the
time of adoption of this Government resolution.
47. It should be noted that at the time when Government
Resolution No. 1320 "On the House of Signatories to the Act of
Independence of Lithuania and the House of Artists of
Lithuania" of 28 November 1997 was adopted and became
effective, the Law "On the Procedure of Reorganisation and
Liquidation of Establishments of Culture" (wording of 13 June
1995) was effective, according to which cultural establishments
that belonged to the sphere of regulation by municipal councils
could be reorganised or liquidated only upon written consent of
the Ministry of Culture.
Having held that the Government by Resolution No. 1320 "On
the House of Signatories to the Act of Independence of
Lithuania and the House of Artists of Lithuania" of 28 November
1997 decided to change the subordination of the House of
Artists of Lithuania and that the House of Artists of Lithuania
had to be converted from a state budgetary establishment-a
republican cultural establishment-to a municipal budgetary
establishment, a local (municipal) cultural establishment, one
should hold also that by the aforementioned resolution of the
Government this establishment was assigned (transferred) from
the sphere of regulation by the state to the sphere of
regulation by the Council of the Vilnius City Municipality.
The prohibition imposed on the Vilnius City Municipality
to change the status of the House of Artists of Lithuania,
which is consolidated in Item 2.4 of Government Resolution No.
1320 "On the House of Signatories to the Act of Independence of
Lithuania and the House of Artists of Lithuania" of 28 November
1997, means also that the Vilnius City Municipality as the
founder of the House of Artists of Lithuania had no right to
liquidate the House of Artists of Lithuania, thus it had no
right to apply to the Ministry of Culture with the request to
permit the liquidation of the House of Artists of Lithuania as
well. If the Vilnius City Municipality decided nevertheless to
address the Ministry of Culture with such a request, according
to the aforementioned Item of the Government resolution the
Ministry of Culture may not grant such permission (although,
according to the Law "On the Procedure of Reorganisation and
Liquidation of Establishments of Culture" (wording of 13 June
1995) it had the power to decide whether to consent to the
liquidation of the House of Artists of Lithuania as a cultural
establishment, which was assigned to the sphere of regulation
by the Council of the Vilnius City Municipality).
IV
On the compliance of the Law "On the Procedure of
Reorganisation and Liquidation of Establishments of Culture"
(wording of 13 June 1995) with Paragraph 2 of Article 120 of
the Constitution.
1. It has been mentioned that it was established in the
Law "On the Procedure of Reorganisation and Liquidation of
Establishments of Culture" (wording of 13 June 1995) that
cultural establishments that belong to the sphere of regulation
by municipal councils may be reorganised or liquidated only
upon written consent of the Ministry of Culture.
2. It was held in this Constitutional Court ruling that:
- Paragraph 2 of Article 120 of the Constitution wherein
it is established that municipalities act freely and
independently within their competence, which shall be
established by the Constitution and laws, and Paragraph 3 of
Article 119 of the Constitution, wherein it is established
inter alia that procedure of activity of self-government
institutions is established by law implies also that the
legislator has the duty to set by laws the procedure of
establishment of municipal establishments or enterprises, and
municipal councils must establish municipal establishments or
enterprises according to the requirements set in laws; that the
right of municipal councils to establish various accountable to
them institutions-municipal establishments or enterprises that
are necessary to municipalities in order to perform the
functions transferred to them-implies also their right to
liquidate, reorganize or upon the established procedure in any
other way restructure the aforementioned institutions
(irrespective of the way how such liquidation, reorganisation
or restructuring in any other way of municipal establishments
or enterprises is called in laws or substatutory legal acts,
including decisions of respective municipal councils);
- the legislator, while paying heed to the Constitution,
may establish by laws certain conditions and/or procedure,
which must be followed by municipalities when they implement
their rights of the founder of institutions or enterprises that
are founded by them, moreover, one may set by laws other
restrictions that restrict to a certain extent the rights of
municipalities as the founders of respective establishments or
enterprises;
- the transfer of rights of the founder of establishments
or enterprises, which were held previously by certain state
institutions, does not mean that one may not establish by law
certain conditions and/or procedures, which must be followed by
municipalities when the exercise of the rights of the founder
of the above-mentioned establishments or enterprises
transferred to them, moreover, this does not mean that one may
not establish by law other limitations that restrict to a
certain extent the rights of municipalities as the founders of
establishments or enterprises that are newly assigned to them;
when establishing the above-mentioned conditions, procedures or
other limitations, one must not violate the interests of
municipalities and pay heed to the entrenched in the
Constitution independence and freedom of activity of
municipalities within the competence established by the
Constitution and laws, as well as principles of co-ordination
of interests of municipalities and the state;
- the legislator, while paying heed to the Constitution,
may establish by laws certain conditions and/or procedure,
which must be followed by municipalities when they implement
their rights of the founder of establishments or enterprises
(inter alia establishments or enterprises that provide services
of public culture) that are founded by them and that contribute
to the development of culture, as well as other limitations
that restrict to a certain extent the rights of municipalities
as the founders of respective establishments or enterprises and
guarantee that municipalities will properly perform the
function of support and protection of culture which is
transferred to them (to the established extent);
- when a respective state institution transfers the
establishment or enterprise of culture to the municipal level
(inter alia having transferred the rights of the founder to
municipality), the state may and, in certain cases must,
establish by the law various restrictions applicable to the
municipality, which must be followed by the latter when it
exercises the rights of the founder, inter alia when it adopts
decisions on reorganisation, liquidation or any other
restructuring of establishments or enterprises that are
transferred to municipalities; in certain cases, if the state
establishes no such restrictions applicable to municipalities,
the performance of the function of support and protection of
culture, which is transferred to the municipal level, would
become more difficult or municipalities could even refuse to a
certain extent the performance of the function of support and
protection of culture, which is set as their function by laws;
this restriction of independence of municipalities originates
from the Constitution and in itself should not be considered as
disregard of interests of municipalities; by this restriction
originating from the Constitution one ensures the co-ordination
of interests of municipality and the state.
3. By the requirement established in the Law "On the
Procedure of Reorganisation and Liquidation of Establishments
of Culture" (wording of 13 June 1995) that prior to the
liquidation or reorganisation of cultural establishments
belonging to the sphere of their regulation municipal councils
must receive written consent of the Ministry of Culture one
seeks to attain a publicly important objective-to ensure
execution of the support and protection of culture as the
function of the state which is consolidated in the
Constitution, to ensure the preservation of public interest,
the existence of the system of institutions that are aimed at
taking care of the development of culture (inter alia
establishments or enterprises that provide services of public
culture) and implementation of national policy of culture.
By such legal regulation one does not fail to pay heed to
the interests of municipality nor are the constitutional
principles of independence and freedom of activity of
municipalities according to the competence defined in the
Constitution and laws, the principles of co-ordination of the
interests of municipalities and the state, as well as the
constitutional concept of local self-government, violated.
4. Taking account of the aforementioned arguments a
conclusion is to be made that the Law "On the Procedure of
Reorganisation and Liquidation of Establishments of Culture"
(wording of 13 June 1995) was not in conflict with Paragraph 2
of Article 120 of the Constitution.
V
On the compliance of Items 1, 2.3 and 2.4 of Government
Resolution No. 1320 "On the House of Signatories to the Act of
Independence of Lithuania and the House of Artists of
Lithuania" of 28 November 1997 with Paragraph 2 of Article 94
of the Constitution and the constitutional principle of a state
under the rule of law.
1. It has been mentioned that by Government Resolution No.
1320 "On the House of Signatories to the Act of Independence of
Lithuania and the House of Artists of Lithuania" of 8 November
1997 inter alia the Ministry of Culture was commissioned to
transfer the functions of the founder of the House of Artists
of Lithuania to the Vilnius City Municipality by 1 January 1998
(Item 1), and the Vilnius City Municipality was commissioned to
take over from the House of Artists of Lithuania the building
at Didžioji St. 31, Vilnius, for possession and use by right of
trust as state-owned property by 1 January 1998 (Item 2.3), and
while discharging the functions of the founder of the House of
Artists of Lithuania, not to change the purpose of the House,
type of its activity and its status, and to document this in a
trilateral agreement on cooperation between the Vilnius City
Board, the Ministry of Culture and the House of Artists of
Lithuania (Item 2.4).
2. It was held in this Constitutional Court ruling:
- assignment of any state institution or enterprise to a
respective municipality, inter alia transfer of the rights of
the founder of this institution (establishment or enterprise),
through which functions of the state are performed, to the
municipality must be based on the law; the established by such
law legal regulation, which is followed by the state
institution enjoying the powers to issue legal acts, according
to which a respective state institution (establishment or
enterprise), through which functions of the state are
performed, is assigned to the municipality, inter alia the
rights of the founder of this institutions (establishment or
enterprise), through which functions of the state are
performed, are transferred, may be general (lex generalis) or
special (lex specialis);
- the requirement to regulate relations of changing the
subordination of state institutions (establishments or
enterprises) the purpose of which is to take care of the
development of culture (inter alia establishments or
enterprises that provide public services) by laws originates
from the Constitution.
3. The Government inter alia executes laws (Item 2 of
Article 94 of the Constitution), administers the affairs of the
country (Item 1 of Article 94 of the Constitution).
It was held that the constitutional principle of a state
under the rule of law and the constitutional imperative of the
rule of law mean that the freedom of state power is limited by
law, to which all the entities of legal relations, including
the law-making entities, must obey. It was held also that the
Government is bound by its own resolutions and the Government
must follow the requirements set therein until the Government
resolution is amended or annulled.
4. When deciding whether Items 1, 2.3 and 2.4 of
Government Resolution No. 1320 "On the House of Signatories to
the Act of Independence of Lithuania and the House of Artists
of Lithuania" of 28 November 1997 are not in conflict with the
Constitution it is to be noted that at the time of the adoption
and coming into effect of the aforementioned Government
resolution Government Resolution No. 554 "On the Approval of
the Procedure of Reorganisation and Liquidation of Budgetary
Establishments" of 10 May 1996 was effective, by Item 15.3 of
the Procedure of Reorganisation and Liquidation of Budgetary
Establishments that was approved thereby one established that
in case the budgetary establishment is transferred from the
sphere of regulation by the state to the sphere of regulation
by a municipality and from the sphere of regulation by a
municipality to the sphere of regulation by the state, a
decision concerning the change of its subordination is made
upon the procedure established by laws.
It has been held in this Constitutional Court ruling:
- at the time when Government Resolution No. 1320 "On the
House of Signatories to the Act of Independence of Lithuania
and the House of Artists of Lithuania" of 28 November 1997 was
adopted and went into effect, in the Law on Budgetary
Establishments there was no provision regulating the change of
subordination of budgetary establishments the purpose of which
is to take care of development of culture (inter alia
establishments that provide services of public culture) from
the sphere of regulation by the state to the sphere of
regulation by a municipality and from the sphere of regulation
by a municipality to the sphere of regulation by the state;
other laws that were effective at that time contained no
provisions regulating this issue, either;
- the provision of Item 15.3 of the Procedure of
Reorganisation and Liquidation of Budgetary Establishments
which was approved by Government Resolution No. 554 "On the
Approval of the Procedure of Reorganisation and Liquidation of
Budgetary Establishments" of 10 May 1996 that in case a
budgetary establishment is transferred from the sphere of
regulation by the state to the sphere of regulation by a
municipality (as well as from the sphere of regulation by a
municipality to the sphere of regulation by the state), a
decision concerning the change of its subordination is made
upon the procedure established by laws means also that until a
respective law is adopted, no state institution, including the
Government, may adopt a decision to transfer any budgetary
establishment from the sphere of regulation by the state to the
sphere of regulation by a municipality (as well as from the
sphere of regulation by a municipality to the sphere of
regulation by the state);
- at the time when Government Resolution No. 1320 "On the
House of Signatories to the Act of Independence of Lithuania
and the House of Artists of Lithuania" of 28 November 1997 was
adopted and became effective, the compliance of Item 2.4 of
which with the Constitution is disputed by the petitioner, no
law regulating the transfer of budgetary establishments from
the sphere of regulation by the state to the sphere of
regulation by a municipality was adopted.
5. It has been held that by Government Resolution No. 1320
"On the House of Signatories to the Act of Independence of
Lithuania and the House of Artists of Lithuania" of 28 November
1997 one decided to change the subordination of the House of
Artists of Lithuania and they had to be transformed from a
state budgetary establishment, a republican cultural
establishment, into a municipal budgetary establishment, a
local (municipal) institution, as well as that by the
aforementioned Government resolution this establishment was
transferred from the sphere of regulation by the state to the
sphere of regulation by the Council of the Vilnius City
Municipality.
Thus the Government, which by its Resolution 1320 "On the
House of Signatories to the Act of Independence of Lithuania
and the House of Artists of Lithuania" of 28 November 1997
commissioned the Ministry of Culture to transfer to the Vilnius
City Municipality the rights of the founder of the House of
Artists of Lithuania (Item 1) and established that the Vilnius
City Municipality becomes the founder of the House of Artists
of Lithuania (Items 1 and 2.4), i.e. which changed the
subordination of the House of Artists of Lithuania and
transferred them from the sphere of regulation by the state to
the sphere of regulation by the Council of the Vilnius City
Municipality, failed to follow the requirements that it itself
had set-the provision of Item 15.3 of the Procedure of
Reorganisation and Liquidation of Budgetary Establishments that
was approved by Government Resolution No. 554 "On the Approval
of the Procedure of Reorganisation and Liquidation of Budgetary
Establishments" of 10 May 1996 that in case a budgetary
establishment is transferred from the sphere of regulation by
the state to the sphere of regulation by a municipality, a
decision concerning the change of its subordination is made
upon the procedure established by laws.
6. It was mentioned that immediately after the
Constitution became effective, a legal situation occurred where
most of the laws establishing the Government powers to decide
by resolutions issues of administration of the country have not
been adopted yet and the Government used to adopt resolutions
which were not directly based on laws establishing respective
powers of the Government as well. In addition, it has been
mentioned that when deciding in the cases of constitutional
justice whether such Government resolutions are not in conflict
with the Constitution, one should also take into account the
fact whether respective Government resolutions were not caused
by the necessity to immediately implement some provisions of
the Constitution, despite the fact that their implementation,
thus the Government powers in respective areas, had not been
regulated by laws yet.
It was held also that the aforementioned transitional
period, when the said specific legal situation was in place, is
long over.
It should be noted in the context of the constitutional
justice case at issue that this period had expired already
prior to the adoption of Resolution No. 1320 "On the House of
Signatories to the Act of Independence of Lithuania and the
House of Artists of Lithuania" of 28 November 1997 by the
Government.
It is to be mentioned also that the issues which were
decided by the aforementioned Government resolution are not to
be considered the decisions caused by the necessity for the
Government, which under the Constitution enjoys powers to
administer state affairs, to immediately implement some
provisions of the Constitution.
7. Thus, at the time of the adoption of Resolution No.
1320 "On the House of Signatories to the Act of Independence of
Lithuania and the House of Artists of Lithuania" of 28 November
1997 the Government had no power directly arising from the law
or from the Constitution to commission the Ministry of Culture
to transfer to the Vilnius City Municipality the functions of
the founder of the House of Artists of Lithuania, nor to
establish that the Vilnius City Municipality becomes the
founder of the House of Artists of Lithuania (to change the
subordination of the House of Artists of Lithuania and transfer
it from the sphere of regulation by the state to the sphere of
regulation by the Council of the Vilnius City Municipality).
8. By such legal regulation established in Items 1 and 2.4
of Government Resolution No. 1320 "On the House of Signatories
to the Act of Independence of Lithuania and the House of
Artists of Lithuania" of 28 November 1997 one failed to pay
heed to the constitutional principle of a state under the rule
of law and the requirement of Item 2 of Article 94 of the
Constitution that the Government executes laws.
9. Taking account of the above-mentioned arguments one
should conclude that Items 1 and 2.4 of Government Resolution
No. 1320 "On the House of Signatories to the Act of
Independence of Lithuania and the House of Artists of
Lithuania" of 28 November 1997 are in conflict with Item 2 of
Article 94 of the Constitution and the constitutional principle
of a state under the rule of law.
10. It has been mentioned that it is established in Item
2.3 of Government Resolution No. 1320 "On the House of
Signatories to the Act of Independence of Lithuania and the
House of Artists of Lithuania" of 28 November 1997 that the
Vilnius City Municipality must take over from the House of
Artists of Lithuania the house located at Didžioji St. 31,
Vilnius for possession and use as state-owned property under
the right of trust by 1 January 1998.
It has been mentioned also that the disputed by the
petitioner Item 2.4 of Government Resolution No. 1320 "On the
House of Signatories to the Act of Independence of Lithuania
and the House of Artists of Lithuania" of 28 November 1997
regulates relations linked to the House of Artists of Lithuania
and it is inseparably related to Items 1 and 2.3 of this
Government resolution.
11. After it was consolidated in Items 1 and 2.4 of
Government Resolution No. 1320 "On the House of Signatories to
the Act of Independence of Lithuania and the House of Artists
of Lithuania" of 28 November 1997 that the Vilnius City
Municipality becomes the founder of the House of Artists of
Lithuania, preconditions were created for establishing that the
Vilnius City Municipality must take over from the House of
Artists of Lithuania the house located at Didžioji St. 31,
Vilnius, in which the seat of the House of Artists of Lithuania
is placed, for possession and use as state-owned property under
the right of trust. The provision with this particular content
is consolidated in Item 2.3 of this Government resolution.
It was held in this Constitutional Court ruling that Items
1 and 2.4 of Government Resolution No. 1320 "On the House of
Signatories to the Act of Independence of Lithuania and the
House of Artists of Lithuania" of 28 November 1997 are in
conflict with Item 2 of Article 94 of the Constitution and the
constitutional principle of a state under the rule of law.
Having held this, one should also hold that Item 2.3 of
Government Resolution No. 1320 "On the House of Signatories to
the Act of Independence of Lithuania and the House of Artists
of Lithuania" of 28 November 1997 is in conflict with Item 2 of
Article 94 of the Constitution and the constitutional principle
of a state under the rule of law as well.
12. Having held that Items 1, 2.3 and 2.4 of Government
Resolution No. 1320 "On the House of Signatories to the Act of
Independence of Lithuania and the House of Artists of
Lithuania" of 28 November 1997 are in conflict with Item 2 of
Article 94 of the Constitution and the constitutional principle
of a state under the rule of law, the Constitutional Court will
not investigate in this case as to whether these items are not
in conflict with Paragraph 2 of Article 120 of the
Constitution, Paragraph 1 of Article 3, Paragraphs 2 and 5 of
Article 4, and Paragraph 1 of Article 6 of the European Charter
of Local Self-Government, as well as Item 4 of Paragraph 1 of
Article 4 and Item 13 of Paragraph 1 of Article 6 of the
Republic of Lithuania Law on Local Self-Government.
VI
1. After coming into effect of Government Resolution No.
1320 "On the House of Signatories to the Act of Independence of
Lithuania and the House of Artists of Lithuania" of 28 November
1997, the legal regulation of relations of possession of
property owned by the state and municipalities, its use and
disposal, which was established by laws and Government
resolutions, was changed.
During this period various state institutions and
institutions of the Vilnius City Municipality (their officials)
performed actions and adopted decisions related to the House of
Artists of Lithuania and the building at Didžioji St. 31,
Vilnius, in which the seat of the House of Artists of Lithuania
is located.
2. It is clear from the material of the case that inter
alia:
- the building at Didžioji St. 31, Vilnius was registered
as the one, which belongs under the right of ownership to the
Vilnius City Municipality. Later the Vilnius City Municipality
founded a budgetary establishment, the Vilnius City Hall, and
on 18 December 1998 by its Decision No. 301 approved the
Regulations of the Vilnius City Hall. After that, on 13
December 1999, the Council of the Vilnius City Municipality
adopted Decision No. 439 "On Transfer and Use of the Building
at Didžioji St. 31 to the Vilnius City Hall", by Item 1 of
which one transferred to the budgetary establishment "Vilnius
City Hall" the building at Didžioji St. 31, Vilnius, to be
possessed and used under the right of trust, and by Item 3 the
possessor of this budgetary establishment was commissioned "to
allocate premises under the principle of use for the permanent
activity of the House of Artists of Lithuania". However, at
present the Vilnius City Hall, which possesses and uses the
aforementioned building, is no longer a municipal budgetary
establishment, but a public establishment:
- on 28 November 2001, the Council of the Vilnius City
Municipality adopted Decision No. 444 "On Liquidation of the
Budgetary Establishment 'The House of Artists of Lithuania'",
by Item 1 of which one decided to liquidate the budgetary
establishment "The House of Artists of Lithuania", and by Item
2 of which the Vilnius City Board was authorised "to perform
all the actions related to the liquidation of the establishment
and its exclusion from the registry". It is to be held that at
present the House of Artists of Lithuania is basically inactive
as an establishment.
3. It was mentioned in this Constitutional Court ruling
that the Constitution does not tolerate such change of
subordination of a state institution (establishment or
enterprise), inter alia an institution contributing to the
development of culture, when its possession is transferred from
the system of state administration to self-government, if the
transfer of this institution is only a cover for transferring
the state-owned property, related to the aforementioned
institution and/or possessed by inter alia the said institution
or its founder-a state institution (establishment or
enterprise)-to be possessed by the municipality.
It was mentioned that the building at Didžioji St. 31,
Vilnius is the historical Vilnius City Hall, a monument of
culture. It is obvious from the material of the case that this
building belonged under the right of ownership to the state not
only at the time when Government Resolution No. 1320 "On the
House of Signatories to the Act of Independence of Lithuania
and the House of Artists of Lithuania" of 28 November 1997 was
adopted and became effective, but even some time afterwards,
and on 29 December 1997 it was registered as the one which
belongs to the Vilnius City Municipality under the right of
ownership.
It is to be stressed that the building at Didžioji St. 31,
Vilnius, could become ownership of the Vilnius City
Municipality only on the basis of the law.
The Constitution does not tolerate any decisions or
actions, by which such an object of culture like the building
of the Vilnius City Hall (which inter alia is of historical
architectural value) could be transferred from state ownership
to municipal ownership on the basis other than the law.
The Constitution does not tolerate also any decisions or
actions, by which preconditions are created for such cultural
object as the building of the Vilnius City Hall to become
eventually ownership of other persons instead of the state or
municipality.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 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 Republic of Lithuania Law "On the
Procedure of Reorganisation and Liquidation of Establishments
of Culture" (wording of 13 June 1995) was not in conflict with
the Constitution of the Republic of Lithuania.
2. To recognise that Items 1, 2.3 and 2.4 of Government of
the Republic of Lithuania Resolution No. 1320 "On the House of
Signatories to the Act of Independence of Lithuania and the
House of Artists of Lithuania" of 28 November 1997 are in
conflict with Item 2 of Article 94 of the Constitution of the
Republic of Lithuania and the constitutional principle of a
state under the rule of law
This ruling of the Constitutional Court of the Republic of
Lithuania 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
Toma Birmontienė
Egidijus Kūris
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis