Case No. 19/02
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 1 (WORDING OF 23
DECEMBER 1999) AND PARAGRAPH 2 (WORDING OF 23
DECEMBER 1999) OF ARTICLE 7 OF THE REPUBLIC OF
LITHUANIA LAW ON THE AMOUNT, SOURCES, TERMS AND
PROCEDURE OF PAYMENT OF COMPENSATION FOR THE REAL
PROPERTY BOUGHT OUT BY THE STATE, AND ON THE
GUARANTEES AND PREFERENCES WHICH ARE PROVIDED FOR
IN THE LAW ON THE RESTORATION OF CITIZENS' RIGHTS
OF OWNERSHIP TO THE EXISTING REAL PROPERTY AND ON
THE COMPLIANCE OF PARAGRAPH 1 (WORDING OF 14
OCTOBER 2003) AND PARAGRAPH 2 (WORDING OF 14
OCTOBER 2003) OF ARTICLE 7 OF THE REPUBLIC OF
LITHUANIA LAW ON THE AMOUNT, SOURCES, TERMS AND
PROCEDURE OF PAYMENT OF COMPENSATION FOR THE REAL
PROPERTY BOUGHT OUT BY THE STATE, AND ON THE STATE
GUARANTEES AND PREFERENCES WHICH ARE PROVIDED FOR
IN THE LAW ON THE RESTORATION OF CITIZENS' RIGHTS
OF OWNERSHIP TO THE EXISTING REAL PROPERTY WITH
THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
23 August 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 Saulius Švedas, a
senior consultant to the Legal Department of the Office of the
Seimas of the Republic of Lithuania,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 10 August
2005 in its public hearing heard Case No. 19/02 which
originated in a petition of the Supreme Administrative Court of
Lithuania, the petitioner, requesting to investigate as to
whether Paragraphs 1 and 2 (wording of 23 December 1999) of
Article 7 of the Republic of Lithuania Law on the Amount,
Sources, Terms and Procedure of Payment of Compensation for the
Real Property Bought Out by the State, and on the Guarantees
and Preferences Which are Provided For in the Law on the
Restoration of Citizens' Rights of Ownership to the Existing
Real Property were not in conflict with Paragraphs 1 and 3 of
Article 23 and Article 29 of the Constitution of the Republic
of Lithuania.
The Constitutional Court
has established:
I
The Supreme Administrative Court of Lithuania, the
petitioner, was investigating an administrative case. By its
ruling the said court suspended the investigation of the case
and applied to the Constitutional Court with a petition,
requesting to investigate as to whether Paragraphs 1 and 2
(wording of 23 December 1999) of Article 7 of the Republic of
Lithuania Law on the Amount, Sources, Terms and Procedure of
Payment of Compensation for the Real Property Bought Out by the
State, and on the Guarantees and Preferences Which are Provided
For in the Law on the Restoration of Citizens' Rights of
Ownership to the Existing Real Property (hereinafter also
referred to as the Law) (Official Gazette Valstybės žinios,
1999, No. 113-3292) were not in conflict with Paragraphs 1 and
3 of Article 23 and Article 29 of the Constitution.
II
The arguments of the petitioner are based on the following
arguments.
1. The principle of inviolability of property established
in Paragraph 1 of Article 23 of the Constitution means that the
subject of the ownership right has the right to freely possess,
use and dispose of his property, also that he has the right to
demand that other persons not violate his rights. This
provision of the Constitution also consolidates the duty of the
state to ensure the most favourable regime of implementation of
the rights of ownership. By the law that was adopted by the
Seimas on 23 December 1999, upon amendment of the norms whereby
the Government can independently establish the terms and
procedure of payment of monetary compensation, also, upon
postponement of the terms of payment of monetary compensation,
the guarantees established to the owners in Article 7 (wording
of 4 November 1999) of the Law to retrieve their property under
most favourable terms and procedure were deteriorated.
2. Under Paragraph 3 of Article 23 of the Constitution,
property may only be seized for the needs of society in
accordance with the procedure established by law and shall be
justly compensated for. Just compensation includes not only
compensation of equal value for such property, but also the
time-period during which it is compensated. Changing the term
establishing the period of compensation payment, by prolonging
it, as well as limitation of the right to receive annual
compensation in equal portions each quarter of the year, by
establishing an indefinite procedure for the compensation
payment, restricts the right of the owner to possess, use and
dispose of this property, nor does it guarantee just
compensation and thus violates the principles of equal rights
of subjects of the ownership right and protection of legitimate
expectations.
3. Having adopted a decision to restore the rights of
ownership to the existing real property (by returning it in
kind or by compensation), the holders of the ownership right
must be guaranteed an equal right to possess, use and dispose
of this property. Upon amending Paragraphs 1 and 2 of Article 7
of the Law and upon prolonging the terms of compensation
payment, the possessor of the compensation finds himself in an
unequal situation, in which he is discriminated, in regard of
another owner-a person to whom the real property has been
returned in kind. Therefore, in the opinion of the petitioner,
Paragraphs 1 and 2 (wording of 23 December 1999) of Article 7
of the Law are in conflict with the principle of equal rights
of persons, which is enshrined in Article 29 of the
Constitution.
III
1. In the course of the preparation of the case for the
Constitutional Court hearing, a written explanation was
received form the member of the Seimas A. Butkevičius, the
representative of the Seimas, the party concerned.
It is asserted in the explanation that the Seimas, after
it had amended the provisions of the Law and prolonged the
terms of final payment of monetary compensation for the real
property bought out by the state, did not deprive the citizens
of their right to monetary compensation, nor did it diminish
the compensation. It is established in the Law that the sums of
the monetary compensation not paid to the citizens are indexed
by taking account of the annual inflation. The financial
resources of the state are limited. The state must fulfil the
undertaken obligations (to restore the rights of ownership to
the existing real property nationalised by the occupation
government and to restore the deposits held in state-owned
banks by residents), however, it must carry out the duties
established to it in the Constitution as well: to guarantee the
right to education and healthcare to citizens, to support the
family, culture, etc. Lithuania must maintain a stable
macro-economic situation, the fiscal indexes fixed in various
international agreements, as well as fulfil its financial
liabilities. If liabilities are fulfilled unconditionally in
regard of one group of persons, the interests of the state and,
alongside, those of all citizens of the state, might suffer.
Therefore, the Seimas, while assessing the financial
capabilities of the state, adopted the amendments to the Law,
i.e. it prolonged the compensation payment terms and changed
the compensation payment procedure, however, it did not reject
the provision that the persons who have the right to receive
compensation for the real property bought out by the state must
be justly compensated for the property seized for the needs of
society.
2. By President of the Seimas Ordinance No. 45 of 23 June
2005 the representative of the party concerned, the Seimas, was
changed. S. Švedas, a senior consultant to the Legal Department
of the Office of the Seimas, was empowered to represent the
Seimas instead of the member of the Seimas A. Butkevičius. In
his explanation submitted to the Constitutional Court, S.
Švedas informed the Court that he supports the arguments set
forth in the written explanation of A. Butkevičius, a member of
the Seimas.
IV
In the course of the preparation of the case for the
judicial investigation, information was received from A.
Butkevičius, the then Minister of Finance of the Republic of
Lithuania, as to how much funds was necessary from all sources
of financing (including the State Budget) for the monetary
compensation so that it might be possible to fully settle
accounts with the persons to whom the rights of ownership were
restored for the existing real property.
V
At the Constitutional Court hearing, the representative of
the Seimas, the party concerned, who was S. Švedas, a senior
consultant to the Legal Department of the Office of the Seimas,
virtually reiterated the arguments set forth in the written
explanations of the former representative of the Seimas, the
party concerned, A. Butkevičius, a member of the Seimas, and
submitted additional explanations.
The Constitutional Court
holds that:
I
1. The petitioner requests to investigate whether
Paragraph 1 (wording of 23 December 1999) and Paragraph 2
(wording of 23 December 1999) of Article 7 of the Law on the
Amount, Sources, Terms and Procedure of Payment of Compensation
for the Real Property Bought Out by the State, and on the
Guarantees and Preferences Which are Provided For in the Law on
the Restoration of Citizens' Rights of Ownership to the
Existing Real Property were not in conflict with Paragraphs 1
and 3 of Article 23 and Article 29 of the Constitution.
2. On 16 June 1998, the Seimas adopted the Law on the
Amount, Sources, Terms and Procedure of Payment of Compensation
for the Real Property Bought Out by the State, and on the
Guarantees and Preferences Which are Provided For in the Law on
the Restoration of Citizens' Rights of Ownership to the
Existing Real Property. This Law went into effect on 8 July
1998.
It was established in Article 7 (wording of 16 June 1998)
of the Law:
"1. The terms of compensation for individual objects of
real property (land, forest, water bodies, economic-commercial
buildings and their appurtenances, residential houses, parts
thereof, flats) shall be established by the Government.
2. The compensation shall annually be paid in cash in
equal portions from the day of adoption of the decision to
restore the ownership rights. The Government is granted the
right to issue Government securities each year for the sum
which is necessary to pay the compensation. The monetary
compensation shall be paid:
1) for the bought out land, forest and water bodies-until
1 August 2006;
2) for the residential houses, parts thereof, flats-until
1 January 2010;
3) the compensation for the bought out land, forest, and
water bodies shall be paid to the volunteers-servicemen of the
1918-1920 fights for the independence, participants of the
resistance, political prisoners, exiles and persons awarded by
the Order of Vytis Cross, their spouses, parents (foster
parents), children (foster children) shall be paid until 1
August 2002, while for the residential houses, parts thereof,
flats-until 1 January 2006.
3. The sums of the monetary compensation that have not
been paid to the citizens shall be indexed while taking account
of the annual inflation.
4. The Government or an institution empowered by it has
the right to issue securities or to take loans to pay the
compensation for the existing real property. The funds
designated for the compensation shall be distributed by the
Government or the institution empowered by it."
3. On 4 November 1999, the Seimas adopted the Republic of
Lithuania Law on Supplementing Article 7 of the Law on the
Amount, Sources, Terms and Procedure of Payment of Compensation
for the Real Property Bought Out by the State, and on the
Guarantees and Preferences Which are Provided For in the Law on
the Restoration of Citizens' Rights of Ownership to the
Existing Real Property, by Article 1 whereof Paragraph 2
(wording of 16 June 1998) of Article 7 of the Law was
supplemented.
Paragraph 2 (wording of 4 November 1999) of Article 7 of
the Law was set forth as follows:
"The compensation shall annually be paid in cash in equal
portions from the day of adoption of the decision to restore
the ownership rights. In the course of a year the compensation
shall be paid every three months in equal portions. The
Government is granted the right to issue Government securities
each year for the sum which is necessary to pay the
compensation. The monetary compensation shall be paid:
1) for the bought out land, forest and water bodies-until
1 August 2006;
2) for the residential houses, parts thereof, flats-until
1 January 2010;
3) the compensation for the bought out land, forest, and
water bodies shall be paid to the volunteers-servicemen of the
1918-1920 fights for the independence, participants of the
resistance, political prisoners, exiles and persons awarded by
the Order of Vytis Cross, their spouses, parents (foster
parents), children (foster children) shall be paid until 1
August 2002, while for the residential houses, parts thereof,
flats-until 1 January 2006."
4. Having compared Paragraph 2 (wording of 4 November
1999) of Article 7 of the Law with the previous wording (16
June 1998) of the same paragraph, it is clear that the new
provision "in the course of a year the compensation shall be
paid every three months in equal portions" was consolidated in
Paragraph 2 (wording of 4 November 1999) of Article 7 of the
Law. Thus, by this new provision of Paragraph 2 (wording of 4
November 1999) of Article 7 of the Law the legal regulation of
allocation and payment of the monetary compensation was
particularised in the aspect that it established in what
periods the portion of the monetary compensation must be paid,
which must be paid to the person during each year: the annual
compensation had to be paid every three months in equal
portions.
5. On 23 December 1999, the Seimas adopted the Law on
Amending Article 7 of the Law on the Amount, Sources, Terms and
Procedure of Payment of Compensation for the Real Property
Bought Out by the State, and on the Guarantees and Preferences
Which are Provided For in the Law on the Restoration of
Citizens' Rights of Ownership to the Existing Real Property by
Article 1 whereof Paragraph 1 (wording of 16 June 1998) and
Paragraph 2 (wording of 4 November 1999) of Article 7 of the
Law were amended.
Paragraph 1 (wording of 23 December 1999) of Article 7 of
the Law was set forth as follows:
"The amounts, terms and procedure of compensation for
individual objects of real property (land, forest, water
bodies, economic-commercial buildings and their appurtenances,
residential houses, parts thereof, flats) shall be annually
established by the Government by taking account of financial
capabilities of the state, including new property obligations
of the state and sources of revenues of the state, after the
financial indexes of the State Budget and of municipal budgets
are confirmed."
Paragraph 2 (wording of 23 December 1999) of Article 7 of
the Law was set forth as follows:
"The monetary compensation shall be paid from the day of
adoption of the decision to restore the ownership rights under
procedure and conditions established by the Government:
1) for the bought out land, forest and water bodies-until
1 January 2009;
2) for the residential houses, parts thereof, flats-until
1 January 2011;
3) the compensation for the bought out land, forest, and
water bodies shall be paid to invalids of the 1st group, the
volunteers-servicemen of the 1918-1920 fights for the
independence, participants of the resistance, political
prisoners, exiles and persons awarded by the Order of Vytis
Cross prior to 15 June 1940, their spouses, parents (foster
parents), children (foster children) shall be paid until 1
August 2003, while for the residential houses, parts thereof,
flats-until 1 January 2007."
6. Having compared Paragraph 1 (wording of 23 December
1999) of Article 7 of the Law with Paragraph 1 (wording of 16
June 1998) of Article 7 of the Law, it is clear that the
following new provisions were consolidated in Paragraph 1
(wording of 23 December 1999) of Article 7 of the Law: the
amounts and procedure of compensation for individual objects of
real property are established by the Government; the Government
annually establishes the amounts, terms and procedure of the
compensation for individual objects of real property; the
Government does so after the financial indexes of the State
Budget and of municipal budgets are confirmed; while
establishing the amounts, terms and procedure of the
compensation for individual objects of real property, the
Government takes account of financial capabilities of the
state, including new property obligations of the state and
sources of revenues of the state.
In the context of the constitutional justice case at
issue, it needs to be noted that instead of the previously
consolidated provision "the compensation shall annually be paid
in cash in equal portions from the day of adoption of the
decision to restore the ownership rights" (wording of 16 June
1998) and the provision "in the course of a year the
compensation shall be paid every three months in equal
portions" (wording of 4 November 1999) the provision "the
monetary compensation shall be paid from the day of adoption of
the decision to restore the ownership rights under procedure
and conditions established by the Government" was consolidated
in Paragraph 2 (wording of 23 December 1999) of Article 7 of
the Law.
In the context of the constitutional justice case at
issue, it also needs to be noted that Paragraph 2 (wording of
23 December 1999) of Article 7 of the Law established different
terms of compensation payment than those established in
Paragraph 2 (wording of 4 November 1999) of Article 7 of the
Law-they were prolonged:
1) instead of the previously established term "until 1
August 2006", until which one had to finish the payment of the
monetary compensation for the bought out land, forest and water
bodies, the term "until 1 January 2009" was established (Item
1); thus, the term until which the monetary compensation had to
have been finished was prolonged by almost 2.5 years;
2) instead of the previously established term "until 1
January 2010", until which one had to finish the payment of the
monetary compensation for the residential houses, parts
thereof, flats, the term "until 1 January 2011" was established
(Item 1); thus, the term until which the monetary compensation
had to have been finished was prolonged by 1 year;
3) instead of the previously established term "until 1
August 2002", until which one had to finish the payment of the
monetary compensation for the bought out land, forest and water
bodies to the volunteers-servicemen of the 1918-1920 fights for
the independence, participants of the resistance, political
prisoners, exiles and persons awarded by the Order of Vytis
Cross, their spouses, parents (foster parents), children
(foster children), the term "until 1 August 2003" was
established (Item 3); thus, the term until which the monetary
compensation had to have been finished was prolonged by 1 year;
4) instead of the previously established term "until 1
January 2006", until which one had to finish the payment of the
monetary compensation for residential houses, parts thereof and
flats to the volunteers-servicemen of the 1918-1920 fights for
the independence, participants of the resistance, political
prisoners, exiles and persons awarded by the Order of Vytis
Cross, their spouses, parents (foster parents), children
(foster children), the term "until 1 January 2007" was
established (Item 3); thus, the term until which the monetary
compensation had to have been finished was prolonged by 1 year.
It also needs to be noted that Item 3 (wording of 23
December 1999) of Paragraph 2 of Article 7 established a
different provision concerning the payment of monetary
compensation to persons awarded by the Order of Vytis Cross:
instead of the provision "persons awarded by the Order of Vytis
Cross" which used to be in Item 3 (wording of 16 June 1998) the
provision "persons awarded by the Order of Vytis Cross prior to
15 June 1940" was consolidated. One more category of persons
was also included in Item 3 (wording of 16 June 1998) of
Paragraph 2 of Article 7 of the Law, i.e. invalids of the 1st
group.
7. Although the petitioner requests to investigate the
compliance of entire Paragraph 2 (wording of 23 December 1999)
of Article 7 of the Law, it is clear from the petition of the
petitioner, that he does not doubt whether entire Paragraph 2
(wording of 23 December 1999) of Article 7 of the Law was not
in conflict with the Constitution, but only whether the
provision "the monetary compensation shall be paid <...> under
procedure and conditions established by the Government" of
Paragraph 2 (wording of 23 December 1999) of Article 7 of the
Law, also whether the fact that by Paragraph 2 (wording of 23
December 1999) of Article 7 of the Law the terms were prolonged
until which one had to have finished the monetary
compensation-instead of the term "until 1 August 2006"
previously established in Item 1 of Paragraph 2 (wording of 23
December 1999) of Article 7 of the Law until which one had to
have finished the monetary compensation for the bought out
land, forest and water bodies, the term "until 1 January 2009"
was established; instead of the previously established term
"until 1 January 2010" until which one had to have finished the
monetary compensation for the residential houses, parts
thereof, flats, in Item 2 a new term was established, which was
"until 1 January 2011"; instead of the previously established
term "until 1 August 2002" until which one had to have finished
the monetary compensation for the bought out land, forest, and
water bodies to the volunteers-servicemen of the 1918-1920
fights for the independence, participants of the resistance,
political prisoners, exiles and persons awarded by the Order of
Vytis Cross prior to 15 June 1940, their spouses, parents
(foster parents), children (foster children) in Item 3 a new
term was established, which was "until 1 August 2003", and
instead of the previously established term "1 January 2006"
until which one had to have finished the monetary compensation
for the residential houses, parts thereof, flats to the
volunteers-servicemen of the 1918-1920 fights for the
independence, participants of the resistance, political
prisoners, exiles and persons awarded by the Order of Vytis
Cross prior to 15 June 1940, their spouses, parents (foster
parents), children (foster children) in Item 3 a new term was
established, which was "until 1 January 2007"-were not in
conflict with the Constitution.
8. Subsequent to the petition of the petitioner, in this
constitutional justice case the Constitutional Court will
investigate whether the following was not in conflict with the
Constitution:
- Paragraph 1 (wording of 23 December 1999) of Article 7
of the Law;
- the provision "the monetary compensation shall be paid
<...> under procedure and conditions established by the
Government" of Paragraph 2 (wording of 23 December 1999) of
Article 7 of the Law;
- Paragraph 2 (wording of 23 December 1999) of Article 7
of the Law to the extent that it established new terms until
which one had to have finished the monetary compensation for
the real property bought out by the state, i.e. the term "until
1 January 2009" established in Item 1, the term "until 1
January 2011" established in Item 2, and the terms "until 1
August 2003" and "until 1 January 2007" established in Item 3.
II
1. After the occupation government nationalised and in
other unlawful ways disseized residential houses, parts
thereof, flats, land, forests, water bodies, and other private
property in 1940 and later, the innate human right to possess
private property was denied.
On the basis of such arbitrary acts of the occupation
government, there could not appear, nor did there appear any
lawful state-owned, public property, since law cannot appear on
the basis of lawlessness. In its rulings the Constitutional
Court has held more than once that the property seized from the
people in such manner is to be regarded as property factually
possessed by the state.
2. On 15 November 1990, the Supreme Council of the
Republic of Lithuania adopted a principle decision that it was
necessary to restore the rights of ownership and held that
continuity of the ownership rights of citizens of Lithuania is
indisputably recognised and that citizens of Lithuania have the
right to retrieve in kind, within the limits and under
procedure established by the law, the property that belonged to
them, while in case there is not a possibility to retrieve the
property in kind-to receive compensation.
In its rulings the Constitutional Court noted more than
once that the provision that if it is impossible to retrieve
the property in kind, compensation must given, is not in
conflict with the principles of inviolability of property and
of the protection of ownership rights, since fair compensation
also ensures restoration of ownership rights.
3. It was impossible to restore the denied rights of
ownership on the grounds of the laws that were in effect at the
time when the said principle decision was adopted. For this
purpose one had to legislatively establish special legal
regulation. When regulating the restoration of the denied
rights of ownership, one had to take account of the fact that
during the occupation years different property, social and
economic relations of the people came into being, that there
appeared other objective circumstances due to which it was
impossible to fully restore the rights of ownership (to return
to status quo ante) and to return all existing real property in
kind. Therefore, the legislator chose not restitutio in
integrum, but limited restitution. Such choice of the
legislator was determined, along with the aforesaid factors,
also by the extent of restoration of ownership rights and
limited material and financial capabilities of the state.
4. The fact that the state resolved that the denied rights
of ownership have to be restored, also the fact that a law
regulating restitution relations was adopted and that
implementation of restoration of ownership rights was begun
mean that the state took an obligation to restore the rights of
ownership by the ways and under conditions and procedure
established in the law also within the terms provided for in
the law. Alongside, a duty occurred to the state (its
institutions) to allot the necessary funds and other financial
and material resources (inter alia in order to pay the monetary
compensation for the real property bought out by the state). It
needs to be noted that the legislator, when he legislatively
establishes the ways, conditions and procedure of restoration
of the rights of ownership to the existing real property, also
when he consolidates such a way of restoration of the rights of
ownership to the existing real property as compensation
payment, is bound by the norms and principles of the
Constitution: inter alia by Paragraph 2 of Article 128 of the
Constitution under which the procedure concerning the
possession, use, and disposal of state-owned property shall be
established by law, by Article 23 of the Constitution which
establishes the protection of the rights of ownership, by
Article 29 of the Constitution, which guarantees equal rights
of persons, and by the constitutional principle of a state
under the rule of law, which encompasses legal clarity, legal
certainty, legal security, protection of legitimate
expectations and other requirements; the legislator is also
bound by other norms and principles of the Constitution. While
regulating the restoration of the rights of ownership to the
existing real property, the legislator must take account of the
constitutional principles of protection of property, as well as
of the fact that in the course of restoring the rights of
ownership to the existing real property it is necessary to
protect also the other values entrenched in the Constitution,
inter alia the striving for an open, just and harmonious civil
society and to ensure that while restoring the ownership rights
of certain persons, the owners, one does not violate the rights
and legitimate interests of other persons as well as those of
the entire society. In the process of restoration of the rights
of ownership to the existing real property one must seek to
attain a balance between the rights of the persons to whom the
rights of ownership are being restored and those of the entire
society.
5. The legislator enjoys discretion to legislatively
establish the ways, conditions and procedure of restoration of
the rights of ownership to the existing real property. In order
to fulfil the obligations undertaken by the state to restore
the rights of ownership to the existing real property within
the ways, conditions and procedure established in the law,
inter alia in order to pay the monetary compensation for the
real property bought out by the state, the funds of the State
Budget and other state resources are used. The burden of the
obligations undertaken by the state falls upon the entire
society whose members are also the persons to whom the rights
of ownership are restored. Thus, by establishing the ways,
conditions and procedure of restoration of the rights of
ownership to the existing real property, the state cannot
undertake financial and other obligations of the size that
would be unbearable to society and the state, which would put a
disproportionately big financial or other burden on the
society, which could incite social tension and conflict, which
would not permit or impair the state to ensure other
constitutional values, or which would not permit or impair the
state to discharge the functions that are prescribed to it by
the Constitution. The obligations undertaken by the state to
restore the rights of ownership to the existing real property
must be linked with financial and material capabilities of the
state; the terms of restoration of the rights of ownership to
the existing real property must be realistic-they must be such
so that the state might properly fulfil the undertaken
obligations until the established time.
6. Under the Constitution, the state must keep the
undertaken obligations and fulfil them properly and in time.
Laws on restoration of the rights of ownership to the existing
real property must be supported by financial, material and
other resources of the state. Otherwise, it would be impossible
to make use of the laws providing for restoration of the rights
of ownership, they would become inefficient, and the trust of
the person in the state and law would be undermined.
The constitutional principles of protection of legitimate
expectations, legal certainty and legal security imply a duty
of the state to ensure certainty and stability of legal
regulation, to protect the rights of persons, to respect
legitimate interests and legitimate expectations. In its
rulings the Constitutional Court has held more than once that
the constitutional principle of protection of legitimate
expectations obliges the legislator to ensure the continuity of
jurisprudence and not to deny the acquired rights, legitimate
interests and legitimate expectations of the person by means of
amendments to the regulation.
In the context of the constitutional justice case at
issue, one is to emphasise that the fact that the state decided
that the denied rights of ownership must be restored, also the
fact that a law regulating restitution relations was adopted
and the implementation of the restoration of ownership rights
was begun, created a legitimate expectation to the persons who
had the right to restore their rights of ownership that they
would be able to implement such their right by the ways, under
conditions and procedure and within the terms established by
the law. The said legitimate expectation is protected and
defended by the Constitution. Alongside, a duty appeared to the
state to legislatively regulate the restoration of the rights
of ownership to the existing real property so that the said
expectation could be implemented in reality.
7. As mentioned, in the process of restoration of the
rights of ownership to the existing real property one must seek
to attain a balance between the rights of the persons to whom
the rights of ownership are being restored and those of the
entire society. In the context of the constitutional justice
case at issue, one is to hold that in general the Constitution
does not prevent the legislator from prolonging, in case of
need, the terms until which the payment of monetary
compensation must be over and changing the periodicity of the
previously established monetary compensation, inter alia to
establish the legal regulation which could be less favourable
to persons who enjoy the right to receive the monetary
compensation. However, it is permitted to establish such legal
regulation, which is less favourable to persons who enjoy the
right to receive the monetary compensation, only in exceptional
cases, when doing so is constitutionally justified. In the
context of the constitutional justice case at issue, it must be
noted that inter alia such case is constitutionally justified
when due to special circumstances there appears an especially
difficult economic-financial situation in the state and, in
case the terms which have been previously established by laws,
until which the payment of the monetary compensation must be
over, were not prolonged, and/or in case the periodicity of the
previously established monetary compensation were not changed
into one less favourable to persons who enjoy the right to
receive the monetary compensation, the damage inflicted on the
values protected by the Constitution would be grater than that
which could occur because the terms until which the payment of
the monetary compensation must be over were not prolonged
and/or the periodicity of the previously established monetary
compensation were not changed into one less favourable to
persons who enjoy the right to receive the monetary
compensation.
It must be specially emphasised that the legislator, when
he, due to objective reasons, prolongs the previously
established terms until which the payment of the monetary
compensation must be over, when he changes the previously
established periodicity of payment of the monetary
compensation, must pay heed to the constitutional requirements
of legal clarity, legal certainty, legal security, and
protection of legitimate expectations, which imply a duty of
the legislator also in such cases to legislatively establish
such legal regulation so that it might be clear until when the
payment of monetary compensation will be over, also what
portion of the monetary compensation will be paid to persons
who enjoy the right to receive this compensation and when this
will be done.
8. The constitutional requirements of legal clarity, legal
certainty, and protection of legitimate expectations also imply
that the terms until which the payment of the monetary
compensation must be over cannot be unreasonably long, nor can
they exist and be prolonged for unreasonably long time-period,
since unreasonably long terms of restoration of the rights of
ownership to the existing real property, especially their
unreasonable prolongation (inter alia repeated extension) can
distort the institute of restoration of ownership rights to the
existing real property, violate the constitutional ownership
rights and other rights of the person, and undermine the trust
of people in the state and law.
III
On the compliance of Paragraph 1 (wording of 23 December
1999) and the provision "the monetary compensation shall be
paid <...> under procedure and conditions established by the
Government" of Paragraph 2 (wording of 23 December 1999) of
Article 7 of the Law on the Amount, Sources, Terms and
Procedure of Payment of Compensation for the Real Property
Bought Out by the State, and on the Guarantees and Preferences
Which are Provided For in the Law on the Restoration of
Citizens' Rights of Ownership to the Existing Real Property
with Paragraphs 1 and 3 of Article 23 of the Constitution.
1. The petitioner doubts whether Paragraph 1 (wording of
23 December 1999) and the provision "the monetary compensation
shall be paid <...> under procedure and conditions established
by the Government" of Paragraph 2 (wording of 23 December 1999)
of Article 7 of the Law were not in conflict with Paragraphs 1
and 3 of Article 23 of the Constitution.
2. Article 23 of the Constitution provides:
"Property shall be inviolable.
The rights of ownership shall be protected by laws.
Property may only be seized for the needs of society in
accordance with the procedure established by law and shall be
justly compensated for."
3. The right of ownership is an innate right of the human
being. Ownership is a condition for implementation of great
many other rights of the person.
In its rulings the Constitutional Court has held more than
once that the inviolability of property established in Article
23 of the Constitution means that the owner has the right to
possess the property that belongs to him, as well as to use and
dispose of it, also that he has the right to demand that other
persons not violate these his rights, while the state has a
duty to defend and protect the property from unlawful
encroachment upon it. From Article 23 of the Constitution a
duty arises to the legislator to regulate property relations so
that the rights of ownership would be protected and defended
and that inviolability of property would be ensured.
4. The provision of Paragraph 2 of Article 23 of the
Constitution that the rights of ownership shall be protected by
laws means that the state is under obligation to issue
respective laws protecting the rights of ownership and to
protect ownership on their basis. All other legal acts in the
area of regulation of ownership rights must be in compliance
with laws and must never be in conflict with them.
5. In its rulings adopted in constitutional justice cases
in which one considered the compliance of legal acts (parts
thereof) regulating restoration of citizens' rights of
ownership to the existing real property with the Constitution,
the Constitutional Court noted more than once that until
returning of the property or, in cases where the property is
not returned in kind, then-until the payment of respective
compensation, the subjective rights of the former owner to
concrete property have not been restored yet. A decision of an
institution authorised by the state to return the property in
kind or compensate it bears the juridical meaning that only
from that moment the former owner acquires the rights of the
owner to such property. When the rights of ownership are
restored on the basis of the law, the norms of Article 23 of
the Constitution are applied to the whole extent to their
protection; after the authorised state institution adopts the
decision to restore the rights of ownership to the person, the
said person acquires the rights of ownership which are
protected and defended by Article 23 of the Constitution.
6. The provisions of Article 23 of the Constitution are
linked with various other provisions of the Constitution. In
the context of the case at issue one has to point out the
relation of Article 23 of the Constitution with 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, and with the
constitutional principles of separation of powers and of a
state under the rule of law.
7. While construing Paragraph 2 of Article 128 of the
Constitution, the Constitutional Court held that "the relations
which appear when managing, utilising and disposing of state
property are to be regulated only according to the law"
(Constitutional Court ruling of 24 January 1996), that "it is
only the legislator who may establish the form of utilisation
of the state means" (Constitutional Court ruling of 28 February
1996), and that "it is only the legislator that may establish
the manner and conditions of disposing of state property"
(Constitutional Court ruling of 22 October 1996).
In its ruling of 30 September 2003, the Constitutional
Court noted: "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 means that the transfer of the property which belongs by
right of ownership to the state as ownership to other subjects
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 subjects, and
the powers of these institutions to transfer the said property,
as well as the conditions and procedure of this transfer of the
property."
From the provision "the procedure concerning the
possession, use, and disposal of State-owned property shall be
established by law" of Paragraph 2 of Article 128 of the
Constitution a duty arises to the legislator to establish all
the main elements of the possession, use, and disposal of
state-owned property by means of a law.
8. The monetary compensation for the real property bought
out by the state is paid by use of the funds of the State
Budget and other state-owned property.
In the context of the constitutional justice case at
issue, it needs to be noted that under Paragraph 2 of Article
128 of the Constitution that the legislator must legislatively
establish himself how much funds is to be allocated during a
respective period specified in the law for the monetary
compensation for all objects of real property that are
specified in the law.
9. Paragraph 1 of Article 5 of the Constitution provides
that in Lithuania, the Seimas, the President of the Republic
and the Government, and the Judiciary, shall execute state
power, while Paragraph 2 of the same article provides that the
scope of power shall be limited by the Constitution.
In its rulings the Constitutional Court has held more than
once that the principle of separation of powers in Article 5 of
the Constitution as well as other articles of the Constitution
in which the powers of state institutions executing state power
are established means also that if the powers of a particular
state institution are established in the Constitution, this
state institution cannot waive, nor transfer these powers to
any other institution, nor can they be changed or limited by
the law.
In this context it needs to be mentioned that having held
that the laws restrict the powers ascribed to a particular
institution of state authority by the Constitution, it must be
held, alongside, that Article 5 of the Constitution and the
constitutional principle of separation of powers are violated
(Constitutional Court ruling of 11 July 2002); if the legal
regulation is established whereby the powers of the state
institution specified in Paragraph 1 of Article 5 of the
Constitution or those of any other state institution are
broadened in a constitutionally unreasonable manner, it is to
be held that the provision of Paragraph 2 of Article 5 of the
Constitution that the scope of power shall be limited by the
Constitution is violated (Constitutional Court ruling of 24
December 2002).
10. It stems from Paragraph 2 of Article 128 and
Paragraphs 1 and 2 of Article 23 of the Constitution, when they
are construed together with the constitutional principle of
separation of powers (inter alia established in Paragraphs 1
and 2 of Article 5 of the Constitution) that the legislator
does not have the right to waive the powers vested in him by
Paragraph 2 of Article 128 of the Constitution to legislatively
establish himself how much funds is to be allocated during a
respective period specified in the law for the monetary
compensation for all objects of real property that are
specified in the law; the legislator does not have a right to
transfer these powers to any other state institution, nor
change or limit them by the law, either.
Alongside, it needs to be noted that although the
legislator, as mentioned, has no right to transfer the said
powers vested in him by Paragraph 2 of Article 128 of the
Constitution to legislatively establish himself how much funds
is to be allocated for the monetary compensation during a
respective period specified in the law for all objects of real
property that are specified in the law, to any other state
institution, nor change or limit them by the law, he enjoys
certain discretion to legislatively establish how much funds is
to be allocated for the monetary compensation during a
respective period specified in the law for all objects (their
types) of real property that are specified in the law. For
instance, the legislator can himself legislatively establish
what portion of the funds that he provides for, which is
designated to the monetary compensation for all objects of real
property, is to be allocated to the monetary compensation for
individual objects (their types) of real property; however, the
legislator may also choose another option, which is
establishment of clear criteria in the law, under which the
Government could be entitled to establish what portion of the
funds provided for by the legislator, designated to the
monetary compensation for all objects of real property, is to
be allocated, during a respective period provided for in the
law, to the monetary compensation for individual objects (their
types) of real property that are specified in the law.
11. It also stems from Paragraph 2 of Article 128 and
Paragraphs 1 and 2 of Article 23 of the Constitution, when they
are construed together with the constitutional principle of
separation of powers and the constitutional principle of a
state under the rule of law, which inter alia includes
requirements of legal certainty, legal security, and protection
of legitimate expectations, that the most important elements of
relations of allocation of the monetary compensation and of its
payment must be established by means of a law.
11.1. It should be emphasised that the terms until which
the payment of the monetary compensation for individual objects
(their types) of real property which are specified in the law
must be over can be established only by the law. It must be
clear from the legal regulation established in the law what are
the final terms of the payment of monetary compensation.
11.2. Alongside, it needs to be noted that while
legislatively establishing the amounts of the monetary
compensation for individual objects (their types) of real
property which are specified in the law and the amounts of
portions of allocated monetary compensation for individual
objects (their types) of real property which are specified in
the law (in case the monetary compensation is to be paid in
portions periodically) and the terms (periodicity) of the
payment, the legislator enjoys certain discretion: he can
himself legislatively establish the amounts of the monetary
compensation for individual objects (their types) of real
property which are specified in the law and the amounts of
portions of allocated monetary compensation for individual
objects (their types) of real property which are specified in
the law (in case the monetary compensation is to be paid in
portions periodically) and the terms (periodicity) of the
payment; however, the legislator may also choose another
option, which is legislative establishment of clear criteria
under which the Government could be entitled to establish the
amounts of the monetary compensation for individual objects
(their types) of real property which are specified in the law
and the amounts of portions of allocated monetary compensation
for individual objects (their types) of real property which are
specified in the law (in case the monetary compensation is to
be paid in portions periodically) and the terms (periodicity)
of the payment.
In the context of the constitutional justice case at issue
it needs to be emphasised that the legal regulation in
establishing the amounts of portions of the monetary
compensation (which must be paid periodically) for individual
objects (their types) of real property which are specified in
the law and the terms (periodicity) of the payment, regardless
of whether this is established by the law or by a Government
resolution in accordance of the criteria consolidated in the
law, must be such so that it should be clear what portion of
the monetary compensation and when (within what period) must be
paid to the persons who enjoy the right to receive this
compensation.
It needs to be noted that the necessity to clearly
establish what portion of the allotted monetary compensation
and when (within what period) must be paid to the persons who
enjoy the right to receive this compensation is a legal
guarantee that the state will fulfil the obligations which it
has undertaken within the terms established in the law and that
the constitutional ownership rights of the person will not be
violated.
12. It has been mentioned that Paragraph 1 (wording of 23
December 1999) of Article 7 of the Law used to establish that
the amounts, terms and procedure of compensation for individual
objects of real property (land, forest, water bodies,
economic-commercial buildings and their appurtenances,
residential houses, parts thereof, flats) shall be annually
established by the Government by taking account of financial
capabilities of the state, including new property obligations
of the state and sources of revenues of the state, after the
financial indexes of the State Budget and of municipal budgets
are confirmed.
It is to be held that the following rules for the
establishment of the amount, terms and procedure of
compensation for individual objects of real property were
established in this paragraph of Article 7 of the Law: each
year the Seimas must provide for funds in the State Budget
which are designated to compensation for the real property that
is bought out by the state; after the Seimas confirms the
financial indexes of the State Budget and of municipal budgets,
the Government has the powers to establish how much funds will
be allocated to compensate for individual objects (their types)
of the real property bought out by the state in that year; the
Government, while establishing how much funds will be allocated
to compensate for individual objects (their types) of the real
property bought out by the state in that year must take account
of the financial capabilities of the state, including new
property obligations of the state and sources of revenues of
the state.
Thus, in Paragraph 1 (wording of 23 December 1999) of
Article 7 of the Law the legal regulation was established which
also meant that the Government had the powers to decide what
portion of the funds (from the whole sum provided for by the
Seimas and designated for the monetary compensation in that
year) must be allotted in order to pay, in that year, the
monetary compensation for individual objects (their types) of
the real property; the Government had the powers also to decide
when and under what procedure the funds provided for by it
would be paid for individual objects (their types) of the real
property.
13. One is to hold that Paragraph 1 (wording of 23
December 1999) of Article 7 of the Law did not consolidate any
criteria under which the Government could establish what
portion of the funds provided for by the legislator must be
allocated, during the respective period provided for in the
law, to the individual objects (their types) of the real
property provided for in the law in the course of payment of
the compensation.
Thus, by Paragraph 1 (wording of 23 December 1999) of
Article 7 of the Law the legislator transferred his powers to
the Government, i.e. the powers, which, under Paragraph 2 of
Article 128 of the Constitution, belonged solely to him, to
legislatively establish what portion of the funds provided for
by him to the monetary compensation for all objects (their
types) of real property is allocated to the monetary
compensation during the respective period provided for in the
law for the individual objects (their types) of the real
property provided for in the law, or to consolidate clear
criteria in the law under which the Government could establish
what portion of the funds provided for by the legislator
designated to the monetary compensation for all objects (their
types) of real property is to be allocated, within the
respective period provided for in the law, to pay the monetary
compensation for individual objects (their types) of real
property, which are specified in the law. Such legal regulation
is incompatible with Paragraph 2 of Article 128 of the
Constitution.
It needs to be noted that by Paragraph 1 (wording of 23
December 1999) of Article 7 of the Law the legislator
restricted himself in a constitutionally unreasonable manner
and expanded the powers of the Government in a constitutionally
unreasonable manner. Such legal regulation is incompatible with
the constitutional principle of separation of powers and
Paragraphs 1 and 2 of Article 5 of the Constitution.
14. From Paragraph 1 (wording of 23 December 1999) of the
Law, under which the Government had the powers to decide each
year what portion of the funds provided for by the legislator
designated to the monetary compensation for all objects (their
types) of real property is to be allocated, within the
respective period provided for in the law, to pay the monetary
compensation for individual objects (their types) of real
property, which are specified in the law, it is not clear what
is the amount of the portion of the monetary compensation paid
to persons in a corresponding year and when this portion of the
monetary compensation had to be paid to the persons who had the
right to receive this compensation: under Paragraph 1 (wording
of 23 December 1999) of Article 7 of the Law, both the amount
of the allocated portion of the compensation which had to be
paid in that year and the term of its payment depended on how
much funds had been allocated for these purposes by a
Government resolution. Such legal regulation was not in line
with the requirements of legal clarity, legal certainty, legal
security and protection of legitimate expectations which arise
from the Constitution and thus was in conflict with the
constitutional principle of a state under the rule of law.
15. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 1 (wording of 23 December
1999) of Article 7 of the Law was in conflict with Paragraphs 1
and 2 of Article 5 and Paragraph 2 of Article 128 of the
Constitution as well as the constitutional principles of
separation of powers and of a state under the rule of law.
16. The provision "the monetary compensation shall be paid
<...> under procedure and conditions established by the
Government" of Paragraph 2 (wording of 23 December 1999) of
Article 7 of the Law also means that the Government, while
enjoying the powers to establish the procedure and conditions
of the monetary compensation, has the powers to establish also
the terms (periodicity) of the payment of the portions of the
allocated monetary compensation which must be paid in parts
periodically, although there are not any criteria of this
established by the legislator. Thus, under the provision "the
monetary compensation shall be paid <...> under procedure and
conditions established by the Government" of Paragraph 2
(wording of 23 December 1999) of Article 7 of the Law, the
Government also enjoyed legislatively established powers to
change these terms at its discretion, by taking account of how
much funds was allocated to the payment of the monetary
compensation in a corresponding year and of various other
circumstances. From such legal regulation it is not clear what
portion of allocated monetary compensation had to be paid to
the persons who enjoyed the right to receive this compensation
and when this had to be done.
Such legal regulation is incompatible with Paragraphs 1
and 2 of Article 5 and Paragraph 2 of Article 128 of the
Constitution as well as the constitutional principles of
separation of powers and of a state under the rule of law.
17. Taking account of the arguments set forth, one is to
conclude that the provision "the monetary compensation shall be
paid <...> under procedure and conditions established by the
Government" of Paragraph 2 (wording of 23 December 1999) of
Article 7 of the Law to the extent that it does not establish
the criteria under which the Government could establish the
terms (periodicity) of the payment of the portions of the
allocated monetary compensation was in conflict with Paragraphs
1 and 2 of Article 5 and Paragraph 2 of Article 128 of the
Constitution as well as the constitutional principles of
separation of powers and of a state under the rule of law.
18. While deciding whether Paragraph 1 (wording of 23
December 1999) of Article 7 of the Law and the provision "the
monetary compensation shall be paid <...> under procedure and
conditions established by the Government" of Paragraph 2
(wording of 23 December 1999) of Article 7 of the Law were not
in conflict with Paragraph 1 of Article 23 of the Constitution,
one has to note that, as mentioned, from Article 23 of the
Constitution a duty to arises the legislator to regulate
property relations so that the rights of ownership would be
protected and defended and that inviolability of property would
be ensured.
It has also been mentioned that after the authorised state
institution adopts the decision to restore the rights of
ownership to a person, the said person acquires the rights of
ownership which are protected and defended by Article 23 of the
Constitution.
19. By Paragraph 1 (wording of 23 December 1999) of
Article 7 of the Law and the provision "the monetary
compensation shall be paid <...> under procedure and conditions
established by the Government" of Paragraph 2 (wording of 23
December 1999) of Article 7 of the Law property relations were
regulated.
It was held in this Ruling of the Constitutional Court
that Paragraph 1 (wording of 23 December 1999) of Article 7 of
the Law and the provision "the monetary compensation shall be
paid <...> under procedure and conditions established by the
Government" of Paragraph 2 (wording of 23 December 1999) of
Article 7 of the Law to the extent that it does not establish
the criteria under which the Government could establish the
terms (periodicity) of the payment of the portions of the
allocated monetary compensation were in conflict with
Paragraphs 1 and 2 of Article 5 and Paragraph 2 of Article 128
of the Constitution as well as the constitutional principles of
separation of powers and of a state under the rule of law.
Having held this, one is also to hold that by Paragraph 1
(wording of 23 December 1999) of Article 7 of the Law and by
the provision "the monetary compensation shall be paid <...>
under procedure and conditions established by the Government"
of Paragraph 2 (wording of 23 December 1999) of Article 7 of
the Law (to the aforementioned extent) the rights of ownership
are not sufficiently protected and defended-one did not pay
heed to the requirements of Paragraphs 1 and 2 of Article 23 of
the Constitution under which laws must protect and defend the
rights of ownership.
20. Taking account of the arguments set forth, one is to
conclude that Paragraph 1 (wording of 23 December 1999) of
Article 7 of the Law and the provision "the monetary
compensation shall be paid <...> under procedure and conditions
established by the Government" of Paragraph 2 (wording of 23
December 1999) of Article 7 of the Law to the extent that it
does not establish the criteria under which the Government
could establish the terms (periodicity) of the payment of the
portions of the allocated monetary compensation were in
conflict with Paragraphs 1 and 2 of Article 23 of the
Constitution.
21. While deciding whether Paragraph 1 (wording of 23
December 1999) of Article 7 of the Law and the provision "the
monetary compensation shall be paid <...> under procedure and
conditions established by the Government" of Paragraph 2
(wording of 23 December 1999) of Article 7 of the Law were not
in conflict with Paragraph 3 of Article 23 of the Constitution
which provides that property may only be seized for the needs
of society in accordance with the procedure established by law
and shall be justly compensated for, it needs to be noted that
restoration of the rights of ownership to the existing real
property, as well as restoration in the way when monetary
compensation is paid for the property bought out by the state,
cannot be identified with the seizure of property for the needs
of society by justly compensating for it: the nature and
purpose of these legal institutes are different.
Thus, Paragraph 1 (wording of 23 December 1999) of Article
7 of the Law and the provision "the monetary compensation shall
be paid <...> under procedure and conditions established by the
Government" of Paragraph 2 (wording of 23 December 1999) of
Article 7 of the Law regulated relations of different character
than those which are regulated by Paragraph 3 of Article 23 of
the Constitution.
22. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 1 (wording of 23 December
1999) of Article 7 of the Law and the provision "the monetary
compensation shall be paid <...> under procedure and conditions
established by the Government" of Paragraph 2 (wording of 23
December 1999) of Article 7 of the Law were not in conflict
with Paragraph 3 of Article 23 of the Constitution.
23. Having held that Paragraph 1 (wording of 23 December
1999) of Article 7 of the Law and the provision "the monetary
compensation shall be paid <...> under procedure and conditions
established by the Government" of Paragraph 2 (wording of 23
December 1999) of Article 7 of the Law to the extent that it
does not establish the criteria under which the Government
could establish the terms (periodicity) of the payment of the
portions of the allocated monetary compensation were in
conflict with Paragraphs 1 and 2 of Article 5, Paragraphs 1 and
2 of Article 23 of the Constitution, Paragraph 2 of Article
128, and the constitutional principles of separation of powers
and of a state under the rule of law, in this constitutional
justice case the Constitutional Court will not investigate
whether Paragraph 1 (wording of 23 December 1999) of Article 7
of the Law and the provision "the monetary compensation shall
be paid <...> under procedure and conditions established by the
Government" of Paragraph 2 (wording of 23 December 1999) of
Article 7 of the Law were not in conflict with Article 29 of
the Constitution.
IV
On the compliance of Paragraph 2 (wording of 23 December
1999) of Article 7 of the Law on the Amount, Sources, Terms and
Procedure of Payment of Compensation for the Real Property
Bought Out by the State, and on the Guarantees and Preferences
Which are Provided For in the Law on the Restoration of
Citizens' Rights of Ownership to the Existing Real Property to
the extent that it established new terms until which one had to
have finished the monetary compensation for the real property
bought out by the state, i.e. the term "until 1 January 2009"
established in Item 1, the term "until 1 January 2011"
established in Item 2, and the terms "until 1 August 2003" and
"until 1 January 2007" established in Item 3, with Paragraphs 1
and 3 of Article 23 of the Constitution.
1. The petitioner doubts whether Paragraph 2 (wording of
23 December 1999) of Article 7 of the Law to the extent that it
established new terms until which one had to have finished the
monetary compensation for the real property bought out by the
state, i.e. the term "until 1 January 2009" established in Item
1, the term "until 1 January 2011" established in Item 2, and
the terms "until 1 August 2003" and "until 1 January 2007"
established in Item 3, was not in conflict with Paragraphs 1
and 3 of Article 23 of the Constitution.
2. It is clear from the case material, inter alia from the
explanations of the representative of the party concerned, the
Seimas, presented at the Constitutional Court hearing, as well
as from the short-hand records of the Seimas sittings in which
one was deliberating and adopting the changes to Article 7
(wording of 4 November 1999) of the Law that the provisions
"the compensation shall annually be paid in cash in equal
portions" (wording of June 1998) and "in the course of a year
the compensation shall be paid every three months in equal
portions" (wording of 4 November 1999) of Paragraph 2 of
Article 7 of the Law were made by the Law on Amending Article 7
of the Law on the Amount, Sources, Terms and Procedure of
Payment of Compensation for the Real Property Bought Out by the
State, and on the Guarantees and Preferences Which are Provided
For in the Law on the Restoration of Citizens' Rights of
Ownership to the Existing Real Property because in Lithuania,
at the end of 1999, there was an especially grave economic
situation which had been determined, to large extent, by the
Russian economic-financial crisis and other outside factors,
which had a negative impact on the economic-financial system of
Lithuania as well as other states, inter alia because a very
big sum of funds had not been collected into the 1999 State
Budget, which was necessary in order to finance education,
healthcare, social maintenance and other necessities of society
and the state as well as in order to discharge other functions
of the state; the State Budget had not accumulated enough funds
and it was impossible to pay the monetary compensation as it
was provided by Paragraph 2 (wording of 4 November 1999) of
Article 7 of the Law, i.e. to pay the allocated compensation in
cash annually in equal portions and to pay the annual portion
of the compensation every three months in equal portions. The
negative impact on formation and execution of the State Budget
brought about by the said especially grave economic-financial
situation which appeared at the end of 1999 could be felt for
some time afterwards.
It is clear from the case material, inter alia from the
explanations of the representative of the party concerned, the
Seimas, at the Constitutional Court hearing, as well as from
the short-hand records of the Seimas sittings in which one was
deliberating and adopting the changes to Article 7 (wording of
4 November 1999) of the Law that it was due to the especially
grave economic-financial situation which appeared at the end of
1999 that the Seimas, by the law adopted on 23 December 1999,
also prolonged the terms established in Paragraph 2 (wording of
4 November 1999) of Article 7 of the Law, until which one
should have finished the payment of the monetary compensation
to the persons who had the right to receive it.
3. The fact that at the end of 1999, after there had
appeared an especially grave economic-financial situation in
Lithuania, it was impossible to accumulate enough funds in the
State Budget in order to pay the monetary compensation for the
existing real property, and the fact that the negative impact
on formation and execution of the State Budget brought about by
the especially grave economic-financial situation which
appeared at the end of 1999 could be felt for some time
afterwards, are to be assessed as such factual situation which
could not be disregarded by the legislator. Under the said
factual situation the Seimas could adopt a decision to prolong
the terms until which the state had to fulfil the obligations
which it had undertaken to pay the monetary compensation for
the existing real property. It also needs to be noted that the
previously established terms until which one had to finish the
payment of the monetary compensation were prolonged by the Law
on Amending Article 7 of the Law on the Amount, Sources, Terms
and Procedure of Payment of Compensation for the Real Property
Bought Out by the State, and on the Guarantees and Preferences
Which are Provided For in the Law on the Restoration of
Citizens' Rights of Ownership to the Existing Real Property,
which was adopted by the Seimas on 23 December 1999, for a
comparatively short time period-from one till almost two years
and a half.
4. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 2 (wording of 23 December
1999) of Article 7 of the Law to the extent that it established
new terms until which one had to have finished the monetary
compensation for the real property bought out by the state,
i.e. the term "until 1 January 2009" established in Item 1, the
term "until 1 January 2011" established in Item 2, and the
terms "until 1 August 2003" and "until 1 January 2007"
established in Item 3, was not in conflict with Paragraph 1 of
Article 23 of the Constitution.
5. While deciding whether Paragraph 2 (wording of 23
December 1999) of Article 7 of the Law to the extent that it
established new terms until which one had to have finished the
monetary compensation for the real property bought out by the
state, i.e. the term "until 1 January 2009" established in Item
1, the term "until 1 January 2011" established in Item 2, and
the terms "until 1 August 2003" and "until 1 January 2007"
established in Item 3, was not in conflict with Paragraph 3 of
Article 23 of the Constitution, it needs to be noted that the
disputed provision of Paragraph 2 (wording of 23 December 1999)
of Article 7 of the Law regulates relations of different
character than those which are regulated by Paragraph 3 of
Article 23 of the Constitution. The prolongation of the terms
until which the payment of the monetary compensation must be
over cannot be compared with the seizure of property for the
needs of society by justly compensating for it which is
regulated by Paragraph 3 of Article 23 of the Constitution.
6. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 2 (wording of 23 December
1999) of Article 7 of the Law to the extent that it established
new terms until which one had to have finished the monetary
compensation for the real property bought out by the state,
i.e. the term "until 1 January 2009" established in Item 1, the
term "until 1 January 2011" established in Item 2, and the
terms "until 1 August 2003" and "until 1 January 2007"
established in Item 3, was not in conflict with Paragraph 3 of
Article 23 of the Constitution.
V
On the compliance of Paragraph 2 (wording of 23 December
1999) of Article 7 of the Law on the Amount, Sources, Terms and
Procedure of Payment of Compensation for the Real Property
Bought Out by the State, and on the Guarantees and Preferences
Which are Provided For in the Law on the Restoration of
Citizens' Rights of Ownership to the Existing Real Property to
the extent that it established new terms until which one had to
have finished the monetary compensation for the real property
bought out by the state, i.e. the term "until 1 January 2009"
established in Item 1, the term "until 1 January 2011"
established in Item 2, and the terms "until 1 August 2003" and
"until 1 January 2007" established in Item 3, with Article 29
of the Constitution.
1. The petitioner doubts whether Paragraph 2 (wording of
23 December 1999) of Article 7 of the Law on the Amount,
Sources, Terms and Procedure of Payment of Compensation for the
Real Property Bought Out by the State, and on the Guarantees
and Preferences Which are Provided For in the Law on the
Restoration of Citizens' Rights of Ownership to the Existing
Real Property to the extent that it established new terms until
which one had to have finished the monetary compensation for
the real property bought out by the state, i.e. the term "until
1 January 2009" established in Item 1, the term "until 1
January 2011" established in Item 2, and the terms "until 1
August 2003" and "until 1 January 2007" established in Item 3,
was not in conflict with Article 29 of the Constitution in the
aspect that, according to the petitioner, upon prolongation of
the terms until which the monetary compensation had to be over,
the person to whom the rights of ownership had been restored by
way of payment of the monetary compensation found himself in an
unequal, discriminating situation in regard of other persons,
i.e. those to whom the rights of ownership had been restored by
returning the property in kind.
2. Article 29 of the Constitution provides:
"All persons shall be equal before the law, the court, and
other State institutions and officials.
The human being may not have his rights restricted, nor
may he be granted any privileges on the grounds of gender,
race, nationality, language, origin, social status, beliefs,
convictions, or views."
3. It has been held in this Ruling of the Constitutional
Court that under the factual situation where due to the
especially grave economic-financial situation which appeared at
the end of 1999 it was impossible to accumulate enough funds in
the State Budget in order to pay the monetary compensation for
the existing real property and that the negative impact on
formation and execution of the State Budget brought about by
the especially grave economic-financial situation which
appeared at the end of 1999 could be felt for some time
afterwards, the Seimas could adopt a decision to prolong the
terms until which the state had to fulfil the obligations which
it had undertaken to pay the monetary compensation for the
existing real property.
It has also been held that Paragraph 2 (wording of 23
December 1999) of Article 7 of the Law to the extent that it
established new terms until which one had to have finished the
monetary compensation for the real property bought out by the
state, i.e. the term "until 1 January 2009" established in Item
1, the term "until 1 January 2011" established in Item 2, and
the terms "until 1 August 2003" and "until 1 January 2007"
established in Item 3 was not in conflict with Paragraphs 1 and
3 of Article 23 of the Constitution.
4. While deciding whether Paragraph 2 (wording of 23
December 1999) of Article 7 of the Law to the extent that it
established new terms until which one had to have finished the
monetary compensation for the real property bought out by the
state, i.e. the term "until 1 January 2009" established in Item
1, the term "until 1 January 2011" established in Item 2, and
the terms "until 1 August 2003" and "until 1 January 2007"
established in Item 3, was not in conflict with Article 29 of
the Constitution in the aspect specified by the petitioner,
i.e., that, according to petitioner, upon prolongation of the
terms until which the monetary compensation had to be over, the
person to whom the rights of ownership had been restored by way
of payment of the monetary compensation found himself in an
unequal, discriminating situation in regard of other persons,
i.e. those to whom the rights of ownership had been restored by
returning the property in kind, one is to note that, as the
Constitutional Court has held in its rulings many a time, the
principle of equality of rights of persons enshrined in Article
29 of the Constitution does not deny, in itself, an opportunity
to establish, by means of a law, different legal regulation in
respect of certain categories of persons who are in different
situations.
It needs to be emphasised that at the very beginning of
the restitution process, i.e. on 15 November 1990, when a
decision was adopted that it was necessary to restore the
rights of ownership in principle, and later, when the first
law, as well as other laws, was issued, which regulated the
relations of restoration of the rights of ownership to the
existing real property, the legislator differentiated the
persons to whom the rights of ownership to the existing real
property were to be restored by returning the property in kind,
from the persons to whom the rights of ownership to the
existing real property were to be restored by paying monetary
compensation. The differentiation of the said groups of persons
were and are determined by objective circumstances, i.e.
impossibility to return the existing real property in kind in
every case. It was due to the fact that it was impossible to
return the existing real property in kind in every case that
the state undertook an obligation to restore, within some
period of time, the rights of ownership to the existing real
property, which was impossible to return in kind, by paying
monetary compensation.
It needs to be noted that the prolongation of the terms
until which the payment of the monetary compensation must be
over cannot be assessed as discrimination of the persons to
whom the rights of ownership to the existing real property are
restored by paying the monetary compensation in regard with
other persons, i.e. those to whom the rights of ownership to
the existing real property are restored by returning it in
kind, since the categories of these persons are objectively in
different situations namely due to the fact that to the persons
of one category the property is returned in kind, while to the
persons of the other category the property is not returned in
kind-it is compensated in cash during a certain period of time.
5. While taking account of the arguments set forth, one is
to draw a conclusion that Paragraph 2 (wording of 23 December
1999) of Article 7 of the Law to the extent that it established
new terms until which one had to have finished the monetary
compensation for the real property bought out by the state,
i.e. the term "until 1 January 2009" established in Item 1, the
term "until 1 January 2011" established in Item 2, and the
terms "until 1 August 2003" and "until 1 January 2007"
established in Item 3, was not in conflict with Article 29 of
the Constitution.
VI
1. The provisions of Paragraph 2 (wording of 23 December
1999) of Article 7 of the Law, which are disputed by the
petitioner, were amended and supplemented by subsequently
adopted laws.
2. By Article 1 of the 21 January 2003 Republic of
Lithuania Law on Amending Article 7 of the Law on the Amount,
Sources, Terms and Procedure of Payment of Compensation for the
Real Property Bought Out by the State, and on the Guarantees
and Preferences Which are Provided For in the Law on the
Restoration of Citizens' Rights of Ownership to the Existing
Real Property the Seimas amended Item 3 (wording of 23 December
1999) of Paragraph 2 of Article 7 of the Law. By the said
amendment Item 3 (wording of 23 December 1999) of Paragraph 2
of Article 7 of the Law was supplemented and split into two
items-3 and 4.
Upon supplementation of Item 3 (wording of 23 December
1999) of Paragraph 2 of Article 7 of the Law, an additional
category of persons-persons who needed endoprosthetic
operations, to whom the monetary compensation was to be paid
within the term established in this item-was entered into it.
Upon splitting Item 3 (wording of 23 December 1999) of
Paragraph 2 of Article 7 of the Law, the categories of persons
listed therein were divided into two groups and the terms until
which the payment of the monetary compensation was to be over
were prolonged:
- the term of payment of the monetary compensation to the
persons specified in Item 3 (wording of 21 January 2003) of
Paragraph 2 of Article 7 of the Law, i.e. invalids of the 1st
group, persons who needed endoprosthetic operations, the
volunteers-servicemen of the 1918-1920 fights for the
independence, participants of the resistance, political
prisoners, exiles and persons awarded by the Order of Vytis
Cross prior to 15 June 1940, for the bought out land, forest,
and water bodies was prolonged from 1 August 2003 till 1
January 2007. The payment of the monetary compensation for the
residential houses, parts thereof, flats remained the same,
i.e.-until 1 January 2007;
- the term of payment of the monetary compensation to the
persons specified in Item 4 (wording of 21 January 2003) of
Paragraph 2 of Article 7 of the Law for the bought out land,
forest, and water bodies was prolonged from 1 August 2003 till
1 January 2009, while for the residential houses, parts
thereof, flats-from 1 January 2007 until 1 January 2009.
3. As mentioned, in 1999 there was a very grave
economic-financial situation in the state. This situation had a
very negative impact on the fulfilment of various financial
liabilities of the state, including the obligations to pay the
monetary compensation for the existing real property; it gave
rise to not one-time, but lasting negative effects which were
felt for some time afterwards in this country. When the end
date of the terms of the payment of the monetary compensation
was approaching, it became clear that the state would not be
able to make it within the time established in the Law. As the
state did not fulfil the said obligations in time, the Seimas
once again prolonged the terms until which the payment of the
monetary compensation was to be over by the law adopted on 21
January 2003.
4. The Constitutional Court, while in this constitutional
justice case not assessing whether the provisions of Paragraph
2 (wording of 21 January 2003) of Paragraph 2 of Article 7 of
the Law, which established even later terms than those which
had been established in Paragraph 2 (wording of 23 December
1999) of Article 7 of the Law until which the payment of the
monetary compensation must be over, were not in conflict with
the Constitution, emphasises that the state, which undertook
the obligation to complete the payment of the monetary
compensation within the terms established in the law, has a
duty to properly fulfil this obligation within established
time; in order to fulfil this obligation, sufficient financial,
material and other state resources must be allocated.
One is to pay attention to the fact that the process of
restoration of ownership rights to the existing real property,
as well as the restoration of the rights of ownership to the
existing real property by way of paying monetary compensation,
has become too protracted. The prolongation of the terms until
which the payment of the monetary compensation is to be over,
especially their repeated extension, the indeterminacy of the
procedure of the monetary compensation, when it is not clear as
to what part of monetary compensation will be paid and when,
diminishes certainty of the legal regulation and legal
security, it gives grounds for doubt whether the state will
fulfil the undertaken obligation in time, and whether it will
not prolong the terms of their fulfilment in the future. The
said extension of terms diminishes the trust of people in the
state and law.
In this context, one is to emphasise that the terms
established in Paragraph 2 (wording of 21 January 2003) of
Article 7 of the Law until which the payment of the monetary
compensation is to be over should not be prolonged once again.
Otherwise, only due to this the constitutional rights of
ownership and other constitutional rights of the person might
be violated and there might arise serious doubts whether the
prolongation of such terms is not in conflict with the
Constitution.
5. By Article 1 of the 14 October 2003 Republic of
Lithuania Law on Amending the Law on the Amount, Sources, Terms
and Procedure of Payment of Compensation for the Real Property
Bought Out by the State, and on the Guarantees and Preferences
Which are Provided For in the Law on the Restoration of
Citizens' Rights of Ownership to the Existing Real Property
(Official Gazette Valstybės žinios, 2003, No. 102-4582) the
Seimas amended the Law the provisions of which are disputed by
the petitioner, and set it forth in a new wording and inter
alia changed the title of the law-it was titled the Law on the
Amount, Sources, Terms and Procedure of Payment of Compensation
for the Real Property Bought Out by the State, and on the State
Guarantees and Preferences Which are Provided For in the Law on
the Restoration of Citizens' Rights of Ownership to the
Existing Real Property.
Paragraph 1 (wording of 14 October 2003) of Article 7 of
the Law on the Amount, Sources, Terms and Procedure of Payment
of Compensation for the Real Property Bought Out by the State,
and on the State Guarantees and Preferences Which are Provided
For in the Law on the Restoration of Citizens' Rights of
Ownership to the Existing Real Property provides:
"The amounts, terms and procedure of compensation for
individual objects of real property (land, forest, water
bodies, economic-commercial buildings and their appurtenances,
residential houses, parts thereof, flats) shall be annually
established by the Government by taking account of financial
capabilities of the state, including new property obligations
of the state and sources of revenues of the state, after the
financial indexes of the State Budget and of municipal budgets
are confirmed."
6. Having compared Paragraph 1 (wording of 14 October
2003) of Article 7 of the Law on the Amount, Sources, Terms and
Procedure of Payment of Compensation for the Real Property
Bought Out by the State, and on the State Guarantees and
Preferences Which are Provided For in the Law on the
Restoration of Citizens' Rights of Ownership to the Existing
Real Property with Paragraph 1 (wording of 23 December 1999) of
Article 7 of the Law on the Amount, Sources, Terms and
Procedure of Payment of Compensation for the Real Property
Bought Out by the State, and on the Guarantees and Preferences
Which are Provided For in the Law on the Restoration of
Citizens' Rights of Ownership to the Existing Real Property, it
is clear that the legal regulation established in them is
virtually the same.
It has been held in this Ruling of the Constitutional
Court that Paragraph 1 (wording of 23 December 1999) of Article
7 of the Law on the Amount, Sources, Terms and Procedure of
Payment of Compensation for the Real Property Bought Out by the
State, and on the Guarantees and Preferences Which are Provided
For in the Law on the Restoration of Citizens' Rights of
Ownership to the Existing Real Property was in conflict with
Paragraphs 1 and 2 of Article 5, Paragraphs 1 and 2 of Article
23, Paragraph 2 of Article 128 of the Constitution as well as
the constitutional principles of separation of powers and of a
state under the rule of law.
Having held this, it is to be held that Paragraph 1
(wording of 14 October 2003) of Article 7 of the Law on the
Amount, Sources, Terms and Procedure of Payment of Compensation
for the Real Property Bought Out by the State, and on the State
Guarantees and Preferences Which are Provided For in the Law on
the Restoration of Citizens' Rights of Ownership to the
Existing Real Property is in conflict with Paragraphs 1 and 2
of Article 5, Paragraphs 1 and 2 of Article 23, Paragraph 2 of
Article 128 of the Constitution as well as the constitutional
principles of separation of powers and of a state under the
rule of law as well.
7. Paragraph 2 (wording of 14 October 2003) of Article 7
of the Law on the Amount, Sources, Terms and Procedure of
Payment of Compensation for the Real Property Bought Out by the
State, and on the State Guarantees and Preferences Which are
Provided For in the Law on the Restoration of Citizens' Rights
of Ownership to the Existing Real Property contains the
provision "the monetary compensation shall be paid <...> under
procedure and terms established by the Government".
If one compares this provision with the provision "the
monetary compensation shall be paid <...> under procedure and
conditions established by the Government" of Paragraph 2
(wording of 23 December 1999) of Article 7 of the Law on the
Amount, Sources, Terms and Procedure of Payment of Compensation
for the Real Property Bought Out by the State, and on the
Guarantees and Preferences Which are Provided For in the Law on
the Restoration of Citizens' Rights of Ownership to the
Existing Real Property, it is clear that in the provision of
Paragraph 2 (wording of 14 October 2003) of Article 7 of the
Law on the Amount, Sources, Terms and Procedure of Payment of
Compensation for the Real Property Bought Out by the State, and
on the State Guarantees and Preferences Which are Provided For
in the Law on the Restoration of Citizens' Rights of Ownership
to the Existing Real Property the word "conditions" is gone and
instead of it the word "terms" was entered.
It needs to be noted that the provision "the monetary
compensation shall be paid <...> under procedure and terms
established by the Government" of Paragraph 2 (wording of 14
October 2003) of Article 7 of the Law on the Amount, Sources,
Terms and Procedure of Payment of Compensation for the Real
Property Bought Out by the State, and on the State Guarantees
and Preferences Which are Provided For in the Law on the
Restoration of Citizens' Rights of Ownership to the Existing
Real Property also means that the Government enjoys inter alia
the powers to establish the terms (periodicity) of payment of
the portions of the allocated monetary compensation which must
be paid periodically, although there are not any criteria
established by the legislator.
It has been held in this Ruling of the Constitutional
Court that the provision "the monetary compensation shall be
paid <...> under procedure and conditions established by the
Government" of Paragraph 2 (wording of 23 December 1999) of
Article 7 of the Law to the extent that it does not establish
the criteria under which the Government could establish the
terms (periodicity) of the payment of the portions of the
allocated monetary compensation was in conflict with Paragraphs
1 and 2 of Article 5, Paragraphs 1 and 2 of Article 23, and
Paragraph 2 of Article 128 of the Constitution as well as the
constitutional principles of separation of powers and of a
state under the rule of law.
Having held this, one is also to hold that the provision
"the monetary compensation shall be paid <...> under procedure
and terms established by the Government" of Paragraph 2
(wording of 14 October 2003) of Article 7 of the Law on the
Amount, Sources, Terms and Procedure of Payment of Compensation
for the Real Property Bought Out by the State, and on the State
Guarantees and Preferences Which are Provided For in the Law on
the Restoration of Citizens' Rights of Ownership to the
Existing Real Property to the extent that it does not establish
the criteria under which the Government could establish the
terms (periodicity) of the payment of the portions of the
allocated monetary compensation is in conflict with Paragraphs
1 and 2 of Article 5, Paragraphs 1 and 2 of Article 23, and
Paragraph 2 of Article 128 of the Constitution as well as the
constitutional principles of separation of powers and of a
state under the rule of law.
VII
1. Under Paragraph 1 of Article 107 of the Constitution, a
law (or part thereof) may not be applied from the day of
official promulgation of the decision of the Constitutional
Court that the act in question (or part thereof) is in conflict
with the Constitution. Thus, after a ruling of the
Constitutional Court goes into effect, whereby the law (part
thereof) is recognised as conflicting with the Constitution,
there might appear various indeterminacies in the legal system,
lacunae legis-gaps in the legal regulation, or even a vacuum.
In order to evade this, one must correct the legal regulation
in time so that the gaps in the legal regulation as well as
other indeterminacies could be removed and that the legal
regulation might become clear and harmonious.
In its ruling of 19 January 2005, the Constitutional Court
stated that under the Constitution, the Constitutional Court,
having inter alia assessed what legal situation might appear
after a Constitutional Court ruling becomes effective, may
establish a date when this Constitutional Court ruling is to be
officially published; the Constitutional Court may postpone the
official publishing of its ruling if it is necessary to give
the legislator certain time to remove the lacunae legis which
would appear if the relevant Constitutional Court ruling was
officially published immediately after it had been publicly
announced in the hearing of the Constitutional Court and if
they constituted preconditions to basically deny certain values
protected by the Constitution. The said postponement of
official publishing of the Constitutional Court ruling (inter
alia a ruling by which a certain law (or part thereof) is
recognised as contradicting to the Constitution) is a
presumption arising from the Constitution in order to avoid
certain effects unfavourable to the society and the state, as
well as the human rights and freedoms, which might appear if
the relevant Constitutional Court ruling was officially
published immediately after its official announcement in the
hearing of the Constitutional Court and if it became effective
on the same day after it had been officially published.
If this Ruling of the Constitutional Court was officially
published after its public promulgation at the hearing of the
Constitutional Court, Paragraph 1 (wording of 23 December 1999)
of Article 7 and the provision "the monetary compensation shall
be paid <...> under procedure and conditions established by the
Government" of Paragraph 2 (wording of 23 December 1999) of
Article 7 of the Law on the Amount, Sources, Terms and
Procedure of Payment of Compensation for the Real Property
Bought Out by the State, and on the Guarantees and Preferences
Which are Provided For in the Law on the Restoration of
Citizens' Rights of Ownership, as well as Paragraph 1 (wording
of 14 October 2003) of Article 7 and the provision "the
monetary compensation shall be paid <...> under procedure and
terms established by the Government" of Paragraph 2 (wording of
14 October 2003) of Article 7 of the Law on the Amount,
Sources, Terms and Procedure of Payment of Compensation for the
Real Property Bought Out by the State, and on the State
Guarantees and Preferences Which are Provided For in the Law on
the Restoration of Citizens' Rights of Ownership, which have
been recognised as being in conflict with the Constitution by
this Ruling of the Constitutional Court, could not be applied
from the day of official publishing of this Ruling of the
Constitutional Court. In such a case there would appear such
indeterminacies and gaps in the legal regulation of restoration
of the rights of ownership to the existing real property due to
which the restoration of the rights of ownership to the
existing real property would be disturbed in essence or even it
would be temporarily discontinued.
2. After Paragraph 1 (wording of 23 December 1999) of
Article 7 and the provision "the monetary compensation shall be
paid <...> under procedure and conditions established by the
Government" of Paragraph 2 (wording of 23 December 1999) of
Article 7 of the Law on the Amount, Sources, Terms and
Procedure of Payment of Compensation for the Real Property
Bought Out by the State, and on the Guarantees and Preferences
Which are Provided For in the Law on the Restoration of
Citizens' Rights of Ownership, as well as Paragraph 1 (wording
of 14 October 2003) of Article 7 and the provision "the
monetary compensation shall be paid <...> under procedure and
terms established by the Government" of Paragraph 2 (wording of
14 October 2003) of Article 7 of the Law on the Amount,
Sources, Terms and Procedure of Payment of Compensation for the
Real Property Bought Out by the State, and on the State
Guarantees and Preferences Which are Provided For in the Law on
the Restoration of Citizens' Rights of Ownership are recognised
as being in conflict with the Constitution by this Ruling of
the Constitutional Court, there appears a duty to the
legislator to respectively amend and/or supplement the Law on
the Amount, Sources, Terms and Procedure of Payment of
Compensation for the Real Property Bought Out by the State, and
on the State Guarantees and Preferences Which are Provided For
in the Law on the Restoration of Citizens' Rights of Ownership
so that its provisions are in compliance with the Constitution.
It needs to be noted that the amendments and/or supplements to
the said law must be made so that the restoration of the rights
of ownership to the existing real property is not disturbed or
stopped and that it should not discontinued: in order that the
state could, properly and in time, fulfil the obligations
undertaken by it, this process has to be consistent and
discontinued.
3. Taking account of the fact that a certain time period
is needed in order to make the changes and/or amendments to the
laws and that the fulfilment of the state financial obligations
to the persons to whom the rights of ownership to the existing
real property are restored is related to the formation of the
State Budget and corresponding redistribution of state
financial resources, this Ruling of the Constitutional Court is
to be officially published in the official gazette Valstybės
žinios on 30 December 2005.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, 56, and
84 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 Paragraph 1 (wording of 23 December
1999) of Article 7 of the Republic of Lithuania Law on the
Amount, Sources, Terms and Procedure of Payment of Compensation
for the Real Property Bought Out by the State, and on the
Guarantees and Preferences Which are Provided For in the Law on
the Restoration of Citizens' Rights of Ownership was in
conflict with Paragraphs 1 and 2 of Article 5, Paragraphs 1 and
2 of Article 23, and Paragraph 2 of Article 128 of the
Constitution of the Republic of Lithuania as well as the
constitutional principles of separation of powers and of a
state under the rule of law.
2. To recognise that Paragraph 1 (wording of 14 October
2003) of Article 7 of the Republic of Lithuania Law on the
Amount, Sources, Terms and Procedure of Payment of Compensation
for the Real Property Bought Out by the State, and on the State
Guarantees and Preferences Which are Provided For in the Law on
the Restoration of Citizens' Rights of Ownership is in conflict
with Paragraphs 1 and 2 of Article 5, Paragraphs 1 and 2 of
Article 23, and Paragraph 2 of Article 128 of the Constitution
of the Republic of Lithuania as well as the constitutional
principles of separation of powers and of a state under the
rule of law.
3. To recognise that the provision "the monetary
compensation shall be paid <...> under procedure and conditions
established by the Government" of Paragraph 2 (wording of 23
December 1999) of Article 7 of the Republic of Lithuania Law on
the Amount, Sources, Terms and Procedure of Payment of
Compensation for the Real Property Bought Out by the State, and
on the Guarantees and Preferences Which are Provided For in the
Law on the Restoration of Citizens' Rights of Ownership to the
Existing Real Property to the extent that it does not establish
the criteria under which the Government could establish the
terms (periodicity) of the payment of the portions of the
allocated monetary compensation was in conflict with Paragraphs
1 and 2 of Article 5, Paragraphs 1 and 2 of Article 23, and
Paragraph 2 of Article 128 of the Constitution of the Republic
of Lithuania as well as the constitutional principles of
separation of powers and of a state under the rule of law.
4. To recognise that the provision "the monetary
compensation shall be paid <...> under procedure and terms
established by the Government" of Paragraph 2 (wording of 14
October 2003) of Article 7 of the Republic of Lithuania Law on
the Amount, Sources, Terms and Procedure of Payment of
Compensation for the Real Property Bought Out by the State, and
on the State Guarantees and Preferences Which are Provided For
in the Law on the Restoration of Citizens' Rights of Ownership
to the Existing Real Property to the extent that it does not
establish the criteria under which the Government could
establish the terms (periodicity) of the payment of the
portions of the allocated monetary compensation is in conflict
with Paragraphs 1 and 2 of Article 5, Paragraphs 1 and 2 of
Article 23, and Paragraph 2 of Article 128 of the Constitution
of the Republic of Lithuania as well as the constitutional
principles of separation of powers and of a state under the
rule of law.
5. To recognise that Paragraph 2 (wording of 23 December
1999) of Article 7 of the Republic of Lithuania Law on the
Amount, Sources, Terms and Procedure of Payment of Compensation
for the Real Property Bought Out by the State, and on the
Guarantees and Preferences Which are Provided For in the Law on
the Restoration of Citizens' Rights of Ownership to the
Existing Real Property to the extent that it established new
terms until which one had to have finished the monetary
compensation for the real property bought out by the state,
i.e. the term "until 1 January 2009" established in Item 1, the
term "until 1 January 2011" established in Item 2, and the
terms "until 1 August 2003" and "until 1 January 2007"
established in Item 3 was not in conflict with Article 29 of
the Constitution of the Republic of Lithuania.
6. This ruling of the Constitutional Court is to be
officially published in the official gazette Valstybės žinios
on 30 December 2005.
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
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis