Case No. 03/04-15/04-05/06
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF ITEM 1 (WORDING OF 2 APRIL
2002) OF PARAGRAPH 2 OF ARTICLE 5 AND PARAGRAPH 7
(WORDINGS OF 13 MAY 1999 AND 11 DECEMBER 2001) OF
ARTICLE 16 OF THE REPUBLIC OF LITHUANIA LAW ON THE
RESTORATION OF THE RIGHTS OF OWNERSHIP OF CITIZENS
TO THE EXISTING REAL PROPERTY WITH THE CONSTITUTION
OF THE REPUBLIC OF LITHUANIA
5 July 2007
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 hearingDaiva Pitrėnaitė,
in the presence of the representatives of the Seimas of the
Republic of Lithuania, the party concerned, who were Antanas
Bosas, Gintaras Šileikis and Valdemar Tomaševski (all these
persons are Members of the Seimas) and Darius Karvelis, a senior
advisor of the Seimas Committee on Environment Protection,
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, in its public
hearing on 27 June 2007 heard case No. 03/04-15/04-05/06
subsequent to the following:
1) the petition of the Klaipėda Regional Administrative
Court, a petitioner, requesting to investigate whether Paragraph
7 (wording of 13 May 1999) of Article 16 of the Republic of
Lithuania Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property to the extent that it
provides that land and forest in state parks and state reserves
shall be given back only to the citizens who reside in the region
in which a state park or state reserve is situated, by
respectively assigning to the ownership a plot of land or forest
of the value equal to the one possessed previously, is not in
conflict with Articles 18, 29 and 32 of the Constitution of the
Republic of Lithuania (petition No. 1B-01/2004);
2) the petition of the Šiauliai Regional Administrative
Court, a petitioner, requesting to investigate whether Paragraph
7 (wording of 11 December 2001) of Article 16 of the Republic of
Lithuania Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property to the extent that it
provides that land, forest or water bodies in state parks and
state reserves shall without payment be assigned to ownership in
an area of land, forest or water body of equal value, without
parcelling out the plot into parts, except land of an individual
farm, only to those citizens who use land for an individual farm
in these territories or who, on 17 August 2001, resided and
possessed by right of ownership residential houses or flats,
parts thereof in a state park and state reserve, and in villages
and small towns adjoining them, is not in conflict with Article
29 of the Constitution of the Republic of Lithuania and with the
principle of a state under the rule of law which is, according to
the petitioner, consolidated in the Preamble to the Constitution
of the Republic of Lithuania (petition No. 1B-14/2004);
3) the petition of the Vilnius Regional Administrative
Court, a petitioner, requesting to investigate whether Item 1
(wording of 2 April 2002) of Paragraph 2 of Article 5 of the
Republic of Lithuania Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property to the extent
that it provides that the area of the vacant (non-built-up) land
given back in kind shall be reduced to the size of a plot of land
of one hectare, provided that plots of land are designed on it,
which are being transferred without payment to citizens for
individual construction under Item 3 of Paragraph 2 of this
article and they cannot be designed within other territories of
the town due to the lack of vacant (non-built-up) land in this
town, is not in conflict with Paragraph 3 of Article 23 of the
Constitution of the Republic of Lithuania (petition No. 1B-05/
2006).
By the 27 September 2006 decision of the Constitutional
Court of the Republic of Lithuania, petition No. 1B-01/2004 of
the Klaipėda Regional Administrative Court, petition No. 1B-14/
2004 of the Šiauliai Regional Administrative Court and petition
No. 1B-05/2006 of the Vilnius Regional Administrative Court were
joined into one case and it was given reference No. 03/04-15/04-
05/06.
The Constitutional Court
has established:
I
1. The Klaipėda Regional Administrative Court, a
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 whether Paragraph 7 (wording of 13 May 1999) of
Article 16 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (hereinafter
also referred to as the Law) to the extent that it provides that
land and forest in state parks and state reserves shall be given
back only to the citizens who reside in the region in which a
state park or state reserve is situated, by respectively
assigning to the ownership a plot of land or forest of the value
equal to the one possessed previously, is not in conflict with
Articles 18, 29 and 32 of the Constitution (petition No. 1B-01/
2004).
2. The Šiauliai Regional Administrative Court, a
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 Paragraph 7 (wording of 13 May 1999) of Article 16 of
the Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property to the extent that it provides that
land, forest or water bodies in state parks and state reserves
shall without payment be assigned to ownership in an area of
land, forest or water body of equal value, without parcelling out
the plot into parts, except land of an individual farm, only to
those citizens who use land for an individual farm in these
territories or who, on 17 August 2001, resided and possessed by
right of ownership residential houses or flats, parts thereof in
a state park and state reserve, and in villages and small towns
adjoining them, is not in conflict with Article 29 of the
Constitution and with the principle of a state under the rule of
law which is, according to the petitioner, consolidated in the
Preamble to the Constitution (petition No. 1B-14/2004).
3. The Vilnius Regional Administrative Court, a 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
Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of
the Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property to the extent that it provides that
the area of the vacant (non-built-up) land given back in kind
shall be reduced to the size of a plot of land of one hectare,
provided that plots of land are designed on it, which are being
transferred without payment to citizens for individual
construction under Item 3 of Paragraph 2 of this article and they
cannot be designed within other territories of the town due to
the lack of vacant (non-built-up) land in this town, is not in
conflict with Paragraph 3 of Article 23 of the Constitution
(petition No. 1B-05/2006).
II
1. The petition of the Klaipėda Regional Administrative
Court, a petitioner, is grounded on the following arguments.
The constitutional rights and freedoms are to be treated by
taking account of Article 18 of the Constitution, which
consolidates the innate nature of human rights and freedoms. If
the limitations (which are established by laws or other legal
acts) of the constitutional rights lack clear legal
substantiation, they should be recognised to be in conflict with
the Constitution. Laws prohibit or limit such activity in state
parks, which might inflict harm on the protected complexes and
objects, as well as recreational resources. The aim and purpose
of such limitation is understandable. However, according to the
Klaipėda Regional Administrative Court, a petitioner, the
limitation of the circle of the subjects who have the right to
receive gratis a land plot as ownership, which is of the value
equal to the one possessed previously in a state park, by
indicating neither the aim, nor the purpose of the said
limitation, should not be recognised as grounded. The legal
regulation established in Paragraph 7 (wording of 13 May 1999) of
Article 16 of the Law limits, by indicating neither the aim, nor
the purpose of such limitation, the circle of the subjects who
have the right to restore the rights of ownership in a state
reserve or a state park in equivalent kind. Thus, in the opinion
of the Klaipėda Regional Administrative Court, a petitioner, the
human rights and freedoms are groundlessly limited and the innate
nature of the rights and freedoms entrenched in Article 18 of the
Constitution is disregarded. In addition, such legal regulation
links the restoration of the rights of ownership with the
features of the subjects of the rights, since the rights of
ownership are restored to the persons who reside in the area in
which the state park or the state reserve is situated, while
this, in the opinion of the Klaipėda Regional Administrative
Court, a petitioner, violates the principle of equal rights,
which is entrenched in Article 29 of the Constitution, as well as
the constitutional principle of a state under the rule of law. In
the opinion of the Klaipėda Regional Administrative Court, a
petitioner, the disputed legal regulation also limits the right
of a person freely to choose the place of residence, which is
consolidated in Article 32 of the Constitution, since a conflict
is created between the right to freely choose the place of
residence and the right to possess property: the right of the
person to choose the place of residence, according to the
petitioner, " is limited according to the place of the land plot
that he is willing to receive as ownership", therefore, a person,
while implementing his one constitutional right, looses an
opportunity to implement another constitutional right.
2. The petition of the Šiauliai Regional Administrative
Court, a petitioner, is grounded on the following arguments.
Before 11 December 2001, when Paragraph 7 of Article 16 of
the Law was amended, the right to restore the rights of ownership
to land by a land plot in state parks and reserves of the value
equal to the one possessed previously was related with the
condition that the aspirant resided in the territory of the state
park, the state reserve, or in the adjoining territory. Such
legal regulation created an expectation to the citizens that
provided they met the conditions established in the law, they
would be assigned, under procedure and conditions established in
the law, a land plot in the state park or reserve in equivalent
kind. However, under Paragraph 7 (wording of 11 December 2001) of
Article 16 of the Law, different, more difficult requirements
were established for implementation of this right to the citizens
who seek to restore the rights of ownership in state parks and
state reserves by means of assigning a plot of land or forest of
the value equal to the one possessed previously. In the opinion
of the Šiauliai Regional Administrative Court, a petitioner, such
legal regulation whereby upon the beginning of legal regulation
of the same contents new requirements are established violates
the principle of equal rights entrenched in Article 29 of the
Constitution as well as the constitutional principle of a state
under the rule of law.
3. The petition of the Vilnius Regional Administrative
Court, petitioner, is based on the following arguments.
After it was established in Item 1 (wording of 2 April
2002) of Paragraph 2 of Article 5 of the Law that "the area of
the vacant (non-built-up) land given back in kind shall be
reduced to the size of a plot of land of one hectare, provided
that plots of land are designed on it, which are being
transferred without payment to citizens for individual
construction under Item 3 of Paragraph 2 of this Article and they
cannot be designed within other territories of the town due to
the lack of vacant (non-built-up) land in this town", one limited
the area of land to which it is permitted to restore the right of
ownership. Such quantitative limitation does not permit to
restore the rights of ownership to the entire vacant and non-
built-up land, to which there is not any concrete need of
society. According to the Vilnius Regional Administrative Court,
a petitioner, it is not permissible to limit the restoration of
the rights of ownership to vacant (non-built-up) land in kind, if
there is not any concrete need of society to that concrete land,
otherwise Paragraph 3 of Article 23 of the Constitution whereby
property may be taken over only for the needs of society
according to the procedure established by law and shall be justly
compensated for is violated.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representatives of the Seimas, the party concerned, who
were the Member of the Seimas A. Bosas and D. Karvelis (who
represented the Seimas, the party concerned, in the part of the
case subsequent to petition No. 1B-14/2004 of the Šiauliai
Regional Administrative Court, a petitioner) and from the Member
of the Seimas V. Tomaševski (who represented the Seimas, the
party concerned, in the part of the case subsequent to petition
No. 1B-05/2006 of the Vilnius Regional Administrative Court, a
petitioner).
1. It is maintained in the explanations of the Member of
the Seimas A. Bosas and D. Karvelis that disputed Paragraph 7
(wording of 13 May 1999) of Article 16 of the Law to the extent
that it provides that land, forest or water bodies in state
parks, except Nemunas Delta Regional Park, and state reserves
shall without payment be assigned to ownership in an area of
land, forest or water body of equal value, without parcelling out
the plot into parts, except land of an individual farm, only to
those citizens who use land for an individual farm in these
territories or who, on 17 August 2001, resided and possessed by
right of ownership residential houses or flats, parts thereof in
a state park and state reserve, and in villages and small towns
adjoining them, is not in conflict with the Constitution. The
position of these representatives of the Seimas, the party
concerned, is based on the following arguments.
The disputed provisions abolished the absolute prohibition
(which had existed for some time until then) to assign to the
owners a land plot in state parks and state reserves which is of
the value equal to the one possessed previously. By this one
sought to restore the balance of the social relationsto preserve
the most valuable territories of this country and, alongside, to
protect the rights of ownership of the residents of those
territories. Such legal regulation did not deny the right of
ownership of the persons, but it only limited the implementation
of this right to the persons who actually do not reside in the
state park of the state reserve, who do not possess a residential
house, flat or part thereof by right of ownership in it and who
do not use the land for individual needs. Thus, the disputed
provisions have provided for only one group of personscitizens,
who reside in or who possess residential houses or flats in a
state park or reserveand they do not consolidate that the
persons of this group implement their rights differently;
therefore, in the opinion of the Member of the Seimas A. Bosas
and D. Karvelis, the constitutional principle of equal rights of
persons is not violated, since it does not deny an opportunity to
regulate the legal status of certain persons, who are in
different situations, in a differentiated manner.
2. It is maintained in the explanations of the
representative of the Seimas, the party concerned, the Member of
the Seimas V. Tomaševski that Item 1 (wording of 2 April 2002) of
Paragraph 2 of Article 5 of the Law to the extent that it
provides that the area of the vacant (non-built-up) land given
back in kind shall be reduced to the size of a plot of land of
one hectare, provided that plots of land are designed on it,
which are being transferred without payment to citizens for
individual construction under Item 3 of Paragraph 2 of this
article and they cannot be designed within other territories of
the town due to the lack of vacant (non-built-up) land in this
town, is in conflict with Paragraph 3 of Article 23 of the
Constitution.
IV
1. At the Constitutional Court hearing, representatives of
the Seimas, the party concerned, who were A. Bosas and V.
Tomaševski, Members of the Seimas, as well as D. Karvelis,
virtually reiterated the arguments presented in their written
explanations.
2. At the Constitutional Court hearing, a representative of
the Seimas, the party concerned, who was G. Šileikis, a Member of
the Seimas, presented his explanations.
3. At the Constitutional Court hearing, representatives of
the Seimas, the party concerned, who were A. Bosas, G. Šileikis,
and V. Tomaševski, Members of the Seimas, inter alia held that
the legal regulation of the restoration of the rights of
ownership to the existing real property has been amended many a
time; this determined the inconsistency, discrepancy and
different treatment of provisions of corresponding legal acts.
4. At the Constitutional Court hearing the following
specialists took the floor: S. Staliūnas, Director of the Land
Management Department of the National Land Service under the
Ministry of Agriculture, and J. Liaskovskaja, Head of the Law
Division of the National Land Service under the Ministry of
Agriculture.
The Constitutional Court
holds that:
I
1. In the constitutional justice case at issue the
compliance of the articles (parts thereof) of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property with the Constitution is investigated.
2. Since 1994 the Constitutional Court has investigated in
many aspects into the compliance of the legal acts (inter alia
laws), which regulate the relations of the restoration of the
rights of ownership, with the Constitution in a great many of
constitutional justice cases. The Constitutional Court acts have
formulated a broad official constitutional doctrine of
restitutionthe restoration of the rights of ownership of
citizens to the existing real property. It is grounded on the
following principled provisions, which have been stated many a
time.
After the occupation government, in 1940 and later,
nationalised and in other unlawful ways disseized residential
houses, parts thereof, flats, land, forests, water bodies and
other private property, the human innate right itself to possess
private property was denied. On the grounds of such arbitrary
acts of the occupation government could not appear, nor did
appear any lawful state or public property, since no law (right)
can appear on the basis of unlawfulness, thus the property
disseized from the people is to be regarded only as property
which is in fact managed by the state. When, on 15 November 1990,
the Supreme Council adopted the principled decision that it is
necessary to restore the rights of ownership, it was held that
the continuity of the rights of ownership of citizens of
Lithuania is unquestionably recognised, that citizens of
Lithuania have the right to retrieve in kind, within the limits
and under procedure defined by the law, the property that had
belonged to them, while in case there are no possibilities to
retrieve it, then to receive compensation for it. The provision
that in case there are no possibilities to retrieve the property
in kind, then compensation must be assigned, is not in conflict
with the principles of the inviolability of property and
protection of the right of ownership, since fair compensation
also ensures the restoration of the rights of ownership, however,
it is important that the conditions which are established by the
law and which regulate the relations of the restitution, due to
which the property cannot be retrieved in kind, be in line with
the constitutional provisions of protection of ownership.
It was impossible to restore the denied rights of ownership
by invoking the laws that were valid at the time when the said
principled decision was adopted to restore the rights of
ownership. While regulating the restoration of the denied rights
of ownership, it was necessary to take account of the fact that
during the years of occupation, other property, social and
economic relations of people came into being, that there appeared
other objective circumstances due to which it was impossible to
completely restore the rights of ownership (to go back to status
quo ante). Therefore, in the Law "On the Procedure and Conditions
of Restoration of the Rights of Ownership to the Existing Real
Property" adopted by the Supreme Council on 18 June 1991, one
chose not restitutio in integrum, but limited restitution; such
choice was determined, among other factors, by the extent of the
restoration of the rights of ownership and the limited material
and financial capabilities of the state. This law (with
subsequent amendments and supplements), under which the
restoration of the rights of ownership were begun, was a special
(ad hoc) law designed to regulate the restitution relations and
the restoration of the rights of ownership; such its character
was determined by the following: it was applied not to all
property relations, but only to those which appeared due to the
restoration of the rights of ownership to the existing real
property; it was applied not to all former owners and successors
to their rights, but only to those who met the conditions
established in this law; the restoration of the rights of
ownership was executed not under the norms of civil law, but only
under the procedure established in this law.
3. The Law "On the Procedure and Conditions of Restoration
of the Rights of Ownership to the Existing Real Property" adopted
by the Supreme Council on 18 June 1991 was amended and
supplemented more than once.
4. The process of restitution was temporarily suspended
from 22 January 1997 to 8 July 1997, subsequent to Article 1 of
the Republic of Lithuania Provisional Law on the Suspension of
the Validity of the Law "On the Procedure and Conditions of
Restoration of the Rights of Ownership to the Existing Real
Property" adopted by the Seimas on 16 January 1997 in which it
was established that the validity of the Law "On the Procedure
and Conditions of Restoration of the Rights of Ownership to the
Existing Real Property" shall be temporarily suspended until the
"adoption of a new law".
The constitutionality of this legal regulation has been
disputed at the Constitutional Court. On 13 November 1997, having
considered a petition of a group of Members of the Seimas, the
petitioner, requesting to investigate whether the Provisional Law
on the Suspension of the Validity of the Law "On the Procedure
and Conditions of Restoration of the Rights of Ownership to the
Existing Real Property" was not in conflict with Articles 23,
106, 109, 114, and 145 of the Constitution, the Constitutional
Court adopted the Decision "On the request of a group of Seimas
members to investigate if the Provisional Law on the Suspension
of the Validity of the Republic of Lithuania Law 'On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property' is in compliance with
the Constitution of the Republic of Lithuania", whereby, taking
account of the fact that on 1 July 1997 the Seimas had passed the
Republic of Lithuania Law on the Restoration of the Rights of
Ownership to the Existing Real Property Item 3 of Article 22
whereof provides that upon entry into force of this law, the
Provisional Law on the Suspension of the Validity of the Republic
of Lithuania Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" shall become null and void, the instituted legal
proceedings were dismissed. Alongside, it needs to be noted that,
as the Constitutional Court held in the said decision,
"suspension of validity of laws is not characteristic of law-
making and, as a rule, is linked with situations pointed out in
the Constitution". It needs to be mentioned that such a situation
is provided for in Paragraph 4 of Article 106 of the Constitution
which provides that "the presentation by the President of the
Republic for the Constitutional Court or the resolution of the
Seimas asking for an investigation into the conformity of an act
with the Constitution shall suspend the validity of the act".
The quoted provision of the official constitutional
doctrine inter alia means that the Constitution does not permit
that the legislator adopt the laws whereby the validity of valid
laws is suspended; that as long as the law is valid it must be
applied; that in case it is necessary not to apply a law (parts
thereof), one must recognise that it (parts thereof) is no longer
valid, but not that the validity of that law (parts thereof) is
suspended. On the other hand, the Seimas can establish as from
when a law, which is adopted by him and which has come into
force, is to be applied, and that the date of the entry into
effect of the law and that of its application might not
necessarily coincide (Constitutional Court ruling of 24 December
2002).
5. The Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property adopted by the Seimas on 1
July 1997 came into force on 9 July 1997. It needs to be noted
that although the title of this law is different from the law
that used to regulate the restoration of the rights of ownership
previously, i.e. the Law "On the Procedure and Conditions of
Restoration of the Rights of Ownership to the Existing Real
Property", it regulates the relations of the same character, i.e.
those of restitution. The Preamble to the Law provides that "the
rights of ownership acquired by the citizens of the Republic of
Lithuania before the occupation are not revoked and have
continuity", that "the Constitution <
> adopted by the will of
citizens of the Republic of Lithuania in 1992, guarantees and
defends the rights and property of the State and its citizens",
and that "the restoration of continuation of the rights of
ownership is based on the provision of the 18 June 1991 Law of
the Republic of Lithuania 'On the Procedure and Conditions of
Restoration of the Rights of Ownership to the Existing Real
Property'the existing real property shall be returned to
citizens of the Republic of Lithuania, and in the event it is
impossible to do so, they shall be compensated properly". As well
as the previously valid the Law "On the Procedure and Conditions
of Restoration of the Rights of Ownership to the Existing Real
Property", the Law on the Restoration of the Rights of Ownership
of Citizens to the Existing Real Property (also with subsequent
amendments and supplements) is a special (ad hoc) law designed to
regulate the relations of restitution and to implement the
restoration of the rights of ownership; it must be applicable as
long as the restoration of the rights of ownership is taking
place, while when the restitution is over, it will become
senseless and will have to be recognised as no longer valid.
6. After the rights of ownership were begun to be restored
by the Law "On the Procedure and Conditions of Restoration of the
Rights of Ownership to the Existing Real Property", there
appeared a legitimate expectation to citizens that they would be
able to restore the rights of ownership to the existing real
property under the conditions and procedure established by the
law, while the state undertook the constitutional obligation to
execute (continue) the started restitution until the rights of
ownership to the existing property will be restored, under the
conditions and procedure established in the law, to all citizens
who have the right to restore the rights of ownership. The said
legitimate expectation of citizens (that that the rights of
ownership to the existing real property will be restored to them
under the conditions and procedure established by the law) is
defended and protected by the Constitution, which came into force
on 2 November 1992.
7. Protection of legitimate expectations is one of the
elements of the principle of a state under the rule of law, which
is consolidated in the Constitution. It inter alia implies that
the state is under obligation to ensure the certainty and
stability of legal regulation, to protect the rights (as well as
the acquired rights) of the subjects of legal relations, and to
respect legitimate interests. In its rulings of 4 March 2003, 4
July 2003, and 3 December 2003, one of the elements of the
principle of legitimate expectations is the protection of rights
which are acquired under the Constitution as well as laws and
other legal acts which are not in conflict with the Constitution.
It was also held in the Constitutional Court ruling of 13
December 2004 that the Constitution generally does not prevent
from protecting and defending in certain special cases also such
acquired rights of the person arising from the legal acts
recognised later as being in conflict with the Constitution
(substatutory legal actsas being in conflict with the
Constitution and/or the laws), which, if not defended or
protected, would result in greater harm to the person, other
persons, society or the state, than the harm inflicted in case of
total non-defence or non-protection or partial defence or
protection of the said rights. When deciding whether the acquired
rights gained by the person during the period of validity of the
legal act which was recognised later as being in conflict with
the Constitution (substatutory legal actsas being in conflict
with the Constitution and/or the laws) are to be protected and
defended or not (and if so, to what extent), in each case it is
necessary to find out whether in case of failure to protect and
defend such acquired rights, other values protected by the
Constitution would not be violated, and whether the balance
between the values entrenched in and protected and defended by
the Constitution would not be disturbed. However, it needs to be
emphasised that the Constitution does not protect and defend the
acquired rights of persons which are privileges in their essence;
the protection and defence of privileges would mean that the
constitutional principle of equal rights of persons and the
constitutional principle of justice, the imperative of a
harmonious civil society enshrined in the Constitution, and,
therefore, the constitutional principle of a state under the rule
of law, are violated (Constitutional Court ruling of 13 December
2004).
The principle of protection of legitimate expectations
implies a duty of the state as well as that of the institutions
implementing state power as well as other state institutions to
keep the obligations undertaken by the state. This principle also
means the protection of acquired rights, i.e. persons have the
right to reasonably expect that their rights which have been
acquired according to valid laws and other legal acts, which are
not in conflict with the Constitution, will be retained within
the established time and will be implemented in reality.
8. From the very beginning of the restitution, i.e. since
1991, the legal regulation of the legal relations of restoration
of citizens' rights to the existing real property has been
amended more than once; on the one hand, by the amendments and
supplements of the legal acts one expanded the circle of the
persons to whom the rights of ownership could be restored and the
list of the property to which the rights of ownership cold be
restored; on the other hand, sometimes the circle of the persons
to whom the rights of ownership to corresponding property could
be restored used to be narrowed by continuing to create different
conditions under which the rights of ownership could be restored.
It needs to be emphasised that the instability of the legal
regulation of the restitution relations greatly determined the
lack of legal certainty: the subjects of the legal relations, who
acquired an expectation at a certain time period that they would
be able to restore the rights of ownership to corresponding
property under the conditions and procedure established in the
law, quite often find themselves in a situation, where they are
not certain whether this expectation will actually be implemented
due to the continually changing legal regulation.
In this context it needs to be noted that at the
Constitutional Court hearing the representatives of the Seimas,
the party concerned, who were A. Bosas, G. Šileikis and V.
Tomaševski, Members of the Seimas, also stated that the process
of the restitution had been inconsistent and contradictory due to
the fact that the legal regulation of the restoration of the
rights of ownership to the existing real property had been
amended more than once and that the corresponding provisions of
legal acts used to be treated differently.
9. It needs to be emphasised specially that the
constitutional imperatives of a harmonious, just and open civil
society, the constitutional requirements of protection of legal
certainty, legal security, and legitimate expectations imply that
the begun restitution process may not last groundlessly long;
thus, the amendments of corresponding relations of the legal
regulation cannot be such so that they would create preconditions
to procrastinate this process for an unreasonably long period.
Due to the unreasonably long time during which the rights of
ownership to the existing real property are restored, the essence
of the restitution institute itself can be distorted or even
denied, the constitutional rights of ownership as well as other
rights of the person can be violated and the trust of the people
in the state and law can be undermined.
II
1. Under Item 1 of Paragraph 2 of Article 5 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, which was adopted by the Seimas on 1 July
1997 and which came into force on 9 July 1997, the rights of
ownership to the land which, prior to 1 June 1995, was situated
within the territory that was, in the prescribed manner,
attributed to towns used to be restored "by transferring without
payment into the ownership of the citizens who have residential
houses or other structures by right of ownership, a plot of land
in use by them, the boundaries whereof are established in the
territorial planning documents, adjoining these structures or a
plot of land designated for another purpose (kitchen garden,
garden and other), established in the territorial planning
documents, except in the town of Neringa, but not exceeding 0.2
hectares in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys,
Alytus, Marijampolė, Druskininkai, Palanga, Birštonas, and not
exceeding 0.3 hectares in other towns. When a utilised plot of
land, adjoining structures, lies within the land held by right of
ownership, the whole area of this utilised plot of land adjoining
the structures shall be transferred into the right of ownership
without payment, regardless of the drawn up territorial planning
documents of that locality, but not exceeding 1 hectare".
Paragraph 6 (wording 1 July 1997) of Article 16 of the Law
used to provide that "land and forest in state parks and state
reserves shall be given back by transferring into ownership a
plot of land or a plot of forest respectively, which must be of
equal value to the one held previously, only to the citizens who
reside within these territories".
2. The Law has been amended and/or supplemented more than
once, inter alia Articles 5 and 16 (wording of 1 July 1997)
thereof have been amended as well.
3. On 13 May 1999, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 2, 4, 5, 10,
12, 13, 15, 16, 18, 20, 21 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property,
which came into force on 2 June 1999.
3.1. By Article 3 of the said law one amended and
supplemented Paragraph 2 (wording of 1 July 1997) of Article 5 of
the Law and set it forth in a new wording.
Under Item 1 (wording of 13 May 1999) of Paragraph 2 of
Article 5 of the Law, the rights of ownership to the land which,
prior to 1 June 1995, was situated within the territory that was,
in the prescribed manner, attributed to towns shall be restored:
<
> "by transferring without payment into the ownership of the
citizens who have residential houses or other structures by right
of ownership, a plot of land in use by them, the boundaries
whereof are established in the territorial planning documents,
adjoining these structures or a plot of land designated for
another purpose (kitchen garden, garden and other), established
in the territorial planning documents, except within the
territory of Curonian Spit National Park, but not exceeding 0.2
hectares in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys,
Alytus, Marijampolė, Druskininkai, Palanga, Birštonas, and not
exceeding 0.3 hectares in other towns. When a utilised plot of
land, adjoining structures, lies within the land held by right of
ownership and its area exceeds 0.2 hectares or 0.3 hectares
respectively, upon the citizen's request, this larger utilised
plot of land adjoining the structures shall be transferred into
the right of ownership without payment, as well as a remaining,
free (without constructions) area of the plot of land possessed
by the owner which adjoins the said utilised plot of land (when
there are several citizens enjoying the right to restore the
right of ownership to such landupon their request, this larger
utilised, free (without constructions), remaining area of the
plot of land adjoining the structures shall be transferred
without payment into joint ownership or into the ownership of the
owner of the structures), regardless of the drawn-up territorial
planning documents of that locality, but not exceeding 1 hectare
of total area in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys,
Alytus, Marijampolė, Druskininkai, Palanga, Birštonas and not
exceeding 1.5 hectares of total area in other cities".
3.2. Under Article 8 of the Law on Amending and
Supplementing Articles 2, 4, 5, 10, 12, 13, 15, 16, 18, 20, 21 of
the Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property, Paragraph 6 (wording 1 July 1997)
of Article 16 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property became
Paragraph 7 (Paragraph 2), while the said paragraph was amended
and set forth in a new wording (Paragraph 3).
It was established in Paragraph 7 (wording 13 May 1999) of
Article 16 of the Law that "land and forest in state parks and
state reserves shall be given back by transferring into ownership
a plot of land or a plot of forest respectively, which must be of
equal value to the one held previously, only to the citizens who
reside in the region in which the state park or state reserve is
situated".
4. On 2 April 2001, subsequent to the petition of a group
of Members of the Seimas, the petitioner, requesting to
investigate if Paragraphs 2, 3, 4, and 5 of Article 5, Item 3 of
Article 12 of the Law on the Restoration of Citizens' Rights of
Ownership to the Existing Real Property were in compliance with
the common provisions of the same law, Articles 23, 29, 46 and 47
of the Constitution, Articles 15 and 21 of the Republic of
Lithuania Law on Land, Article 8 of the Constitutional Law on the
Subjects, Procedure, Terms, Conditions and Restrictions of the
Acquisition into Ownership of Land Plots Provided for in
Paragraph 2 of Article 47 of the Constitution of the Republic of
Lithuania, and whether the second sentence of Paragraph 3 of
Article 16 and Item 5 of Paragraph 9 of Article 16 of the
Republic of Lithuania Law on the Restoration of Citizens' Rights
of Ownership to the Existing Real Property were in compliance
with Paragraph 3 of Article 23 and Article 29 of the
Constitution, the Constitutional Court adopted the Ruling "On the
compliance of Paragraphs 2, 3, 4, and 5 of Article 5, Item 3 of
Article 12 and Paragraph 3 of Article 16 as well as Item 5 of
Paragraph 9 of the same article of the Republic of Lithuania Law
on the Restoration of Citizens' Rights of Ownership to the
Existing Real Property with the Constitution of the Republic of
Lithuania and on the compliance of Paragraphs 2, 3, 4, and 5 of
Article 5 as well as Item 3 of Article 12 of the same law with
Article 8 of the Constitutional Law on the Subjects, Procedure,
Terms, Conditions and Restrictions of the Acquisition into
Ownership of Land Plots Provided for in Paragraph 2 of Article 47
of the Constitution of the Republic of Lithuania" in which it
ruled that Paragraph 2 of Article 5 of the Law to the extent that
it provides that vacant (not built over) land is not returned in
kind if the citizen does not have a residential house or another
structure adjoining the land previously held by him by right of
ownership even though there is not any particular need of society
for this vacant (not built over) land, and Item 3 of Article 12
of the same law to the extent that it provides that the portion
of land which remains after the utilised plot of land adjoining
the residential house or other structure has been transferred to
the citizen without payment is bought out even though there is
not any particular need of society for this vacant (not built
over) land conflicted with Paragraph 3 of Article 23 of the
Constitution.
5. The Law (wording of 1 July 1997 with the amendments and
supplements made by the Law on Amending and Supplementing
Articles 2, 4, 5, 10, 12, 13, 15, 16, 18, 20, 21 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property which was adopted by the Seimas on 1 July
1997) was amended and/or supplemented by the following: the
Republic of Lithuania Law on Supplementing Article 4 of the Law
on the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, which was adopted by the Seimas on 4
January 2000 and which came into force on 19 January 2000; the
Republic of Lithuania Law on Amending Article 4 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, which was adopted by the Seimas on 18
July 2000 and which came into force on 31 July 2000; the Republic
of Lithuania Law on Supplementing Article 2 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, which was adopted by the Seimas on 10
October 2000 and which came into force on 25 October 2000; the
Republic of Lithuania Law on Amending and Supplementing Article
13 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property, which was adopted by the
Seimas on 10 April 2001 and which came into force on 1 July 2001.
Item 1 (wording of 13 May 1999) of Paragraph 2 of Article 5
and Paragraph 7 (wording of 13 May 1999) of Article 16 of the Law
were not amended and/or supplemented by these laws.
6. On 3 August 2001, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 2, 4, 6, 10,
12, 16 and 21 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property, which came
into force on 17 August 2001. By Paragraph 2 of Article 6 of the
said law one amended Paragraph 7 (wording of 13 May 1999) of
Article 16 of the Law.
6.1. It was established in Paragraph 7 (wording of 3 August
2001) of Article 16 of the Law that "land and forest in state
parks and state reserves shall not be given back by transferring
into ownership a plot of land or a plot of forest respectively,
as that of equal value to the one held previously".
Thus, one abolished the opportunity that had existed until
then to get land or forest in state parks and state reserves as
ownership of equal value to the land or forest held previously in
another location or to the land or forest held previously in
other part of the territory of the state parks or state reserves.
6.2. By Article 1 of the Law on Amending and Supplementing
Articles 2, 4, 6, 10, 12, 16 and 21 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property one prolonged the terms for submission of the
applications requesting to restore the rights of ownership: it
was established that such applications could be submitted till 31
December 2001. Later the terms for submission of the applications
requesting to restore the rights of ownership were not prolonged.
7. On 11 December 2001, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 12, 13 and
16 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property which came into force on
28 December 2001. By Article 3 of this law Paragraph 7 (wording
of 3 August 2001) of Article 16 of the Law was amended and set
forth in a new wording.
Paragraph 7 (wording of 11 December 2001) of Article 16 of
the Law, the compliance of the provisions of which with the
Constitution is disputed in the constitutional justice case at
issue, provides:
"Land, forest or water bodies in state parks, except
Nemunas Delta Regional Park, and state reserves shall without
payment be assigned to ownership in an area of land, forest or
water body of equal value, without parcelling out the plot into
parts, except land of an individual farm, only to those citizens
who use land for an individual farm in these territories or who,
prior to 17 August 2001, resided and possessed by right of
ownership residential houses or flats, parts thereof in a state
park and state reserve, and in villages and small towns adjoining
them, as well as to the citizens who resided in these territories
prior to 17 August 2001, whose spouses had a residential house or
a flat, or a part thereof in these territories. Land in Nemunas
Delta Regional Park shall be assigned to ownership in a plot of
land of equal value without parcelling out it into parts, except
land of an individual farm, to those citizens who resided in the
territory of the said regional park, as well as in the Šilutė and
Pagėgiai municipalities. On the basis of land survey plans of the
land reform approved prior to 17 August 2001, land, forest or
water bodies in state parks and state reserves shall be given
back to the citizens who resided and possessed by right of
ownership residential houses or flats, parts thereof in the
region in which a state park or state reserve is situated, by
respectively assigning to the ownership without payment a plot of
land, forest or a water body of the value equal to the one
possessed previously."
8. Later the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property (wording of 1
July 1997 with subsequent amendments and supplements) was amended
and/or supplemented by the following: the Republic of Lithuania
Law on Amending and Supplementing Articles 2, 8, 12, 15, 16, 18,
20 and 21 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property, which was
adopted by the Seimas on 15 January 2002 and which came into
force on 18 January 2002; the Republic of Lithuania Law on
Amending Articles 4 and 12 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property,
which was adopted by the Seimas on 28 March 2002 and which came
into force on 17 April 2002.
The aforementioned laws did not amend and/or supplement
Item 1 (wording of 13 May 1999) of Paragraph 2 of Article 5 and
Paragraph 7 (wording of 11 December 2001) of Article 16 of the
Law.
9. On 2 April 2002, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 5, 12 and 21
of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property, which came into force on
19 April 2002. By Article 1 of this law Paragraph 2 (wording of
13 May 1999) of Article 5 of the Law was set forth in a new
wording.
Under Item 1 (wording of 2 April 2002) of Paragraph 2 of
Article 5 of the Law, the compliance of the provisions of which
with the Constitution is disputed in the constitutional justice
case at issue, the rights of ownership to the land, which was
situated prior to 1 June 1995 within the territory that was
attributed in the prescribed manner to towns, shall be restored
"by giving back in kind to a citizen or citizens the vacant (non-
built-up) land in the former locality by the right of joint
ownership, as well as to a citizen, possessing the buildings by
the ownership right, a plot of land in use by this citizen the
boundaries of which are defined in territorial planning
documents, with the exception of the land attributed under
Article 12 of this Law to the land subject to buying out by the
State, as well as the land a citizen does not wish to be given
back in the former locality. The area of the vacant (non-built-
up) land given back in kind shall be reduced to the size of a
plot of land of one hectare, provided that plots of land are
designed on it, which are being transferred without payment to
citizens for individual construction under Item 3 of Paragraph 2
of this Article and they cannot be designed within other
territories of the town due to the lack of vacant (non-built-up)
land in this town. The plans of vacant (non-built-up) land plots
which are provided for returning in kind at the locality
previously possessed shall be confirmed by municipal councils
under procedure established by the Government".
Thus, the area of town vacant (non-built-up) land to be
returned to citizens may not be bigger than 1 ha, provided that
plots of land are designed on this vacant (non-built-up) land,
which are being transferred without payment to citizens for
individual construction under Item 3 of Paragraph 2 of this
article and they cannot be designed within other territories of
the town due to the lack of vacant (non-built-up) land in this
town.
10. Later the Law (wording of 1 July 1997 with subsequent
amendments and supplements) was amended and supplemented by the
following: the Republic of Lithuania Law on Amending Articles 10
and 21 of the Law on the Restoration of the Rights of Ownership
of Citizens to the Existing Real Property, which was adopted by
the Seimas on 15 October 2002 and which came into force on 25
October 2002; the Republic of Lithuania Law on Amending and
Supplementing the Preamble and Articles 2, 12, 13, 15, 16 and 20
of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property, which was adopted by the
Seimas on 29 October 2002 and which came into force on 22
November 2002; the Republic of Lithuania Law on Amending Article
10 of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property, which was adopted by the
Seimas on 19 June 2003 and which came into force on 30 June 2003;
the Republic of Lithuania Law on Amending and Supplementing
Articles 2, 10, 12, 15, 17, 20 and 21 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, which was adopted by the Seimas on 14
October 2003 and which came into force on 29 October 2003; the
Republic of Lithuania Law on Amending Article 5 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, which was adopted by the Seimas on 23
March 2004 and which came into force on 10 April 2004.
The aforementioned laws did not amend and/or supplement
Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 and
Paragraph 7 (wording of 11 December 2001) of Article 16 of the
Law.
11. On 12 October 2004, the Seimas adopted the Republic of
Lithuania Law on Amending Article 10 of the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, which came into force on 26 October 2004.
Article 1 of the same law left the same term, which was 31
December 2001, to be valid for the applications requesting to
restore the rights of ownership, however, alongside, it was
established that the term for submission of the application may
be renewed for the persons who missed the term due to the reasons
which are recognised as relevant by a court.
12. Later, the Law (wording of 1 July 1997 with subsequent
amendments and supplements) was amended and supplemented by the
following: the Republic of Lithuania Law on Amending Article 21
of the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property, which was adopted by the
Seimas on 26 May 2005 and which came into force on 9 June 2005;
the Republic of Lithuania Law on Amending and Supplementing
Articles 4, 5, 12 and 13 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property,
which was adopted by the Seimas on 16 November 2006 and which
came into force on 21 November 2006.
By Article 2 of the Law on Amending and Supplementing
Articles 4, 5, 12 and 13 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property one
amended and supplemented Item 1 (wording of 2 April 2002) of
Paragraph 2 of Article 5 of the Law and set it forth in a new
wording, however, the provisions disputed by the Vilnius Regional
Administrative Court, a petitioner, were not amended.
The aforesaid laws did not amend and/or supplement
Paragraph 7 (wording of 11 December 2001) of Article 16 of the
Law.
III
1. It has been mentioned that the Constitutional Court acts
have formulated a broad official constitutional doctrine of
restitutionthe restoration of the rights of ownership of
citizens to the existing real property.
In the course of considering whether Item 1 (wording of 2
April 2002) of Paragraph 2 of Article 5 and Paragraph 7 (wordings
of 13 May 1999 and 11 December 2001) of Article 16 of the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property are not in conflict with the Constitution,
the official constitutional doctrine is developed on the grounds
of the provisions formulated in previous constitutional justice
cases.
2. While regulating the relations of the restoration of the
relations of the rights of ownership, the legislator enjoys the
discretion to establish the conditions and procedure for the
restoration of the rights of ownership. While doing so, the
legislator is bound by the Constitution, thus, he must heed the
constitutional principles of the protection of the rights of
ownership, the constitutional striving for an open, just and
harmonious civil society and other constitutional values. In the
Constitutional Court ruling of 4 March 2003 it was held that when
one establishes, by means of laws, the conditions and procedure
of restoration of the rights of ownership, it is necessary to
take account of the changed social, economic, and other
conditions. In the Constitutional Court ruling of 27 October 1998
it was held that in the process of the restoration of the rights
of ownership it is necessary to co-ordinate the interests of the
persons who seek to restore the rights of ownership and the needs
of society, that in the course of restoration of the rights of
some persons it is not permitted to violate the rights of other
persons and that it is impossible to attain justice by
recognizing the interests of only one group or one person and by
denying the interests of others at the same time.
It is permitted that the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
establish that objects of property (which are bought out by the
state) are not returned in kind to the persons who have the right
to the restoration of the rights of ownership; the provision of
the Law 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 (Constitutional Court rulings of
27 May 1994 and 23 August 2005).
In the context of the constitutional justice case at issue,
it needs to be emphasised specially that the legislator, while
enjoying the powers to establish the conditions and procedure for
the restoration of the rights of ownership, alongside has the
powers to establish (of course, without overstepping the
limitations established explicitly and implicitly in the
Constitution) also that in case there is not any possibility to
restore in kind namely the property that used to belong to the
person by right of ownership prior to the unlawful
nationalisation or other unlawful disseizing, the rights of
ownership are restored by other ways, inter alia by granting a
plot of land, forest, or water body of equal value in another
locality, i.e. by granting property, which has never belonged to
that person by right of ownership.
3. While interpreting Article 23 of the Constitution in the
context of the restoration of the rights of ownership, the
Constitutional Court has held that it is impossible to identify
the buying out of the existing real property from the citizens to
whom the right of ownership is restored with the seizure of
property from the owner for the needs of society, that, while
deciding whether the compensation for the existing real property
which has not been returned in kind is a just one, one has to
take account of the fact that it was not the State of Lithuania
that unlawfully nationalised or disseized in other unlawful ways
the property of the owner. The State of Lithuania, while striving
to restore justice in part at least, i.e. to restore the violated
rights of ownership, chose restricted restitution, but not
restitutio in integrum; the restoration of justice when the
owners are compensated for the existing real property which has
not been returned in kind has two sides: it is justice in regard
of the owner as well as the entire society; the unlawful actions
of the occupation government inflicted enormous damage not only
on the owners whose rights of ownership were denied but also on
the whole society and the entire state; while restoring justice
in regard of the owners, one cannot ignore justice in regard of
the entire society whose members are also the owners as well; in
the process of the restoration of the rights of ownership one
must strive for a balance between the persons whose rights are
being restored and the interests of the entire society
(Constitutional Court ruling of 4 March 2003).
4. The Constitution does not prohibit to regulate, by means
of a law, the restoration of the rights of ownership to the
existing real property in a differentiated manner also in the
aspect that the conditions and procedure of the restoration of
the rights of ownership may differ inter alia also according to
the fact as to what kind of ownership (land, forest, water body)
the rights of ownership are restored, as well as according to the
fact in what territory the property to which the rights of
ownership are restored is situated. However, one must heed the
constitutional principle of a state under the rule of law which
includes inter alia the protection of legitimate expectations,
legal certainty and legal security.
Alongside, it needs to be emphasised that although the
constitutional principle of a state under the rule of law implies
the requirements of legal certainty, legal security, protection
of legitimate interests and other requirements inter alia those
raised to the legal regulation of the restitution relations, it
is not permitted to construe the said principle that it,
purportedly, does not permit in general that the legislator,
after it began the restoration of the rights of ownership under
certain conditions, later change these conditions, inter alia
establish new, additional conditions, when by this one seeks to
protect certain constitutional values, to which harm might be
inflicted or conditions for such harm to appear might be created,
if the conditions of the restoration of the rights of ownership
to the existing real property established earlier were not
changed. Quite to the contrary, if it becomes clear that certain
values protected and defended by the Constitution, to which harm
might be inflicted or conditions for such harm to appear might be
created, the legislator not only may, but also must
correspondingly amend the conditions and procedure for the
restoration of the rights of ownership to the existing real
property which were established previously. However, also in such
cases one must heed the constitutional principle of
proportionality under which the applicable measures established
by legal acts must be proportionate to the objective sought,
while the rights of the person cannot be limited more that
necessary to reach the legitimate and generally important as well
as constitutionally grounded objective.
5. In the constitutional justice case at issue inter alia
the provisions of Paragraph 7 (wordings of 13 May 1999 and 11
December 2001) of Article 16 of the Law are disputed regarding
the restoration of the rights of ownership, where a person is
assigned gratis a plot of land, forest or water body which is in
a state park or state reserve and which is of equal value to that
possessed previously.
5.1. Land, forests and water bodies are special objects of
property law, since proper use and protection of land, forests
and water bodies is a condition of survival and development of
the human being and society, and as the basis of the welfare of
the Nation; under the Constitution treats the natural
environment, its fauna and flora, individual objects of nature
and districts of particular value as national values of universal
importance; their protection and securing that natural resources
be used moderately and that they be restored and augmented are a
public interest the guaranteeing of which is a constitutional
obligation of the state (Constitutional Court rulings of 13 May
2005 and 14 March 2006).
5.2. Article 54 of the Constitution provides that the state
shall take care of the protection of the natural environment,
wildlife and plants, individual objects of nature and areas of
particular value and shall supervise a sustainable use of natural
resources, their restoration and increase (Paragraph 1); the
destruction of land and the underground, the pollution of water
and air, radioactive impact on the environment as well as
depletion of wildlife and plants shall be prohibited by law
(Paragraph 2). It also needs to be mentioned that, under
Paragraph 3 of Article 53 of the Constitution, the state and each
person must protect the environment from harmful influences.
The general notion "areas of particular value" of Paragraph
1 of Article 54 of the Constitution implies that certain parts
(areas) of the territory of Lithuania which, due to their
ecological, cultural, historical, scientific and other
significance, differ from other parts (areas) of the territory of
Lithuania, provided this is constitutionally grounded, not only
may but also must be attributed to the category of areas of
particular value. Under the Constitution, the legislator enjoys
the powers and discretion to decide which areas are to be
attributed to the areas of particular value, however, the
attribution of the areas to areas of particular value must be
reasoned. Individual areas may be attributed to areas of
particular value according to the criteria established by legal
acts (taking account of their ecological, cultural, historical,
scientific and other value, etc.).
5.3. In the context of the notion "areas of particular
value", as a general notion, of Paragraph 1 of Article 54 of the
Constitution, it needs to be mentioned that the Constitution does
not prevent usage of other words or formulas in laws and other
legal acts than those used in the text of the Constitution, that
treating the requirement to describe the same phenomena in laws
and other legal acts always in the same words and formulas
unreservedly would mean not only the seeking to artificially
restrict and stop the development of language, inter alia legal
terminology, when not only words (formulas) describing the same
phenomena, which are different from the text of the Constitution,
are used in the laws and other legal acts, but new terms
(formulas) in general, which were not yet created at the time of
drawing the text of the Constitution, but it might also provoke
to correct the text of the Constitution according to the
terminology (words, formulas) entrenched in the laws and other
legal acts also in such cases, when the intervention into the
text of the Constitution, which as the supreme law must be a
permanent act, is not legally necessary (Constitutional Court
rulings of 16 January 2006 and 19 August 2006). Thus the areas of
particular values mentioned in Article 54 of the Constitution may
be named in laws differently, provided due to this the content of
the constitutional notion "areas of particular value" is not
distorted or denied at all.
In the context of the constitutional justice case at issue,
it needs to be noted that certain parts of the territory of
Lithuania are referred to in laws as protected territories. Under
the Republic of Lithuania Law on Protected Territories (wording
of 4 December 2001), protected territories shall mean the land
and/or water areas which have clearly defined boundaries, an
acknowledged scientific, ecological, cultural and other value and
for which a special protection and use regime (procedure) has
been introduced by legal acts (Paragraph 32 of Article 2); also
such territories which are named "state parks" and "state
reserves" are attributed to protected territories: state
(national and regional) parks shall mean the large protected
territories established in the territories which are complex from
the natural, cultural and recreational points of view and are
particularly valuable and whose protection and management is
related to designation of territories' functional and landscape
management zones; "reserves" shall mean the protected territories
established for the preservation of the natural and/or cultural
sites valuable from the scientific or cognitive point of view,
the territorial complexes and objects (properties) of natural and
cultural heritage located therein, landscape and biological
diversity as well as gene pool; preservation of the properties
located in these territories shall be ensured without terminating
economic activities therein (Paragraph 8 of Article 2).
Thus, state parks and state reserves are regarded as
territories of particular value. It needs to be noted that the
notions "state park" and "state reserve" employed in the Law on
Protected Territories (wording of 4 December 2001) do not distort
let alone deny the content of the constitutional notion "areas of
particular value".
5.4. While enjoying the powers to ascribe certain areas to
areas of particular value, the legislator, while taking account
of a special imperishable value of the objects of nature which
are in the territories of special value, their significance and
the necessity to preserve them for posterity, the constitutional
duty that falls upon the state to take care of the preservation
of areas of particular value and rational use thereof, also
enjoys the powers to establish a special regime of the protection
and use of these areas. It was held in the Constitutional Court
ruling of 14 March 2006 that such special legal regime implies
inter alia certain conditions, limitations and prohibitions of
the economic and other activity in these areas, due to which the
landscape, individual objects which are in corresponding areas
can be changed, etc.
Under the Constitution, the state has the duty to take care
also of these natural objects of state significance, which belong
by right of ownership to other persons, but not to the state, and
to secure their protection. This duty of the state cannot be
interpreted as releasing the owners of corresponding natural
objects from a duty to contribute themselves to the preservation
of the said natural objects and to observe the legal regime
established with regard to these natural objects.
Thus, due to the fact that in areas of particular value
natural and other objects can belong by right of ownership to
very varied subjectsthe state, municipalities, as well as legal
and natural personsthe discussed limitations and prohibitions
may be established not only to the state and municipalities, but
also to natural and legal persons. While seeking to secure the
protection of areas of particular value, one can interfere by
such limitations and prohibitions with the rights of ownership of
all owners, including those of private land plots, forests, parks
and water bodies. All said limitations and prohibitions must be
constitutionally grounded, they must not restrict the rights of
the owners and other persons more than it is necessary to achieve
the universally important objectives (Constitutional Court ruling
of 14 March 2006).
6. In the context of the constitutional justice case at
issue, it needs to be noted that the circumstance that the
property to which the rights of ownership are restored is in the
area which is ascribed to areas of particular value, is a
sufficient basis for the legislator to regulate the restoration
of the rights of ownership to such property, by taking account of
inter alia the legal status of the area. It needs to be
emphasised that the legislator, while establishing the conditions
and procedure for the restoration of the rights of ownership to
land, forest and water bodies, which are in areas of particular
value, cannot disregard the imperative arising from the
Constitution to regulate these relations in the manner so that
the protection of the areas of particular value is not
undermined, since, as mentioned, areas of particular value are a
national value of universal significance, it is necessary to
preserve them for posterity, the protection is a public interest
to guarantee which is a constitutional obligation of the state.
7. From the Constitution (inter alia the provision of
Paragraph 2 of Article 128 thereof that the procedure for the
possession, use and disposal of state property shall be
established by law) follows the requirement to treasure state-
owned property, not to waste it and manage it rationally. Under
the Constitution, laws must protect the rights of all owners,
thus including the right of ownership of the state as the
organisation of the entire society. It is not permitted to
establish such legal regulation according to which the property
that belongs to the state by right of ownership would be
possessed, used or disposed of in such a manner so that the
interests or needs of only one social group or individual persons
are satisfied and that this property does not serve the public
interest, the need of society, and the welfare of the nation, or
that this property belonging to the state by right of ownership
would be transferred as ownership to other subjects in order to
satisfy the interests or needs of only one social group or
individual persons, if this does not comply with the need of
society, the public interest, or does not serve the welfare of
the Nation (Constitutional Court ruling of 30 September 2003).
In its rulings the Constitutional Court has held more than
once that on the basis of arbitrary acts of the occupation
government there could not appear, nor there appeared any lawful
state or public property and that the property disseized from
people in such fashion is to be regarded only as property which
is in fact possessed by the state. In such a situation, where the
state in fact temporarily possesses and uses the property, which
does not belong to it by right of ownership, the said property
must also be possessed and used by heeding the same
constitutional requirements as in the possession and usage of
property which belongs to the state by right of ownership.
If the objects of nature which are in areas of particular
value belong by right of ownership to the state, then, regardless
of whether or not they are recognised as objects of state
importance, they may be transferred to ownership of other persons
only in the case (and only in this manner), when this is
constitutionally grounded; inter alia the legal regulation
whereby land, forests, parks and water bodies which are in areas
of particular value and which belong by right of ownership to the
state may be transferred to ownership of certain other subjects
either gratis or for an unreasonably small price, as well as the
legal regulation whereby land, forests, parks and water bodies
which are in areas of particular value and which belong by right
of ownership to the state may be transferred to ownership of
other persons when the rights of ownership is being restored to
them in equivalent kind, i.e. when one transfers to ownership of
the person, who did not have the ownership right to the object
that is in areas of particular valueland, forest, park, or water
bodyprecisely such object in kind, would lack such
constitutional grounds (Constitutional Court ruling of 14 March
2006).
8. In the context of the constitutional justice case at
issue, it needs to be especially emphasised that the legislator,
while enjoying the powers to establish also such a way of the
restoration of the rights of ownership of citizens, where, in
case there is not a possibility to restore in kind the plot of
land, forest or water body which had belonged to the person by
right of ownership prior to the unlawful nationalisation or other
unlawful disseizing, the rights of ownership are restored by
assigning to the person a plot of land, forest or water body
which is in another locality, but which is of equal value to the
former one, however, under the Constitution he cannot establish
any such way of the restoration of the rights of ownership to the
existing real property, where instead of a previously possessed
plot of land, forest or water body in another locality the person
is assigned land, forest or a water body as property of equal
value which, however, is in the areas attributed to the category
of areas of particular value. Such legal regulation would create
legal preconditions for appearance of the qualitative changes in
the areas of particular value, to control which would be very
difficult, and it would not be in line with Article 54, Paragraph
2 of Article 128 of the Constitution and the constitutional
principle of a state under the rule of law.
9. As mentioned, the Constitution does not prohibit to
regulate, by means of a law, the restoration of the rights of
ownership to the existing real property in a differentiated
manner also in the aspect that the conditions and procedure of
the restoration of the rights of ownership may differ inter alia
also according to the fact as to what kind of ownership (land,
forest, water body) the rights of ownership are restored, as well
as according to the fact in what territory the property to which
the rights of ownership are restored is situated, however, one
must heed the constitutional principle of a state under the rule
of law which includes inter alia the protection of legitimate
expectations, legal certainty and legal security.
In the context of the constitutional justice case at issue,
it needs to be noted that the legislator can also establish the
legal regulation whereby in the territory of areas of particular
value (in state parks and state reserves) the person is returned
precisely the land, forest, water body in kind, which had
belonged to him by right of ownership prior to the unlawful
nationalisation or other unlawful disseizing, provided they are
not bough out by the state.
10. In the context of the constitutional justice case at
issue, it needs to be held that there are not any constitutional
arguments which would permit to assert that also such legal
regulation is in general impermissible whereby in the course of
restoration of the rights of ownership to a person, who resides
in the territory of a state park or a state reserve, and who used
to possess land, forest, water body by right of ownership in the
territory of the same state park or state reserve, which,
according to the law, is not permitted to be returned in kind (it
is bought out by the state), is (instead of the formerly
possessed land, forest, water body) assigned a plot of land,
forest, water body respectively of equal value in another part of
that state park or the state reserve. However, such a way of
restoration of the rights of ownership to the existing real
property should not create any legal preconditions for the
appearance of the qualitative changes in the areas of particular
value, to control which would be very difficult (which could
appear, e.g., due to the too active economic or other activity in
the state park or state reserve). Thus, such a way of the
restoration of the rights of ownership to the existing real
property is not impermissible with regard to the persons who used
to possess by right of ownership land, forest, a water body in
the territory of a state park or a state reserve, which,
according to the law, cannot be returned in kind (it is bought
out by the state) and who reside in the territory of the said
state park or the state reserve; such restoration of the rights
of ownership to the said persons should not pose a threat to the
preservation of the state parks or the state reserves as areas of
particular value.
11. The legal regulation whereby a certain plot of land,
forest or a water body in the territory of a state park or a
state reserve is assigned to citizens as property of equal value
for the previously possessed land, forest or a water body in the
territory of a state park or a state reserve, which, according to
the law, is not permitted to be returned in kind (it is bought
out by the state), who do not reside in the territory of that
state park or the state reserve, is to be assessed differently,
since such restoration of the rights of ownership to the existing
real property would create preconditions for the appearance of
the qualitative changes in the areas of particular value, to
control which would be very difficult (which could appear, e.g.,
due to the too active economic or other activity in the state
park or state reserve) and would pose a threat to the
preservation of the state parks or the state reserves as areas of
particular value. Such legal regulation would be constitutionally
groundlessit would be incompatible with Article 54 and Paragraph
2 of Article 128 of the Constitution and the constitutional
principle of a state under the rule of law.
IV
On the compliance of Paragraph 7 (wording of 13 May 1999)
of Article 16 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property with Articles
18, 29, and 32 of the Constitution and on the compliance of the
same paragraph (wording of 11 December 2001) to the extent that
it provides that land, forest or water bodies in state parks and
state reserves shall without payment be assigned to ownership in
an area of land, forest or water body of equal value, without
parcelling out the plot into parts, except land of an individual
farm, only to those citizens who use land for an individual farm
in these territories or who, on 17 August 2001, resided and
possessed by right of ownership residential houses or flats,
parts thereof in a state park and state reserve, and in villages
and small towns adjoining them, with Article 29 of the
Constitution and the constitutional principle of a state under
the rule of law.
1. As mentioned, it was established in Paragraph 7 (wording
13 May 1999) of Article 16 of the Law that "land and forest in
state parks and state reserves shall be given back by
transferring into ownership a plot of land or a plot of forest
respectively, which must be of equal value to the one held
previously, only to the citizens who reside in the region in
which a state park or state reserve is situated".
The notion "region" in the cited provision was then and is
at present understood as the territory of a corresponding
municipality.
2. Thus, under Paragraph 7 (wording 13 May 1999) of Article
16 of the Law, the rights of ownership to land, forest could be
restored: (1) to the citizens the land or forest belonging to
whom by right of ownership was, prior to the unlawful
nationalisation or other unlawful disseizing, in the territory of
a state park or state reserve; (2) to the citizens the land or
forest belonging to whom by right of ownership was, prior to the
unlawful nationalisation or other unlawful disseizing, not in the
territory of a state park or state reserve, but in another place.
In addition, there is not opportunity to restore the rights of
ownership to the existing real property neither to the former,
not the latter said citizens by returning in kind precisely the
plot of land or forest which used to belong to them by right of
ownershipthe land or forest which is situated in state parks or
state reserves is assigned to their ownership as property which
is equal in the value to the property (land, forest) that they
used to possess; the said land, forest are assigned as ownership
only to the citizens who reside in that region in which the state
park or the state reserve is situated.
3. While deciding whether the legislator, when establishing
in Paragraph 7 (wording 13 May 1999) of Article 16 of the Law
that in state parks and state reserves land and forest are
returned by assigning as ownership a land or forest plot
respectively which is of equal value to the one possessed
previously, only to citizens, who reside in that region in which
the state park or the state reserve is situated, did not act
ultra vires, whether he did not overstep the limits of his
discretion, the fact is of essential importance that after the
condition alone was established whereby one had to reside in the
region in which the state park or the sate reserve is situated,
also the persons acquired the right to restore the rights of
ownership by receiving a plot of land or forest, which is of
equal value to the one possessed previously and which is in the
territory of the state park or the state reserve, meanwhile, the
land or forest of these persons, which was unlawfully
nationalised or unlawfully disseized otherwise, has never been in
the territory of a state park or a state reserveit was in
another place.
These conditions (to reside in the region in which the
state park or the state reserve is situated) established in
Paragraph 7 (wording 13 May 1999) of Article 16 of the Law are
not sufficient so that it would be possible to hold that the
legislator, while establishing as to what persons the right of
ownership can be restored by assigning a plot of land or forest
as ownership, which is of equal value to the one possessed
formerly and which is in the territory of the state park of the
state reserve, heeded the aforesaid requirements of Articles 54
and 128 of the Constitution. The so-called moving of the land or
forest, which used to be previously possessed by the person and
which was in the territory that was not within a state park or a
state reserve, to the territory of a state park or a state
reserve only on the grounds that the said person resides in the
region in which the state park or the state reserve is situated,
cannot be regarded as constitutionally reasoned.
4. The legal regulation established in Paragraph 7 (wording
13 May 1999) of Article 16 of the Law permitted to restore the
rights of ownership by assigning a plot of land or forest
respectively, which was of equal value to that possessed
previously in state parks and state reserves inter alia to such
citizens who reside in the territory of the state park or the
state reserve and whose land or forest, which was unlawfully
nationalised or unlawfully disseized otherwise, is in the
territory of the same state park or state reserve, however, it is
impossible to return this land or forest in kind (they are
bought out by the state).
In this Constitutional Court ruling it has been held that
there are not any constitutional arguments which would permit to
assert that such way of restoration of the rights of ownership to
the existing real property where, in the course of restoration of
the rights of ownership to persons, who reside in the territory
of a state park or a state reserve, and who used to possess land
or forest by right of ownership in the same territory, which,
according to the law, is not permitted to be returned in kind (it
is bought out by the state), is (instead of the formerly
possessed land, forest) assigned a plot of land, forest
respectively of equal value in another part of the state park or
the state reserve, is impermissible, also, that such restoration
of the rights of ownership to the said persons should not pose a
threat to the preservation of the state parks or the state
reserves as areas of particular value.
It has been also held that the legal regulation whereby a
certain plot of land or forest in the territory of a state park
or a state reserve is assigned to citizens as property of equal
value for the previously possessed land, forest or a water body
in the territory of a state park or a state reserve, which,
according to the law, is not permitted to be returned in kind (it
is bought out by the state), who do not reside in the territory
of that state park or the state reserve, would create
preconditions for the appearance of the qualitative changes in
the areas of particular value, to control which would be very
difficult (which could appear, e.g., due to the too active
economic or other activity in the state park or state reserve)
and would pose a threat to the preservation of the state parks or
the state reserves as areas of particular value; such legal
regulation would be constitutionally groundlessit would be
incompatible with Article 54 and Paragraph 2 of Article 128 of
the Constitution and the constitutional principle of a state
under the rule of law.
5. Taking account of the arguments set forth, one is to
hold that Paragraph 7 (wording of 13 May 1999) of Article 16 of
the Law to the extent that it provided that the rights of
ownership could be restored by assigning to ownership a plot of
land or forest respectively, which is of equal value to the one
possessed previously, which is in the territory in a state park
or state reserve, to the citizens whose land or forest, which
belonged to them by right of ownership and which was unlawfully
nationalised or unlawfully disseized, used to be, prior to the
unlawful nationalisation or unlawful disseizing, not in the
territory of that state park or state reserve, but in another
place, as well as to the citizens whose land or forest, which
belonged to them by right of ownership and which was unlawfully
nationalised or unlawfully disseized, used to be, prior to the
unlawful nationalisation or unlawful disseizing, in the territory
of that state park or state reserve, but who do not reside in the
territory of that state park or state reserve, was in conflict
with Article 54 and Paragraph 2 of Article 128 of the
Constitution and the constitutional principle of a state under
the rule of law.
6. As mentioned, by Paragraph 2 of Article 6 of the Law on
Amending and Supplementing Articles 2, 4, 6, 10, 12, 16 and 21 of
the Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property, which was adopted by the Seimas on
3 August 2001 and which came into force on 17 August 2001,
Paragraph 7 (wording of 13 May 1999) of Article 16 of the Law was
amended and set forth in a new wording. It was established that
"land and forest in state parks and state reserves shall not be
given back by transferring into ownership a plot of land or a
plot of forest respectively, as that of equal value to the one
held previously". It needs to be held that such amendment of the
Law abolished the possibility that had existed until then to
receive as ownership the land or forest in the territory of state
parks and state reserves, which is of equal value to the land or
forest that one possessed previously and to the land or forest of
equal value that one possessed previously in another part of the
territory of state parks and state reserves.
Paragraph 7 (wording of 3 August 2001) of Article 16 of the
Law was amended by the Law on Amending and Supplementing Articles
12, 13 and 16 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property, which was
adopted by the Seimas on 11 December 2001 and which came into
force on 28 December 2001. Besides, this paragraph (wording of 3
August 2001) is not disputed in the constitutional justice case
at issue. The Constitutional Court will not investigate its
relation with the Constitution.
7. As mentioned, Paragraph 7 (wording of 11 December 2001)
of Article 16 of the Law provides:
"Land, forest or water bodies in state parks, except
Nemunas Delta Regional Park, and state reserves shall without
payment be assigned to ownership in an area of land, forest or
water body of equal value, without parcelling out the plot into
parts, except land of an individual farm, only to those citizens
who use land for an individual farm in these territories or who,
prior to 17 August 2001, resided and possessed by right of
ownership residential houses or flats, parts thereof in a state
park and state reserve, and in villages and small towns adjoining
them, as well as to the citizens who resided in these territories
prior to 17 August 2001, whose spouses had a residential house or
a flat, or a part thereof in these territories. Land in Nemunas
Delta Regional Park shall be assigned to ownership in a plot of
land of equal value without parcelling out it into parts, except
land of an individual farm, to those citizens who resided in the
territory of the said regional park, as well as in the Šilutė and
Pagėgiai municipalities. On the basis of land survey plans of the
land reform approved prior to 17 August 2001, land, forest or
water bodies in state parks and state reserves shall be given
back to the citizens who resided and possessed by right of
ownership residential houses or flats, parts thereof in the
region in which a state park or state reserve is situated, by
respectively assigning to the ownership without payment a plot of
land, forest or a water body of the value equal to the one
possessed previously."
Thus, under Paragraph 7 (wording of 11 December 2001) of
Article 16 of the Law, land, forest or water bodies in state
parks, except Nemunas Delta Regional Park, and state reserves
shall without payment be assigned to ownership in an area of
land, forest or water body of equal value, without parcelling out
the plot into parts, only to those citizens who meet at least one
the following conditions: (1) they use land for an individual
farm in the territory of a state park or state reserve; (2) prior
to 17 August 2001, they resided and possessed by right of
ownership residential houses or flats, parts thereof in a state
park and state reserve; (3) prior to 17 August 2001, they resided
and possessed by right of ownership residential houses or flats,
parts thereof in villages and small towns adjoining state parks
and state reserves; (4) they resided in a state park or state
reserve prior to 17 August 2001, provided their spouses had a
residential house or a flat, or a part thereof in these
territories. In addition, under Paragraph 7 (wording of 11
December 2001) of Article 16 of the Law, it is permitted to
restore the rights of ownership to the existing real property by
assigning land, forest or water bodies which are in state parks
and state reserves to the citizens who resided and possessed by
right of ownership residential houses or flats, parts thereof in
the region in which a state park or state reserve is situatedin
such a case one follows the land survey plans of the land reform
approved prior to 17 August 2001. Meanwhile, the citizens who
aspire to restore the rights of ownership in Nemunas Delta
Regional Park are applied only one requirement, which is to
reside in the territory of this regional park as well as in the
Šilutė and Pagėgiai municipalities.
8. The provisions of Paragraph 7 (wording of 11 December
2001) of Article 16 of the Law, which are disputed by the
Šiauliai Regional Administrative Court, a petitioner, namely,
that land, forest or water bodies in state parks and state
reserves shall without payment be assigned to ownership in an
area of land, forest or water body of equal value, without
parcelling out the plot into parts, except land of an individual
farm, only to those citizens who use land for an individual farm
in these territories or who, on 17 August 2001, resided and
possessed by right of ownership residential houses or flats,
parts thereof in a state park and state reserve, and in villages
and small towns adjoining them, is related with the other
provisions of this paragraph.
9. While deciding whether Paragraph 7 (wording of 11
December 2001) of Article 16 of the Law to the extent specified
by the Šiauliai Regional Administrative Court, a petitioner, is
not in conflict with the Constitution, it needs to be held that
all the conditions specified in this paragraph imply an
opportunity to restore the rights of ownership by assigning to
ownership without payment a plot of land, forest or a water body
of equal value in state parks and state reserves not only to the
citizens, whose land or forest, which belonged to them by right
of ownership, was, prior to the unlawful nationalisation or other
unlawful disseizing, in the territory of that state park or state
reserve, but also to the citizens, whose land or forest, which
belonged to them by right of ownership, was, prior to the
unlawful nationalisation or other unlawful disseizing, not in the
territory of the state park or state reserve, but in another
place, and it is not important whether these citizens reside in
the territory of that state park of state reserve or in another
place.
10. It has been mentioned that there are not any
constitutional arguments that such way of restoration of the
rights of ownership to the existing real property where, in the
course of restoration of the rights of ownership to persons, who
reside in the territory of a state park or a state reserve, and
who used to possess land, forest or water body by right of
ownership in the same territory, which, according to the law, is
not permitted to be returned in kind (it is bought out by the
state), is (instead of the formerly possessed land, forest)
assigned a plot of land, forest or water body respectively of
equal value in another part of the state park or the state
reserve, is impermissible, also, that such restoration of the
rights of ownership to the said persons should not pose a threat
to the preservation of the state parks or the state reserves as
areas of particular value. It has also been mentioned that the
legal regulation whereby a certain plot of land, forest or a
water body in the territory of a state park or a state reserve is
assigned to citizens as property of equal value for the
previously possessed land, forest or a water body in the
territory of a state park or a state reserve, which, according to
the law, is not permitted to be returned in kind (it is bought
out by the state), who do not reside in the territory of that
state park or the state reserve would create preconditions for
the appearance of the qualitative changes in the areas of
particular value, to control which would be very difficult (which
could appear, e.g., due to the too active economic or other
activity in the state park or state reserve) and would pose a
threat to the preservation of the state parks or the state
reserves as areas of particular value, and that such legal
regulation would be constitutionally groundlessit would be
incompatible with Article 54 and Paragraph 2 of Article 128 of
the Constitution and the constitutional principle of a state
under the rule of law.
11. It has been held in this Constitutional Court ruling
that Paragraph 7 (wording of 13 May 1999) of Article 16 of the
Law to the extent that it provided that the rights of ownership
could be restored by assigning to ownership a plot of land or
forest respectively, which is of equal value to the one possessed
previously, which is in the territory in a state park or state
reserve, to the citizens whose land or forest, which belonged to
them by right of ownership and which was unlawfully nationalised
or unlawfully disseized, used to be, prior to the unlawful
nationalisation or unlawful disseizing, not in the territory of
that state park or state reserve, but in another place, as well
as to the citizens whose land or forest, which belonged to them
by right of ownership and which was unlawfully nationalised or
unlawfully disseized, used to be, prior to the unlawful
nationalisation or unlawful disseizing, in the territory of that
state park or state reserve, but who do not reside in the
territory of that state park or state reserve, was in conflict
with Article 54 and Paragraph 2 of Article 128 of the
Constitution and the constitutional principle of a state under
the rule of law.
On the grounds of the arguments analogous to those due to
which Paragraph 7 (wording of 13 May 1999) of Article 16 of the
Law was recognised to be in conflict with the Constitution, one
is to hold that also Paragraph 7 (wording of 11 December 2001) of
Article 16 of the Law to the extent that it provides that the
rights of ownership could be restored by assigning to ownership a
plot of land, forest or a water body respectively, which is of
equal value to the one possessed previously, which is in the
territory in a state park or state reserve, to the citizens,
whose land, forest or water body, which belonged to them by right
of ownership and which was unlawfully nationalised or unlawfully
disseized, used to be, prior to the unlawful nationalisation or
unlawful disseizing, not in the territory of that state park or
state reserve, but in another place, as well as to the citizens,
whose land, forest or water body, which belonged to them by right
of ownership and which was unlawfully nationalised or unlawfully
disseized, used to be, prior to the unlawful nationalisation or
unlawful disseizing, in the territory of that state park or state
reserve, but who do not reside in the territory of that state
park or state reserve, but in another place, is in conflict with
Article 54 and Paragraph 2 of Article 128 of the Constitution and
the constitutional principle of a state under the rule of law.
12. After one has held this, the investigation onto the
compliance of Paragraph 7 (wording of 11 December 2001) of
Article 16 of the Law with the Constitution to the extent
specified by the Šiauliai Regional Administrative Court, a
petitioner, becomes meaningless.
13. It needs to be emphasised that the fact that Paragraph
7 (wordings of 13 May 1999 and 11 December 2001) of Article 16 of
the Law has been recognised to be in conflict, to the
corresponding extent, with the Constitution does not mean and
cannot be interpreted as the grounds to review the state and
municipal decisions, which have already been adopted and
executed, whereby in the course of restoration of the rights of
ownership, subsequent to the laws and other legal acts valid at
the corresponding time, citizens were assigned to ownership land,
forests, water bodies which were in state parks and state
reserves as property of equal value instead of the property which
used to be possessed by the citizens not in that state park or
state reserve, but in another place.
The recognition that Paragraph 7 (wordings of 13 May 1999
and 11 December 2001) of Article 16 of the Law to the
corresponding extent is in conflict with the Constitution does
not mean and cannot be interpreted as the grounds to review the
state and municipal decisions, which have already been adopted
and executed, whereby subsequent to the laws and other legal acts
valid at the corresponding time, citizens were assigned land,
which is in the territory of a state park or state reserve, as
land of so-called individual farm or it was permitted to acquire
this land of individual farm as ownership, as well as the state
and municipal decisions, which have already been adopted and
executed, whereby, subsequent to the laws and other legal acts
valid at the corresponding time, citizens were assigned other
land, which is in the territory of a state park or state reserve,
or it was permitted to acquire that land as ownership.
V
On the compliance of Item 1 (wording of 2 April 2002) of
Paragraph 2 of Article 5 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property to
the extent that it provides that the area of the vacant (non-
built-up) land given back in kind shall be reduced to the size of
a plot of land of one hectare, provided that plots of land are
designed on it, which are being transferred without payment to
citizens for individual construction under Item 3 of Paragraph 2
of this article and they cannot be designed within other
territories of the town due to the lack of vacant (non-built-up)
land in this town with Paragraph 3 of Article 23 of the
Constitution.
1. As mentioned, under Item 1 (wording of 2 April 2002) of
Paragraph 2 of Article 5 of the Law, the rights of ownership to
the land, which was situated prior to 1 June 1995 within the
territory that was attributed in the prescribed manner to towns,
shall be restored "by giving back in kind to a citizen or
citizens the vacant (non-built-up) land in the former locality by
the right of joint ownership, as well as to a citizen, possessing
the buildings by the ownership right, a plot of land in use by
this citizen the boundaries of which are defined in territorial
planning documents, with the exception of the land attributed
under Article 12 of this Law to the land subject to buying out by
the State, as well as the land a citizen does not wish to be
given back in the former locality. The area of the vacant (non-
built-up) land given back in kind shall be reduced to the size of
a plot of land of one hectare, provided that plots of land are
designed on it, which are being transferred without payment to
citizens for individual construction under Item 3 of Paragraph 2
of this Article and they cannot be designed within other
territories of the town due to the lack of vacant (non-built-up)
land in this town. The plans of vacant (non-built-up) land plots
which are provided for returning in kind at the locality
previously possessed shall be confirmed by municipal councils
under procedure established by the Government".
2. The Vilnius Regional Administrative Court, a petitioner,
disputes the compliance of not the entire legal regulation
established in Item 1 (wording of 2 April 2002) of Paragraph 2 of
Article 5 of the Law with the Constitution, but only whether this
item was not in conflict with the Constitution to the extent that
it provided that the area of the vacant (non-built-up) land given
back in kind shall be reduced to the size of a plot of land of
one hectare, provided that plots of land are designed on it,
which are being transferred without payment to citizens for
individual construction under Item 3 of Paragraph 2 of this
article and they cannot be designed within other territories of
the town due to the lack of vacant (non-built-up) land in this
town and in the aspect whether such legal regulation does not
limit the restoration of the rights of ownership to vacant (non-
built-up) land in kind, if there is not any concrete need of
society to that concrete land.
In the constitutional justice case at issue, the
Constitutional Court will investigate the compliance of Item 1
(wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law
with the Constitution only to the extent and in the aspect
specified by the Vilnius Regional Administrative Court, a
petitioner.
3. Under Item 1 (wording of 2 April 2002) of Paragraph 2 of
Article 5 of the Law, the rights of ownership to the land, which
was situated prior to 1 June 1995 within the territory that was
attributed in the prescribed manner to towns, were restored: (1)
by returning the citizens in kind precisely that land, which
belonged to them by right of ownership prior to the unlawful
nationalisation or other unlawful disseizing; (2) to the citizens
possessing buildings by the ownership rightby returning in kind
a plot of land in use by this citizen the boundaries of which are
defined in territorial planning documents. To both groups of
citizens the land was returned in kind only in case it was not
ascribed to the land subject to buying out by the state. In
addition, to all these citizens the area of the vacant (non-
built-up) land given back in kind was reduced to the size of one
hectare, provided that plots of land are designed on it, which
are being transferred without payment to citizens for individual
construction under Item 3 of Paragraph 2 of Article 5 of this law
and they cannot be designed within other territories of the town
due to the lack of vacant (non-built-up) land in this town. In
this context, it needs to be mentioned that, under Item 3
(wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law,
the rights of ownership to the land, which was situated prior to
1 June 1995 within the territory that was attributed in the
prescribed manner to towns, were restored inter alia by assigning
without payment a new plot of land into the ownership of a
citizen, which was prepared or not prepared for use in a manner
prescribed by the Government, when the Government had approved
its size in the same town in which was the previously owned land,
with the exception of the territory of Curonian Spit National
Park.
4. As mentioned, the state, while striving to restore
justice in part at least, i.e. to restore the violated rights of
ownership, chose restricted restitution but not restitutio in
integrum; such choice was determined, among other factors, by the
extent of the restoration of the rights of ownership and the
limited material and financial capabilities of the state; when
one establishes, by means of laws, the conditions and procedure
of restoration of the rights of ownership, it is necessary to
take account of the changed social, economic, and other
conditions; in the process of the restoration of the rights of
ownership it is necessary to co-ordinate the interests of the
persons who seek to restore the rights of ownership and the needs
of society; in the course of restoration of the rights of some
persons it is not permitted to violate the rights of other
persons; it is impossible to attain justice by recognizing the
interests of only one group or one person and by denying the
interests of others at the same time; while restoring justice in
regard of the owners, one cannot ignore justice in regard of the
entire society whose members are also the owners as well.
5. In the context of the constitutional justice case at
issue, it needs to be noted that the legislator, while enjoying,
under the Constitution, the discretion to establish the
conditions and procedure for the restoration of the rights of
ownership to the existing property, also enjoys the powers to
establish such legal regulation whereby all vacant (non-built-up)
land in towns is returned in kind to its owners, if there is not
any concrete need of society to that land (Constitutional Court
ruling of 2 April 2001).
Thus, the legislator also has the powers to establish the
maximum size of the vacant (non-built-up) land in towns, which is
to be returned to citizens, provided this is constitutionally
grounded.
6. It has been held in this Constitutional Court ruling
that it is impossible to identify the buying out of the existing
real property from the citizens to whom the right of ownership is
restored with the seizure of property from the owner for the
needs of society (under Paragraph 3 of Article 23 of the
Constitution).
Thus, the content of the notion "needs of society" employed
in Paragraph 3 of Article 23 of the Constitution is not identical
to the concept of the needs of society due to which in the course
of the restitution certain property is not returned to the owners
in kind, but is bought out by the state. The concept of the needs
of society due to which, in the course of the restitution, is not
returned to the owners in kind, but is bought out by the state,
is much broader than the content of the notion "needs of society"
employed in Paragraph 3 of Article 23 of the Constitution.
7. While one decides whether Item 1 (wording of 2 April
2002) of Paragraph 2 of Article 5 of the Law was not in conflict
with the Constitution to the extent and in the aspect specified
by the Vilnius Regional Administrative Court, a petitioner, the
fact is of essential importance that the area of the vacant (non-
built-up) land given back in kind was reduced to the size of a
plot of land of one hectare precisely because plots of land are
designed on the vacant (non-built-up) plot of land, which is
subject to being returned to the citizen and which is being
transferred without payment to the citizens who, prior to the
unlawful nationalisation or other unlawful disseizing, used to
have a plot of land by right of ownership in the same town, for
individual construction, and provided such plots cannot be
designed within other territories of the town due to the lack of
vacant (non-built-up) land in this town.
8. In its ruling of 2 April 2001, the Constitutional Court
has held that under Paragraph 2 of Article 5 of the Law, the
citizens, to whom it is impossible to restore the right of
ownership to land in kind to the land they previously held, may
be transferred other plots of land without payment; that, under
the Law, for these purposes also the vacant (not built over) land
is used which its owners seek to be given back in kind; that such
land is bought out by the state; also, that in such a manner the
rights of ownership to the nationalised land of a greater number
of owners to whom it is impossible to return their previously
held urban land in kind are in part restored in kind by
transferring them the plots of land of the established area lying
in the territories of towns as partial compensation in kind. It
was also held in the same Constitutional Court ruling that, while
one takes account of the changes of the ownership-related
relations which occurred during the period after the unlawful
nationalisation, buying out of a certain part of private vacant
(not built over) land in attempt to restore the rights of
ownership to the nationalised land for as many owners as possible
by transferring them the plots of land into ownership without
payment reflects the interest of society.
9. In the context of the constitutional justice case at
issue, it needs to be held that there are not any constitutional
arguments which would permit to assert that the ground
established in Item 1 (wording of 2 April 2002) of Paragraph 2 of
Article 5 of the Law whereby not whole vacant (non-built-up) land
in town is returned to a citizen, but only not more than one
hectare, is incompatible with Paragraph 3 of Article 23 of the
Constitution.
In addition, there are not any constitutional arguments
which would permit to assert that the size of the vacant (non-
built-up) land in townnot more than one hectareestablished in
Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of
the Law is incompatible with Paragraph 3 of Article 23 of the
Constitution.
10. Taking account of the arguments set forth, one is to
draw a conclusion that Item 1 (wording of 2 April 2002) of
Paragraph 2 of Article 5 of the Law to the extent that it
provides that the area of the vacant (non-built-up) land given
back in kind shall be reduced to the size of a plot of land of
one hectare, provided that plots of land are designed on it,
which are being transferred without payment to citizens for
individual construction under Item 3 of Paragraph 2 of this
article and they cannot be designed within other territories of
the town due to the lack of vacant (non-built-up) land in this
town was not in conflict with Paragraph 3 of Article 23 of the
Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that Paragraph 7 (wording of 13 May 1999)
of Article 16 of the Republic of Lithuania Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (Official Gazette Valstybės žinios, 1999, No. 48-1522)
to the extent that it provided that the rights of ownership could
be restored by assigning to ownership a plot of land or forest
respectively, which is of equal value to the one possessed
previously, which is in the territory in a state park or state
reserve, to the citizens whose land or forest, which belonged to
them by right of ownership and which was unlawfully nationalised
or unlawfully disseized, used to be, prior to the unlawful
nationalisation or unlawful disseizing, not in the territory of
that state park or state reserve, but in another place, as well
as to the citizens whose land or forest, which belonged to them
by right of ownership and which was unlawfully nationalised or
unlawfully disseized, used to be, prior to the unlawful
nationalisation or unlawful disseizing, in the territory of that
state park or state reserve, but who do not reside in the
territory of that state park or state reserve, was in conflict
with Article 54 and Paragraph 2 of Article 128 of the
Constitution of the Republic of Lithuania and the constitutional
principle of a state under the rule of law.
2. To recognise that Paragraph 7 (wording of 11 December
2001) of Article 16 of the Republic of Lithuania Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (Official Gazette Valstybės žinios, 2001,
No. 108-3904to the extent that it provides that the rights of
ownership could be restored by assigning to ownership a plot of
land, forest or a water body respectively, which is of equal
value to the one possessed previously, which is in the territory
in a state park or state reserve, to the citizens, whose land,
forest or water body, which belonged to them by right of
ownership and which was unlawfully nationalised or unlawfully
disseized, used to be, prior to the unlawful nationalisation or
unlawful disseizing, not in the territory of that state park or
state reserve, but in another place, as well as to the citizens,
whose land, forest or water body, which belonged to them by right
of ownership and which was unlawfully nationalised or unlawfully
disseized, used to be, prior to the unlawful nationalisation or
unlawful disseizing, in the territory of that state park or state
reserve, but who do not reside in the territory of that state
park or state reserve, but in another place, is in conflict with
Article 54 and Paragraph 2 of Article 128 of the Constitution of
the Republic of Lithuania and the constitutional principle of a
state under the rule of law.
3. To recognise that Item 1 (wording of 2 April 2002) of
Paragraph 2 of Article 5 of the Republic of Lithuania Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (Official Gazette Valstybės žinios, 2002,
No. 41-1526) to the extent that it provides that the area of the
vacant (non-built-up) land given back in kind shall be reduced to
the size of a plot of land of one hectare, provided that plots of
land are designed on it, which are being transferred without
payment to citizens for individual construction under Item 3 of
Paragraph 2 of this article and they cannot be designed within
other territories of the town due to the lack of vacant (non-
built-up) land in this town was not in conflict with Paragraph 3
of Article 23 of the Constitution of the Republic of Lithuania.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court:
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis