Case No. 03/04-15/04-05/06
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON THE CONSTRUCTION OF THE CONSTITUTIONAL COURT 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" OF 5 JULY 2007
4 July 2008
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Kęstutis Lapinskas, Zenonas
Namavičius, Egidijus Šileikis, Algirdas Taminskas, and Romualdas
Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of Gintarė Dešukaitė, an advisor of the
Bureau of the Seimas Committee on Rural Affairs, the
representative of the Speaker of the Seimas of the Republic of
Lithuania, who submitted a petition requesting to construe a
ruling of the Constitutional Court of the Republic of Lithuania,
pursuant to Article 61 of the Law on the Constitutional
Court of the Republic of Lithuania, on 2 July 2008, in a public
Court hearing considered the petition of Česlovas Juršėnas,
Speaker of the Seimas of the Republic of Lithuania, requesting to
construe as to from which moment, according to the Constitutional
Court 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" of 5 July 2007, there appear the
legitimate expectations of citizens, that the rights of ownership
will be restored to them by assigning to ownership an area of
(correspondingly) land, forest or water body of equal value to
that which they used to possess, which is in the territory of a
state park and state reserve.
The Constitutional Court
has established:
I
1. On 5 July 2007, in constitutional justice case No. 03/04-
15/04-05/06, subsequent to 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), 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), and 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), adopted the
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" (Official Gazette Valstybės žinios, 2007, No. 76-
3018; hereinafter also referred to as the Constitutional Court
ruling of 5 July 2007).
2. It was recognised in the Constitutional Court ruling of 5
July 2007 that:
- 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 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;
- Paragraph 7 (wording of 11 December 2001) 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
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.
- 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
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 was not in conflict with Paragraph 3 of Article 23 of the
Constitution.
3. The Speaker of the Seimas, the petitioner, requests that
the Constitutional Court construe as to from which moment,
according to the Constitutional Court ruling of 5 July 2007,
there appear the legitimate expectations of citizens, that the
rights of ownership will be restored to them by assigning to
ownership an area of (correspondingly) land, forest or water body
of equal value to that which they used to possess, which is in
the territory of a state park and state reserve.
II
At the Constitutional Court hearing, the representative of
the Speaker of the Seimas, the petitioner, who submitted the
petition requesting to construe the Constitutional Court ruling
of 5 July 2007, explained the reasons which prompted the
petitioner to apply to the Constitutional Court and answered to
the questions given by the justices of the Constitutional Court.
The Constitutional Court
holds that:
I
1. The Law on the Constitutional Court consolidates the
powers of the Constitutional Court to officially construe its
rulings (Article 61 of the Law on the Constitutional Court). The
Constitutional Court has the powers also to construe its other
final acts (Constitutional Court decisions of 6 April 2004, 14
March 2006 (Case No. 13/2000-14/2000-20/2000-21/2000-22/2000-25/
2000-31/2000-35/2000-39/2000-8/01-31/01), 20 November 2006, 21
November 2006, 6 December 2007, and 1 February 2008).
2. Paragraph 1 of Article 61 of the Law on the
Constitutional Court provides that a ruling of the Constitutional
Court may only be officially construed by the Constitutional
Court at the request of the parties to the case, of other
institutions or persons to whom it was sent, or on its own
initiative. Under Paragraph 2 of Article 60 of the Law on the
Constitutional Court, the President of the Constitutional Court
may order that a Constitutional Court ruling be sent to other
institutions, officials, or citizens. Under Order of the
President of the Constitutional Court No. 4B-10 "On Sending Final
Acts of the Constitutional Court" of 29 March 2004, final acts of
the Constitutional Court are sent inter alia to the Speaker of
the Seimas. Thus, under Paragraph 1 of Article 61 of the
Constitutional Court, the Speaker of the Seimas has the right to
apply to the Constitutional Court with a petition requesting to
construe a ruling of the Constitutional Court.
3. A decision concerning construction of a Constitutional
Court ruling shall be adopted as a separate document (Paragraph 2
of Article 61 of the Law on the Constitutional Court).
4. The Constitutional Court has stated in its acts that the
purpose of the institute of construction of Constitutional Court
rulings and other final acts is to reveal the contents and
meaning of corresponding Constitutional Court rulings or other
final acts more broadly and in more detail if it is necessary in
order to ensure proper execution of that Constitutional Court
ruling or other final act so that this Constitutional Court
ruling or other final would be followed (Constitutional Court
decisions of 14 March 2006 (Case No. 13/2000-14/2000-20/2000-21/
2000-22/2000-25/2000-31/2000-35/2000-39/2000-8/01-31/01), 21
November 2006, 6 December 2007, and 1 February 2008).
5. A ruling of the Constitutional Court is integral, its
resolving part is based upon the arguments of the part of
reasoning; while construing its ruling, the Constitutional Court
is bound both by the content of the part of resolution and that
of reasoning of its ruling; the decision adopted concerning
construction of a Constitutional Court ruling is inseparable from
the Constitutional Court ruling (Constitutional Court decisions
of 12 January 2000, 11 February 2004, 13 February 2004, 10
February 2005, 14 March 2006 (Case No. 13/2000-14/2000-20/2000-
21/2000-22/2000-25/2000-31/2000-35/2000-39/2000-8/01-31/01), the
ruling of 28 March 2006, the decisions of 21 November 2006, 6
December 2007, and 1 February 2008).
6. Under Paragraph 3 of Article 61 of the Law on the
Constitutional Court, the Constitutional Court must construe its
ruling without changing its content.
This provision of Paragraph 3 of Article 61 of the Law on
the Constitutional Court means, among other things, that while
construing its ruling, the Constitutional Court cannot construe
its content so that the meaning of its provisions, inter alia the
notional entirety of the elements constituting the content of the
ruling, the arguments and reasons upon which that Constitutional
Court ruling is based, is changed, also that the Constitutional
Court may not construe what was not investigated in that
constitutional justice case, subsequent to which the construed
ruling was adopted, either (Constitutional Court decision of 14
March 2006 (Case No. 13/2000-14/2000-20/2000-21/2000-22/2000-25/
2000-31/2000-35/2000-39/2000-8/01-31/01), 28 March 2006, 21
November 2006 and 6 December 2007). The consideration of a
petition requesting to construe a Constitutional Court ruling or
its other final act does not imply a new constitutional justice
case (Constitutional Court decision of 21 November 2006, 6
December 2007, and 1 February 2008).
In this context it is to be noted that the formula "shall be
final and not subject to appeal" of Paragraph 2 of Article 107 of
the Constitution, which provides that the decisions of the
Constitutional Court on issues ascribed to its competence by the
Constitution shall be final and not subject to appeal, means that
the Constitutional Court rulings, conclusions and decisions by
which a constitutional justice case is finished, i.e. final acts
of the Constitutional Court, are obligatory to all state
institutions, courts, all enterprises, establishments and
organisations, as well as officials and citizens, including the
Constitutional Court itself: final acts of the Constitutional
Court are obligatory to the Constitutional Court itself, they
restrict the Constitutional Court in the aspect that it may not
change them or review them if there are no constitutional grounds
for that (Constitutional Court ruling of 28 March 2006, decisions
of 21 November 2006, 6 December 2007, and 1 February 2008).
Therefore in the official construction (subsequent to a
petition of the persons that participated in the case, other
institutions and individuals, to whom the Constitutional Court
ruling was sent, also on the initiative of the Constitutional
Court itself) of rulings and other final acts of the
Constitutional Court, the constitutional doctrine is not
corrected. The correction of the official constitutional doctrine
(which, undoubtedly, must always have a constitutional basis and
be explicitly reasoned in a respective act of the Constitutional
Court) is to be related with the consideration of new
constitutional justice cases and creation of new Constitutional
Court precedents therein, but not with official construction of
provisions of the Constitutional Court rulings and other final
acts (Constitutional Court decisions of 6 December 2007 and 1
February 2008).
7. It is also to be noted that the uniformity and continuity
of the official constitutional doctrine implies a necessity to
construe each construed provision of a Constitutional Court
ruling or its other final act by taking account of the entire
official constitutional doctrinal context, also of other
provisions (explicit and implicit) of the Constitution, which are
related with the provision (provisions) of the Constitution in
the course of construction of which in a Constitutional Court
ruling or its other final act the corresponding official
constitutional doctrine was formulated. No official
constitutional doctrinal provision of a Constitutional Court
ruling or its other final act may be construed in isolation, by
ignoring its meaning and systemic links with the other official
constitutional doctrinal provisions set forth in that
Constitutional Court ruling or its other final act, in other
Constitutional Court acts, as well as with other provisions
(explicit and implicit) of the Constitution (Constitutional Court
decisions of 21 November 2006, 6 December 2007 and 1 February
2008).
II
1. While construing, subsequent to the petition of the
Speaker of the Seimas, the provisions of the Constitutional Court
ruling of 5 July 2007, it needs to be noted that the following
was investigated in the constitutional justice case in which the
aforementioned Constitutional Court ruling was adopted:
- 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 (hereinafter
also referred to as the Law) with the Constitution, to the extent
that the said paragraph 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;
- the compliance of Paragraph 7 (wording of 11 December
2001) of Article 16 of the Law with the Constitution, to the
extent that the said paragraph 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;
- the compliance of Item 1 (wording of 2 April 2002) of
Paragraph 2 of Article 5 of the Law with the Constitution, to the
extent that the said item 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.
2. The Speaker of the Seimas, the petitioner, on the grounds
of the doctrinal provision of the Constitutional Court whereby in
general and in certain special cases the Constitution does not
prevent protection and defence also of such rights acquired by
the person, which arise from the legal acts that were later
recognised as being in conflict with the Constitution, requests
to construe "from which moment, within the meaning of the
Constitutional Court 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" of 5 July 2007, there
appear the legitimate expectations of citizens, that the rights
of ownership will be restored to them by assigning to ownership
an area of (correspondingly) land, forest or water body of equal
value to that which they used to possess, which is in the
territory of a state park and state reserve".
3. Under Paragraph 1 of Article 107 of the Constitution, a
law (or part thereof) of the Republic of Lithuania or other act
(or part thereof) of the Seimas, act of the President of the
Republic, act (or part thereof) of the Government may not be
applied from the day of official promulgation of the decision of
the Constitutional Court that the act in question (or part
thereof) is in conflict with the Constitution.
The Constitutional Court has noted that Paragraph 1 of
Article 107 of the Constitution is to be construed as meaning
that every legal act (or part thereof) passed by the Seimas, the
President of the Republic or the Government or adopted by
referendum, which is recognised as being in conflict with any
legal act of greater power, inter alia (and, first of all) with
the Constitution, is removed from the Lithuanian legal system for
good, it may never be applied anymore. The power of the
Constitutional Court to recognise a legal act or part thereof as
unconstitutional may not be overruled by a repeated adoption of a
like legal act or part thereof (Constitutional Court rulings of
30 May 2003, 28 March 2006 and 6 June 2006).
4. In this context it needs to be noted that in the official
constitutional doctrine, inter alia in the Constitutional Court
ruling of 5 July 2007, it is stressed that 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.
These provisions of the official constitutional doctrine
mean that the legal acts (parts thereof) that were recognised as
being in conflict with the Constitution may not be applied from
the day of the official publishing of the Constitutional Court
ruling, also, from that moment, as a rule, the rights of persons
acquired under the legal acts, which were recognised as being in
conflict with the Constitution, may not be implemented.
In addition, in its rulings, inter alia the ruling of 5 July
2007, the Constitutional Court noted that in certain special
cases the Constitution generally does not prevent from protecting
and defending also such acquired rights of the person arising
from the legal acts recognised later as being in conflict with
the Constitution, 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, and, also, 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.
As mentioned, it is these doctrinal provisions of the
Constitutional Court upon which the petition of the Speaker of
the Seimas, the petitioner, is grounded.
5. It needs to be noted that although the petition of the
petitioner has been formulated as a petition requesting to
construe as to from which moment, according to the Constitutional
Court ruling of 5 July 2007, there appear the legitimate
expectations of citizens, that the rights of ownership will be
restored to them by assigning to ownership an area of
(correspondingly) land, forest or water body of equal value to
that which they used to possess, which is in the territory of a
state park and state reserve, it is clear from the explanations
of the representative of the Speaker of the Seimas, the
petitioner, which were presented at the Constitutional Court
hearing, that the petitioner requests to construe as to from
which moment there appear the legitimate expectations of
citizens, that the rights of ownership will be restored by
assigning to ownership an area of (correspondingly) land, forest
or water body of equal value to that which they used to possess,
which is in the territory of a state park and state reserve, to
those 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.
III
1. It was established in Paragraph 7 (wording 13 May 1999)
of Article 16 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property 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".
While construing the said provision of Paragraph 7 (wording
13 May 1999) of Article 16 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property, in
its ruling of 5 July 2007 the Constitutional Court held that 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.
2. It was established in Paragraph 7 (wording of 11 December
2001) of Article 16 of the Law 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, 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."
While construing the said provision of Paragraph 7 (wording
of 11 December 2001) of Article 16 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property, in its ruling of 5 July 2007 the Constitutional Court
held that, under this provision, 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.
3. In its acts the Constitutional Court has held more than
once that the fact that the state resolved that the denied rights
of ownership have to be restored, also the fact that a law
regulating restitution relations was adopted and that
implementation of restoration of ownership rights was begun,
created the legitimate expectation to the persons who have the
right to restore their rights of ownership that they will be able
to implement this right under the ways, conditions and procedure
established by the law; the said legitimate expectation is
protected and defended by the Constitution; alongside, a duty
appeared to the state to regulate the restoration of the rights
of ownership to the existing real property in a way so that the
said legitimate expectation would be implemented in reality.
4. It was noted in the Constitutional Court ruling of 5 July
2007 that 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. In the same
ruling the Constitutional Court also held that 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. 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.
4.1. The Constitutional Court ruling of 5 July 2007 also
mentioned the provisions, which had been formulated in previous
acts of the Constitutional Court (rulings of 27 May 1994 and 23
August 2005), whereby 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.
4.2. It has been held in the Constitutional Court acts more
than once that the legislator, having established the procedure
and conditions for restoration of the rights of ownership,
emphasised the priority to the former owners to restore the land
in kind; however, if, due to the existing factual relations of
land use and the needs of society there are no possibilities to
restore the land in kind, they are guaranteed the right to choose
the manner of restoration of the rights of ownership under
procedure and conditions established by the law, inter alia
restoration of the rights by means of equivalent kind.
4.3. After the legislator has chosen not restitutio in
integrum, but limited restitution, the citizens who meet the
requirements established in the Law to restore the rights of
ownership were granted the right to restitution, however, not
necessarily in the way required by the said citizens (provided
there are not any possibility to restore the rights of ownership
in that particular way), but in the ways provided for in this
law, while the choice of these ways is determined not by wishes
of the claimants to property restoration, but by objective
circumstances (obstacles to return property in kind or to
compensate by property of equal value, which appeared due to
factual relations of land use, and needs of society).
4.4. Therefore, the statement of the resolve of a citizen,
who meets the requirements for restoration of the rights of
ownership, which are established in the Law, does not mean yet
that the rights of ownership will be restored to him in the way
that he wishes. Alongside, it needs to be noted that after he has
properly stated his resolve, the claimant to property restoration
can reasonably expect that the rights of ownership will be
restored to him in the ways provided for in this law, by
following the procedure established in the Law, and that in the
course of restoration of the rights of ownership the procedure
provided for in the Law will not be violated (the authorised
institutions will not procrastinate the performance of the
actions that are within their competence).
5. As mentioned, by the Constitutional Court ruling of 5
July 2007, 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 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 recognised as being 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.
It was also mentioned that the legal acts (parts thereof)
that were recognised as being in conflict with the Constitution
may not be applied from the day of the official publishing of the
Constitutional Court ruling, also, from that moment, as a rule,
the rights of persons acquired under the legal acts, which were
recognised as being in conflict with the Constitution, may not be
implemented.
6. One of the elements of protection of legitimate
expectations is protection of the rights acquired under the laws
and other legal acts that are not in conflict with the
Constitution; however, in certain special cases also a person's
rights which are acquired under legal acts, which later were
recognised as being in conflict with the Constitution, must be
protected and defended. These provisions of the official
constitutional doctrine, which are referred to by the petitioner,
are related with interpretation of the protection of the rights
that were acquired under legal acts, which later were recognised
as being in conflict with the Constitution.
In the context of the petition at issue, it needs to be
noted that the persons who seek to restore the rights of
ownership have not acquired the rights of ownership to a concrete
object (real property) yet. In its rulings adopted in
constitutional justice cases, wherein the compliance of legal
acts (parts thereof) regulating the restoration of the rights of
ownership of citizens to the existing real property with the
Constitution was considered, the Constitutional Court held more
than once that until the restoration of the property and the
payment of corresponding compensation in the cases where the
property is not returned in kind, the subjective rights of the
former owner are not restored yet. A decision of the institution
authorised by the state to return the property in kind or
compensate for it have the legal meaning whereby only as from the
adoption of such a decision the former owner acquires the rights
of the owner to such property.
7. In this context it also needs to be mentioned that the
Constitutional Court ruling of 5 July 2007, whose construction is
requested, was adopted in the constitutional justice case,
wherein the compliance of the provisions of the Law regulating
the restoration of the rights of ownership in state parks and
state reserves with the Constitution was assessed. It was held in
the Constitutional Court ruling of 5 July 2007 that state parks
and state reserves are regarded as territories of special value.
It was also held that 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.
7.1. In its acts the Constitutional Court has emphasised
more than once that, under the Constitution, natural environment,
wildlife and plants, individual objects of nature as well as
districts of particular value are the national values of
universal significance; to ensure their protection and rational
use and augmentation of natural resources is the public interest
to guarantee which is the constitutional obligation of the state
(Constitutional Court rulings of 13 May 2005, 27 June 2007 and 6
September 2007).
7.2. In its ruling of 6 September 2007, the Constitutional
Court also noted that the state, while having the constitutional
obligation to act so that one would guarantee the protection of
natural environment and its individual objects, rational use of
natural resources, their restoration and increase, may establish,
by means of a law, also such legal regulation whereby the use of
individual objects of natural environment (natural resources)
would be limited.
7.3. The following has been held in the Constitutional Court
ruling of 5 July 2007, the construction of the provisions of
which is requested: 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; 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.
In addition, it was emphasised in the said Constitutional
Court ruling 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, 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.
8. Taking account of the special status of state parks and
state reserves from the point of view of protection of natural
environment and its objects, while the said status being the
grounds to recognise these territories as territories of
particular value and as a national value of universal
significance whose preservation is a public interest, in the
course of decision of issues of restoration of the rights of
ownership in these territories, one cannot disregard the
imperatives of protection of natural environment, wildlife and
plants, of individual objects of nature and of areas of
particular value, all of which stem from the Constitution.
Thus, as it has been held in the Constitutional Court ruling
of 5 July 2007, the interests of the persons to restore the
rights of ownership in a state park or a state reserve, to whom,
according to the Constitution, it is impossible to restore the
rights of ownership in equivalent kind within the territory of a
state park or a state reserve, but who had begun the process of
restoration of the rights of ownership in a state park or a state
reserve prior to the adoption of the said Constitutional Court
ruling, may not be put above the interest to preserve the state
park or state reserve as a national value of exceptional
significance, which, under the Constitution, is recognised a
public interest.
9. Taking account of the arguments set forth, it needs to be
held that, under the Constitutional Court ruling of 5 July 2007
(as mentioned, it was recognised therein that 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 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 the Constitution), the
citizens who used to possess land, forest, or a water body not
within the territory of a state park or a state reserve, also
those citizens, who do not reside in the said territory, may not
be regarded as having the legitimate expectation to restore the
rights of ownership by acquiring as ownership an area of
(correspondingly) land, forest or water body of equal value to
that which they used to possess, which is in the territory of a
state park and state reserve.
10. In this context it needs to be noted that, after it has
been held in the Constitutional Court ruling of 5 July 2007 that,
under the Constitution, the citizens who used to possess land,
forest, or a water body not within the territory of a state park
or a state reserve, also those citizens, who do not reside in the
said territory, may not restore the rights of ownership by
acquiring as ownership an area of (correspondingly) land, forest
or water body of equal value to that which they used to possess,
which is in the territory of a state park and state reserve, one
cannot deny the legitimate expectation of these persons to
restore the rights of ownershipthis expectation persists,
however, it can be implemented by another way of restoration of
the rights of ownership established in the Law.
11. Having held that the citizens who used to possess land,
forest, or a water body not within the territory of a state park
or a state reserve, also those citizens, who do not reside in the
said territory, may not be regarded as having the legitimate
expectation to restore the rights of ownership by acquiring as
ownership an area of (correspondingly) land, forest or water body
of equal value to that which they used to possess, which is in
the territory of a state park and state reserve, the decision of
the question raised by the petitioner, which is "as to from which
moment" there appear the legitimate expectations of these persons
that the rights of ownership will be restored to them by
assigning to ownership an area of (correspondingly) land, forest
or water body of equal value to that which they used to possess,
which is in the territory of a state park and state reserve,
becomes meaningless.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania, and Articles 1 and 61 of the Law on the
Constitutional Court of the Republic of Lithuania, the
Constitutional Court of the Republic of Lithuania has adopted the
following
decision:
To construe that, according to the Constitutional Court
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" of 5 July 2007 (Official Gazette Valstybės žinios,
2007, No. 76-3018), 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 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, may not be
regarded as having the legitimate expectation to restore the
rights of ownership by acquiring as ownership an area of
(correspondingly) land, forest or water body of equal value to
that which they used to possess, which is in the territory of a
state park and state reserve, however, the legitimate expectation
of these persons to restore the rights of ownership by another
way established in the Law cannot be denied.
This decision of the Constitutional Court is final and not
subject to appeal.
The decision is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Kęstutis Lapinskas
Zenonas Namavičius
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis