Case No. 05/07
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF THE PROVISION OF THE LIST OF THE
AGRICULTURAL ENTERPRISES AND ORGANISATIONS NOT SUBJECT
TO PRIVATISATION APPROVED BY RESOLUTION OF THE
GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 540 "ON THE
APPROVAL OF THE LIST OF THE AGRICULTURAL ENTERPRISES AND
ORGANISATIONS NOT SUBJECT TO PRIVATISATION" (WORDING OF
27 FEBRUARY 1992) OF 9 DECEMBER 1991 WITH PARAGRAPH 1 OF
ARTICLE 23 OF THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA, THE CONSTITUTIONAL PRINCIPLE OF A STATE UNDER
THE RULE OF LAW, AND WITH THE PROVISION OF ARTICLE 1 OF
THE REPUBLIC OF LITHUANIA LAW "ON THE PROCEDURE AND
CONDITIONS OF THE RESTORATION OF THE RIGHTS OF OWNERSHIP
OF CITIZENS TO THE EXISTING REAL PROPERTY" (WORDING OF
18 JUNE 1991), AS WELL AS ON THE COMPLIANCE OF THE LIST
OF THE AGRICULTURAL ENTERPRISES AND ORGANISATIONS NOT
SUBJECT TO PRIVATISATION APPROVED BY RESOLUTION OF THE
GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 540 "ON THE
APPROVAL OF THE LIST OF THE AGRICULTURAL ENTERPRISES AND
ORGANISATIONS NOT SUBJECT TO PRIVATISATION" (WORDING OF
14 MAY 1999) OF 9 DECEMBER 1991, RESOLUTION OF THE
GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 579 "ON
ALLOCATION OF A LAND LOT AND ON AMENDING THE TARGETED
PURPOSE OF THE LAND USE" OF 14 MAY 1999 AND RESOLUTION
OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 266
"ON PARTIAL AMENDMENT OF GOVERNMENT RESOLUTION NO. 1026
'ON USERS OF THE LAND ALLOTTED TO SCIENTIFIC AND
EDUCATIONAL ESTABLISHMENTS AND TRANSFERRED TO STATE
SPECIALISED SEED-GROWING AND STOCK-BREEDING FARMS,
SPECIAL-PURPOSE STOCK-BREEDING COMPANIES AND ON
ESTABLISHING THE SIZE OF LAND LOTS USED BY THESE USERS'
OF 13 AUGUST 1998" OF 8 MARCH 2001 WITH PARAGRAPHS 1 AND
3 OF ARTICLE 23 OF THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA, THE CONSTITUTIONAL PRINCIPLE OF A STATE UNDER
THE RULE OF LAW AND WITH THE PROVISION OF THE PREAMBLE
(WORDING OF 1 JULY 1997) TO THE REPUBLIC OF LITHUANIA
LAW ON THE RESTORATION OF THE RIGHTS OF OWNERSHIP OF
CITIZENS TO THE EXISTING REAL PROPERTY
20 May 2008
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis,
Algirdas Taminskas and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representatives of the Government of
the Republic of Lithuania, the party concerned, who were
Aleksandras Muzikevičius, Head of the Animal Husbandry and
Veterinary Division of the Common Market Organisation Department
of the Ministry of Agriculture of the Republic of Lithuania,
Jelena Liaskovskaja, Head of Law Division of the National Land
Service of the Ministry of Agriculture, Algimantas Gutauskas,
Deputy Director of the Law Department of the Ministry of National
Defence of the Republic of Lithuania, and Olga Pacevičienė, chief
specialist of the Law Division of the Ministry of Education and
Science of the Republic of Lithuania,
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its public
hearing on 12 May 2008 heard constitutional justice case No. 05/
07 subsequent to the petition of the Kaunas Regional Court, the
petitioner, requesting to investigate the following:
- whether the provision of the List of the Agricultural
Enterprises and Organisations not Subject to Privatisation
approved by Resolution of the Government of the Republic of
Lithuania No. 540 "On the Approval of the List of the
Agricultural Enterprises and Organisations not Subject to
Privatisation" of 9 December 1991 (wording of 27 February 1992)
that the area of the farming lands not subject to privatisation
assigned to Lithuanian Veterinary Academy is 800 hectares was not
in conflict with the principle of a state under the rule of law
which, according to the petitioner, is consolidated in the
Preamble to the Constitution of the Republic of Lithuania, with
Paragraph 1 of Article 23 of the Constitution of the Republic of
Lithuania, with the principle of legitimate expectations which,
according to the petitioner, is consolidated in Article 29 of the
Constitution of the Republic of Lithuania and with Article 1 of
the Republic of Lithuania Law "On the Procedure and Conditions of
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property" (wording of 18 June 1991);
- whether the List of the Agricultural Enterprises and
Organisations not Subject to Privatisation approved by Resolution
of the Government of the Republic of Lithuania No. 540 "On the
Approval of the List of the Agricultural Enterprises and
Organisations not Subject to Privatisation" of 9 December 1991
(wording of 27 February 1992), to the extent that it has assigned
the land, to which, according to the petitioner, the heirs of J.
Jerinas, the former owner of the land, wish to restore the rights
of ownership, to Lithuanian Veterinary Academy, was not in
conflict with the principle of a state under the rule of law
which, according to the petitioner, is consolidated in the
Preamble to the Constitution of the Republic of Lithuania, with
Paragraphs 1 and 3 of Article 23 of the Constitution of the
Republic of Lithuania, with the principle of legitimate
expectations which, according to the petitioner, is consolidated
in Article 29 of the Constitution of the Republic of Lithuania
and with the Preamble (wording of 1 July 1997) to the Republic of
Lithuania Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property;
- whether Resolution of the Government of the Republic of
Lithuania No. 579 "On Allocation of a Land Lot and on Amending
the Targeted Purpose of the Land Use" of 14 May 1999, to the
extent that it has assigned the land, to which, according to the
petitioner, the heirs of J. Jerinas, the former owner of the
land, wish to restore the rights of ownership, to the Weaponry
Fund of the Republic of Lithuania under the Government of the
Republic of Lithuania, is not in conflict with the principle of a
state under the rule of law which, according to the petitioner,
is consolidated in the Preamble to the Constitution of the
Republic of Lithuania, with Paragraphs 1 and 3 of Article 23 of
the Constitution of the Republic of Lithuania, with the principle
of legitimate expectations which, according to the petitioner, is
consolidated in Article 29 of the Constitution of the Republic of
Lithuania and with the Preamble (wording of 1 July 1997) to the
Republic of Lithuania Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property;
- whether Resolution of the Government of the Republic of
Lithuania No. 266 "On Partial Amendment of Government Resolution
No. 1026 'On Users of the Land Allotted to Scientific and
Educational Establishments and Transferred to State Specialised
Seed-Growing and Stock-Breeding Farms, Special-Purpose Stock-
Breeding Companies and on Establishing the Size of Land Lots Used
by These Users' of 13 August 1998" of 8 March 2001, to the extent
that it has assigned the land, to which, according to the
petitioner, the heirs of J. Jerinas, the former owner of the
land, wish to restore the rights of ownership, to Lithuanian
Veterinary Academy, is not in conflict with the principle of a
state under the rule of law which, according to the petitioner,
is consolidated in the Preamble to the Constitution of the
Republic of Lithuania, with Paragraphs 1 and 3 of Article 23 of
the Constitution of the Republic of Lithuania, with the principle
of legitimate expectations which, according to the petitioner, is
consolidated in Article 29 of the Constitution of the Republic of
Lithuania and with the Preamble (wording of 1 July 1997) to the
Republic of Lithuania Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property.
The Constitutional Court
has established:
I
1. The Kaunas Regional Court, the petitioner, was
investigating a civil case. By its ruling, the said court
suspended the consideration of the case and applied to the
Constitutional Court with the petition requesting to investigate
the following:
(1) whether Government Resolution No. 540 "On the Approval
of the List of the Agricultural Enterprises and Organisations not
Subject to Privatisation" of 9 December 1991 to the extent that
it establishes the area of the farming lands not subject to
privatisation which, according to the petitioner, "must be
assigned to Lithuanian Veterinary Academy" is not in conflict
with the principle of a state under the rule of law which,
according to the petitioner, is consolidated in the Preamble to
the Constitution, with the provision of Article 23 of the
Constitution that property shall be inviolable, with the
principle of legitimate expectations which, according to the
petitioner, is consolidated in Article 29 of the Constitution and
with Article 1 of the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property" (wording of 18 June 1991);
(2) whether Resolution of the Government of the Republic of
Lithuania No. 134 'On the Partial Amendment of Resolution of the
Government of the Republic of Lithuania No. 540 of 9 December
1991 and Resolution No. 59 of 28 January 1992' of 27 February
1992 to the extent that it establishes the farming lands not
subject to privatisation which, according to the petitioner,
"must be assigned to Lithuanian Veterinary Academy" is not in
conflict with the principle of a state under the rule of law
which, according to the petitioner, is consolidated in the
Preamble to the Constitution, with the provision of Article 23 of
the Constitution that property shall be inviolable, with the
principle of legitimate expectations which, according to the
petitioner, is consolidated in Article 29 of the Constitution and
with Article 1 of the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property" (wording of 18 June 1991);
(3) whether Government Resolution No. 579 "On Allocation of
a Land Lot and on Amending the Targeted Purpose of the Land Use"
of 14 May 1999 is not in conflict with the principle of a state
under the rule of law which, according to the petitioner, is
consolidated in the Preamble to the Constitution, with the
provisions of Article 23 of the Constitution that property shall
be inviolable and may be taken over only for the needs of society
according to the procedure established by law and shall be justly
compensated for, with the principle of legitimate expectations
which, according to the petitioner, is consolidated in Article 29
of the Constitution and with the provision entrenched, according
to the petitioner, in the Preamble (wording of 13 May 1999) to
the Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property that the real property must be
returned to citizens first of all in kind;
(4) whether Government Resolution No. 584 "On Partial
Amendment of Resolution of the Government of the Republic of
Lithuania No. 540 'On the Approval of the List of the
Agricultural Enterprises and Organisations Not Subject to
Privatisation' of 9 December 1991" of 14 May 1999 is not in
conflict with the principle of a state under the rule of law
which, according to the petitioner, is consolidated in the
Preamble to the Constitution, with the provisions of Article 23
of the Constitution that property shall be inviolable and may be
taken over only for the needs of society according to the
procedure established by law and shall be justly compensated for,
with the principle of legitimate expectations which, according to
the petitioner, is consolidated in Article 29 of the Constitution
and with the provision entrenched, according to the petitioner,
in the Preamble (wording of 13 May 1999) to the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property that the real property must be returned to
citizens first of all in kind;
(5) whether Government Resolution No. 266 "On Partial
Amendment of Government Resolution No. 1026 'On Users of the Land
Allotted to Scientific and Educational Establishments and
Transferred to State Specialised Seed-Growing and Stock-Breeding
Farms, Special-Purpose Stock-Breeding Companies and on
Establishing the Size of Land Lots Used by These Users' of 13
August 1998" of 8 March 2001 is not in conflict with the
principle of a state under the rule of law which, according to
the petitioner, is consolidated in the Preamble to the
Constitution, with the provisions of Article 23 of the
Constitution that property shall be inviolable and may be taken
over only for the needs of society according to the procedure
established by law and shall be justly compensated for, with the
principle of legitimate expectations which, according to the
petitioner, is consolidated in Article 29 of the Constitution and
with the provision entrenched, according to the petitioner, in
the Preamble (wording of 10 October 2000) to the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property that the real property must be returned to
citizens first of all in kind.
2. By the Constitutional Court Decision "On the petition of
the Kaunas Regional Court requesting to investigate whether
Resolution of the Government of the Republic of Lithuania No. 540
'On the Approval of the List of the Agricultural Enterprises and
Organisations not Subject to Privatisation' of 9 December 1991
and Resolution of the Government of the Republic of Lithuania No.
134 'On the Partial Amendment of Resolution of the Government of
the Republic of Lithuania No. 540 of 9 December 1991 and
Resolution No. 59 of 28 January 1992' of 27 February 1992 are not
in conflict with the Constitution of the Republic of Lithuania
and Article 1 of the Republic of Lithuania Law 'On the Procedure
and Conditions of the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property' (wording of 18 June
1991), whether Resolution of the Government of the Republic of
Lithuania No. 579 'On Allocation of a Land Lot and on Amending
the Targeted Purpose of the Land Use' of 14 May 1999 and
Resolution of the Government of the Republic of Lithuania No. 584
'On Partial Amendment of Resolution of the Government of the
Republic of Lithuania No. 540 "On the Approval of the List of the
Agricultural Enterprises and Organisations not Subject to
Privatisation" of 9 December 1991' of 14 May 1999 are not in
conflict with the Constitution of the Republic of Lithuania and
the Preamble to the Republic of Lithuania Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 13 May 1999), also whether Resolution of the
Government of the Republic of Lithuania No. 266 'On Partial
Amendment of Resolution of the Government of the Republic of
Lithuania No. 1026 "On Users of the Land Allotted to Scientific
and Educational Establishments and Transferred to State
Specialised Seed-Growing and Stock-Breeding Farms, Special-
Purpose Stock-Breeding Companies, and on Establishing the Size of
Land Lots Used by these Users" of 13 August 1998' of 8 March 2001
is not in conflict with the Constitution of the Republic of
Lithuania and the Preamble to the Republic of Lithuania Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 10 October 2000)" of 17
January 2007, it was decided to accept the requests of the Kaunas
Regional Court, the petitioner, to investigate the following:
- whether the provision of the List of the Agricultural
Enterprises and Organisations not Subject to Privatisation that
the area of the farming lands not subject to privatisation
assigned to Lithuanian Veterinary Academy (hereinafter also
referred to as the LVA) shall be 800 hectares, which was approved
by Government Resolution No. 540 "On the Approval of the List of
the Agricultural Enterprises and Organisations not Subject to
Privatisation" of 9 December 1991 (wording of 27 February 1992)
(hereinafter also referred to as Government resolution No. 540 of
9 December 1991 (wording of 27 February 1992)), was not in
conflict with the principle of a state under the rule of law
which, according to the petitioner, is entrenched in the Preamble
to the Constitution, with Paragraph 1 of Article 23 of the
Constitution, with the principle of legitimate expectations
entrenched, according to the petitioner, in Article 29 of the
Constitution, and Article 1 of the Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" (wording of 18 June
1991);
- whether the List of the Agricultural Enterprises and
Organisations Not Subject to Privatisation (wording of 14 May
1999) approved by Government Resolution No. 540 "On the Approval
of the List of the Agricultural Enterprises and Organisations Not
Subject to Privatisation" of 9 December 1991 (wording of 14 May
1999) (hereinafter also referred to as Government resolution No.
540 of 9 December 1991 (wording of 14 May 1999)), to the extent
that it has assigned the land to which, according to the
petitioner, the heirs of J. Jerinas, the former owner of the
land, wish to restore the rights of ownership to Lithuanian
Veterinary Academy, was not in conflict with the principle of a
state under the rule of law which, according to the petitioner,
is entrenched in the Preamble to the Constitution, with
Paragraphs 1 and 3 of Article 23 of the Constitution, with the
principle of legitimate expectations entrenched, according to the
petitioner, in Article 29 of the Constitution, and with the
Preamble (wording of 1 July 1997) to the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property;
- whether Government Resolution No. 579 "On Allocation of a
Land Lot and on Amending the Targeted Purpose of the Land Use" of
14 May 1999 (hereinafter also referred to as Government
resolution No. 579 of 14 May 1999) to the extent that it has
assigned the land to which, according to the petitioner, the
heirs of J. Jerinas, the former owner of the land, wish to
restore the rights of ownership to the Weaponry Fund of the
Republic of Lithuania under the Government of the Republic of
Lithuania (hereinafter also referred to as the Weaponry Fund), is
not in conflict with the principle of a state under the rule of
law which, according to the petitioner, is entrenched in the
Preamble to the Constitution, with Paragraphs 1 and 3 of Article
23 of the Constitution, with the principle of legitimate
expectations entrenched, according to the petitioner, in Article
29 of the Constitution, and with the Preamble (wording of 1 July
1997) to the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property;
- whether Government Resolution No. 266 "On Partial
Amendment of Resolution of the Government of the Republic of
Lithuania No. 1026 'On Users of the Land Allotted to Scientific
and Educational Establishments and Transferred to State
Specialised Seed-growing and Stock-breeding Farms, Special-
purpose Stock-breeding Companies, and on Establishing the Size of
Land Lots Used by These Users' of 13 August 1998" of 8 March 2001
(hereinafter also referred to as Government resolution No. 266 of
8 March 2001) to the extent that it has assigned the land (to
which, according to the petitioner, the heirs of J. Jerinas, the
former owner of the land, wish to restore the rights of
ownership) to Lithuanian Veterinary Academy, is not in conflict
with the principle of a state under the rule of law which,
according to the petitioner, is entrenched in the Preamble to the
Constitution, with Paragraphs 1 and 3 of Article 23 of the
Constitution, with the principle of legitimate expectations
entrenched, according to the petitioner, in Article 29 of the
Constitution, and with the Preamble (wording of 1 July 1997) to
the Law on the Restoration of the Rights of Ownership of Citizens
to the Existing Real Property.
3. In Item 2 of the said decision, the Constitutional Court
refused to consider the petition of the Kaunas Regional Court,
the petitioner, requesting to investigate whether Government
Resolution No. 540 "On the Approval of the List of the
Agricultural Enterprises and Organisations not Subject to
Privatisation" of 9 December 1991 to the extent that it provides
that the area of the farming lands not subject to privatisation
assigned to Lithuanian Veterinary Academy shall be 1000 hectares
is not in conflict with the principle of a state under the rule
of law which, according to the petitioner, is entrenched in the
Preamble to the Constitution, with the provision of Article 23 of
the Constitution that property shall be inviolable, with the
principle of legitimate expectations entrenched, according to the
petitioner, in Article 29 of the Constitution, and Article 1 of
the Law "On the Procedure and Conditions of the Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property" (wording of 18 June 1991) as being not within the
jurisdiction of the Constitutional Court because the legal
regulation established in the List of the Agricultural
Enterprises and Organisations not Subject to Privatisation
(wording of 9 December 1991) approved by this Government
resolution was amended by Government Resolution No. 134 "On
Partial Amendment of Resolution of the Government of the Republic
of Lithuania No. 540 of 9 December 1991 and Resolution No. 59 of
28 January 1992" of 27 February 1992 and lost its validity yet
before the adoption and coming into force of the Constitution.
II
The petition of the petitioner is grounded on the following
arguments.
1. After by the disputed legal acts, the land lots which,
according to the petitioner, also included a part of land,
regarding which the requests of the applicants to restore the
rights of ownership by returning it in kind had been submitted,
were transferred to the LVA and the Weaponry Fund for use, one
violated Article 1 of the Law "On the Restoration of the Rights
of Ownership of Citizens to the Existing Real Property" which
established the priority of restoration of the rights of
ownership in kind, as well as the principle of lawfulness which
requires that decisions adopted by the institutions of the state
power would be grounded on legal norms and their content would
meet the requirements of the legal norms.
2. The disputed legal acts were adopted without taking
account of the fact that at the time of transfer of the land lots
to the LVA and the Weaponry Fund, the claimant had already
submitted a request to restore the rights of ownership to a part
of this land. In the opinion of the petitioner, on the grounds of
Item 10 of the Procedure for Submitting and Examining Requests
Regarding Taking of Land for Public Needs, as well as Recovering
Losses Suffered from the Taking of Land which was approved by
Government Resolution No. 1379 "On Approving the Procedure for
Submitting and Examining Requests Regarding Taking of Land for
Public Needs, as well as Recovering Losses Suffered from the
Taking of Land" of 24 October 1995, first of all, one had to
decide the question of returning the land in kind to those
persons who had submitted requests to restore the rights of
ownership, and only afterwards one could adopt a decision
regarding the taking over of the land for the needs of society
from the owners to whom the rights of ownership were restored. By
transferring the land to the LVA and the Weaponry Fund as a free
state-owned land by means of the disputed resolutions, without
deciding the question of returning it in kind to the persons who
seek to restore the rights of ownership, one violated Paragraph 1
of Article 23 of the Constitution which ensures the inviolability
of property.
3. By the disputed legal acts, the land was transferred for
the use of needs of society without confirming the concrete
limits of the land lot which is necessary for satisfying the
needs of society and without assessing the size of the concrete
land lot which is necessary for satisfying the needs of society.
By transferring land without proving the concrete need of society
and its extent, one violated Paragraph 3 of Article 23 of the
Constitution, in which it is established that property may be
taken over only for the needs of society according to the
procedure established by law and shall be justly compensated for.
4. The principle of protection of legitimate expectations
implies the duty of the state as well as state institutions which
implement the state power and other state institutions to follow
the obligations assumed by the state. This principle also means
protection of acquired rights, i.e. persons have the right to
reasonably expect that the rights acquired under valid laws and
other legal acts which are not in conflict with the Constitution
will be retained for the established time and that it will be
possible to implement these rights in reality. Because of the
fact that the obligations assumed by the state to the heirs of J.
Jerinas have not yet been fulfilled, their legitimate
expectations are violated.
III
In the course of preparation of the case for the
Constitutional Court hearing, written explanations from the
representatives of the Government, the party concerned, who were
A. Muzikevičius, J. Liaskovskaja, A. Gutauskas and O.
Pacevičienė, were received, in which it is stated that the
disputed resolutions of the Government are not (were not) in
conflict with the Constitution and laws. The position of the
representatives of the Government, the party concerned, is based
on the following arguments.
1. Taking account of the provision of the official
constitutional doctrine that providing there is no possibility to
restore property in kind, fair compensation also ensures
restoration of property ownership rights, in the process of
restoration of rights of ownership one must co-ordinate the
interests of the former owners of land until its nationalisation,
the interests of the persons to whom the land was allocated for
use after it had been nationalised and the interests of the
entire society. Therefore, the legislator established that the
rights of ownership may be restored not only by returning the
land in kind, but also in other ways established in the law.
While restoring the rights of ownership, one may not only satisfy
the interests of persons who wish to restore the rights of
ownership by denying the interests of those legitimate users of
land who for many years have been engaged in practical
educational or scientific activity in the land lots allocated
under the procedure established by the legal acts. Under the Law
"On the Procedure and Conditions of the Restoration of the Rights
of Ownership of Citizens to the Existing Real Property", the
citizens who have the right to restore the rights of ownership
have acquired a legitimate expectation that their rights of
ownership would be restored under the procedure and conditions
established by this law, however, according to this law, a
limited restitution is performeddue to concurrence of factual
land-tenure relations, the rights of ownership may not be
restored by returning land in kind which was at the place before
nationalisation to all persons, because certain land-tenures were
attributed to the land which is bought out by the state,
including scientific and educational establishments for
experiments and other educational needs. Thus, the legislator did
not provide the grounds to citizens, in situations where
scientific and educational establishments used the land to be
returned to those citizens, to expect returning of the land in
kind, i.e. these citizens did not acquire the legitimate
expectations that it would be possible to retrieve the land in
the former place in kind in the course of restoration of the
rights of ownership.
2. The LVA is the only institution of science and studies
which prepares veterinary specialists. While preparing them for
qualified work, one must create conditions not only for
theoretical education, but also for practical training,
therefore, one must provide this scientific and educational
establishment not only with the specialised software and
hardware, but it must also have the land in which feeding crops
and other plants would be grown and animals would be bred and
raised. In addition, the Practical Instruction and Research
Centre of the LVA is the main base of implementation of
programmes of veterinary medicine and veterinary food safety of
the Veterinary Faculty of this academy. Therefore, the legal
regulation which creates the possibility to attribute the land
allocated for the experiments and other scientific needs of the
scientific and educational establishments to the land which is
bought out by the state, i.e. which is not to be returned in kind
to its former owners, allows to ensure further functioning of the
scientific and educational establishments (in this case, the
LVA).
3. The land lot was allocated to Lithuanian Veterinary
Academy while taking account of the need established according to
the number of students (according to the number of students and
the specialisations of science chosen by them, one establishes
the necessary productive potential, the number of cattle and,
correspondingly, the land lot which is necessary for breeding
these cattle). In addition, in 2002, the European Association of
Establishments for Veterinary Education, through the mediation of
the Technical Assistance and Information Exchange Instrument of
the European Commission, carried out a comprehensive
international accreditation assessment of the study programme of
veterinary medicine. The experts of the European Union stated
that the Practical Instruction and Research Centre of the LVA is
necessary for veterinary and animal husbandry. This is also
required in Directive 78/1027/EEC and 78/1026/EEC of the Council
of the European Communities of 18 December 1978 and Directive
2005/36/EC of the European Parliament and of the Council of 7
September 2005 on the recognition of professional qualifications,
in which it is emphasised that learning and test farms with
animals of various kinds are necessary so that the professional
qualification of the specialists trained in states of the
European Union would be recognised.
4. According to the representatives of the party concerned,
until the rights of ownership are restored under the conditions
and procedure established in a special law for the former owners
and other persons who wish to restore the rights of ownership to
the existing real property, they are not considered as owners of
this property, therefore, until that time, they do not acquire
the subjective rights of the owner to this property. The
representatives of the party concerned do not agree with the
statement of the petitioner that one should compensate to the
former owner of the property whose land owned before
nationalisation is allocated to the land which is bought out by
the state not under the special Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property,
but following the legal acts which regulate buying out of land
from its owners for the need of society.
5. By the Republic of Lithuania Law on the Basics of
National Security, the Weaponry Fund has been granted an
exclusive right to provide the system of national defence and
state institutions with weapons, military technique, ammunition
and explosives, as well as to produce and repair weaponry,
ammunition and explosives. Following this law and the interests
of national security, by its Resolution No. 2S of 21 December
1996, the State Defence Council of the Republic of Lithuania
decided to establish a weaponry factory in Lithuania. The place
of a land lot which was necessary for it was chosen by the
commission composed of the Ministry of Agriculture, the state
enterprise State Land Survey Institute and the representatives of
the Administration of the Chief of Kaunas County and the Weaponry
Fund; this commission, referring to a study which grounds the
suitability of the land lot of the Vijūkai village of Užliedžiai
cadastre location of the Kaunas district, drew up an act on
selection of the lot for construction.
6. According to the representatives of the party concerned,
by building the factory of weaponry, one aimed to provide the
Lithuanian army with ammunition so that its weaponry would meet
the NATO standards. Therefore, the land lot was allocated to the
Weaponry Fund taking account of the need of society.
7. After by Government resolution No. 584 of 14 May 1999 the
area of the farming lands assigned to the LVA was reduced to
767.5 hectares and by Government Resolution No. 579 of the same
day the land lot of 32.5 hectares which had been taken from the
LVA was allocated to the Weaponry Fund for building the weaponry
factory, the aforementioned land lot fell into another category
of land which is bought out by the state, therefore, it did not
become a free land lot which may be returned in kind.
IV
At the Constitutional Court hearing, the representatives of
the Government, the party concerned, A. Muzikevičius, J.
Liaskovskaja, A. Gutauskas and O. Pacevičienė, reiterated the
arguments set forth in their written explanations, as well as
presented additional explanations.
The Constitutional Court
holds that:
I
1. The petitioner requests to investigate the compliance of
the disputed Government resolutions inter alia with the principle
of a state under the rule of law which is enshrined, according to
the petitioner, in the Preamble to the Constitution, as well as
with Article 29 of the Constitution which, according to the
petitioner, enshrines the principle of legitimate expectations.
2. The Constitutional Court has held more than once that the
constitutional principle of a state under the rule of law may not
be construed as the one which is entrenched only in the Preamble
to the Constitution, that the constitutional principle of a state
under the rule of law integrates various values enshrined in, and
protected and defended by the Constitution, that this principle
comprises a range of various interrelated imperatives. The
Constitutional Court has emphasised more than once that the
inseparable elements of a state under the rule of law are
protection of legitimate expectations, as well as legal certainty
and legal security.
3. Taking account of these provisions of the official
constitutional doctrine, in this constitutional justice case the
Constitutional Court will investigate the compliance of the
Government resolutions inter alia with the constitutional
principle of a state under the rule of law.
4. It is obvious from the arguments of the petition of the
Kaunas Regional Court, the petitioner, that he had doubts
regarding the compliance of Government resolution No. 540 of 9
December 1991 (wording of 27 February 1992) with not entire
Article 1 (wording of 18 June 1991) of the Law "On the Procedure
and Conditions of the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property", but only with the
provision "the right of ownership to the existing real property
shall be restored: (1) by returning the disseized property in
kind or equivalent kind; (2) by paying single state grants to the
persons specified in Article 2 of this law enabling them to take
over a corresponding part of the state-owned (society-owned)
property which is being privatised if it is impossible to return
the disseized property in kind or in equivalent kind <...>", and
regarding the compliance of Government resolution No. 540 of 9
December 1991 (wording of 14 May 1999), Resolution No. 579 of 14
May 1999 and Resolution No. 266 of 8 March 2001 not with all the
Preamble (wording of 1 July 1997) to the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property, but only with the provision "the restoration of
continuation of the rights of ownership is based on the provision
of the 18 June 1991 Law of the Republic of Lithuania 'On the
Procedure and Conditions of Restoration of the Rights of
Ownership to the Existing Real Property'the existing real
property shall be returned to citizens of the Republic of
Lithuania, and in the event it is impossible to do so, they shall
be compensated justly" of the Preamble to this law.
5. Thus, in this constitutional justice case subsequent to
the petition of the Kaunas Regional Court, the petitioner, it
will be investigated the following:
- whether the provision of the List of the Agricultural
Enterprises and Organisations not Subject to Privatisation
approved by Government Resolution No. 540 "On the Approval of the
List of the Agricultural Enterprises and Organisations not
Subject to Privatisation" of 9 December 1991 (wording of 27
February 1992) that the area of the farming lands not subject to
privatisation assigned to Lithuanian Veterinary Academy is 800
hectares was not in conflict with Paragraph 1 of Article 23 of
the Constitution, with the constitutional principle of a state
under the rule of law, and with the provision "the right of
ownership to the existing real property shall be restored: (1) by
returning the disseized property in kind or equivalent kind; (2)
by paying single state grants to the persons specified in Article
2 of this law enabling them to take over a corresponding part of
the state-owned (society-owned) property which is being
privatised if it is impossible to return the disseized property
in kind or in equivalent kind <...>" Article 1 of the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording of
18 June 1991);
- whether the List of the Agricultural Enterprises and
Organisations not Subject to Privatisation approved by Government
Resolution No. 540 "On the Approval of the List of the
Agricultural Enterprises and Organisations not Subject to
Privatisation" (wording of 14 May 1999) of 9 December 1991, to
the extent that it has assigned the land to Lithuanian Veterinary
Academy was not in conflict with Paragraphs 1 and 3 of Article 23
of the Constitution, with the constitutional principle of a state
under the rule of law, and with the provision "the restoration of
continuation of the rights of ownership is based on the provision
of the 18 June 1991 Law of the Republic of Lithuania 'On the
Procedure and Conditions of Restoration of the Rights of
Ownership to the Existing Real Property'the existing real
property shall be returned to citizens of the Republic of
Lithuania, and in the event it is impossible to do so, they shall
be compensated justly" of the Preamble (wording of 1 July 1997)
to the Law on Restoration of the Rights of Ownership of Citizens
to the Existing Real Property;
- whether Government Resolution No. 579 "On Allocation of a
Land Lot and on Amending the Targeted Purpose of the Land Use" of
14 May 1999, to the extent that it has assigned the land to
Weaponry Fund is not in conflict with Paragraphs 1 and 3 of
Article 23 of the Constitution, with the constitutional principle
of a state under the rule of law, and with the provision "the
restoration of continuation of the rights of ownership is based
on the provision of the 18 June 1991 Law of the Republic of
Lithuania 'On the Procedure and Conditions of Restoration of the
Rights of Ownership to the Existing Real Property'the existing
real property shall be returned to citizens of the Republic of
Lithuania, and in the event it is impossible to do so, they shall
be compensated justly" of the Preamble (wording of 1 July 1997)
to the Law on Restoration of the Rights of Ownership of Citizens
to the Existing Real Property;
- whether Government Resolution No. 266 "On Partial
Amendment of Resolution of the Government of the Republic of
Lithuania No. 1026 'On Users of the Land Allotted to Scientific
and Educational Establishments and Transferred to State
Specialised Seed-growing and Stock-breeding Farms, Special-
purpose Stock-breeding Companies, and on Establishing the Size of
Land Lots Used by These Users' of 13 August 1998" of 8 March
2001, to the extent that it has assigned the land to Lithuanian
Veterinary Academy, is not in conflict with Paragraphs 1 and 3 of
Article 23 of the Constitution, with the constitutional principle
of a state under the rule of law, and with the provision "the
restoration of continuation of the rights of ownership is based
on the provision of the 18 June 1991 Law of the Republic of
Lithuania 'On the Procedure and Conditions of Restoration of the
Rights of Ownership to the Existing Real Property'the existing
real property shall be returned to citizens of the Republic of
Lithuania, and in the event it is impossible to do so, they shall
be compensated justly" of the Preamble (wording of 1 July 1997)
to the Law on Restoration of the Rights of Ownership of Citizens
to the Existing Real Property.
II
1. While deciding whether the disputed Government
resolutions are not (were not) in conflict with the Constitution
and laws, it is necessary to establish by what legal acts and on
what grounds the land was allocated to the LVA and the Weaponry
Fund and what is the legal status of this ground.
2. On 30 July 1991, the Supreme Council of the Republic of
Lithuania adopted the Law on Privatisation of Property of
Agricultural Enterprises which was designed to regulate the
conditions and procedure of privatisation of property of
agricultural enterprises (Paragraph 1 of Article 1). In Paragraph
2 of Article 1 of this law, it was established: "This law shall
not apply to either state agricultural industrial enterprises
whose property is being privatised under the Law of the Republic
of Lithuania on the Initial Privatisation of State Property, or
to specialised agricultural enterprises which are not subject to
privatisation. The list of such enterprises shall be established
by the Government of the Republic of Lithuania". Paragraph 1 of
Article 2 thereof established that "property of agricultural
enterprises, with the exception of property which is subject to
returning to the owners and other persons as defined in the 'Law
of the Republic of Lithuania on Procedure and Conditions of the
Restoration of Ownership Rights to the Existing Real Property',
shall be subject to privatisation".
Thus, by the Law on Privatisation of Property of
Agricultural Enterprises, property of agricultural enterprises
was recognised as subject to privatisation with the exception of
specialised agricultural enterprises which are not subject to
privatisation (Paragraph 2 of Article 1), as well as with the
exception of property which is subject to returning to former
owners while restoring the rights of ownership (Paragraph 1 of
Article 2). In other words, this law singled out two categories
of property of agricultural enterprises which is not subject to
privatisation: (1) the property of specialised agricultural
enterprises which, due to certain peculiarities, is necessary for
the necessities of the state and may not be assigned to private
property; (2) the property which may not be transferred to
private property on the grounds of privatisation transaction,
however, its assignment to private property is not absolutely
restricted, since, while in the course of the restitution, it has
to be returned to the former owners.
3. On 30 July 1991, the Supreme Council also adopted
Resolution No. I-1629 "On the Procedure of Coming into Force of
the Law on Privatisation of Property of Agricultural Enterprises"
by Item 3 of which it was established that the Government had
"until 15 September 1991, to draw the lists of agricultural
enterprises which are subject to privatisation and which are not
subject to privatisation under this Law and under the Law on the
Initial Privatisation of State Property and, if necessary, to
establish the sequence of their privatisation".
When implementing this resolution of the Supreme Council, on
9 December 1991, the Government adopted Resolution No. 540 "On
the Approval of the List of the Agricultural Enterprises and
Organisations not Subject to Privatisation" which approved the
List of the Agricultural Enterprises and Organisations not
Subject to Privatisation and permitted that the land area not
subject to privatisation be specified in the course of preparing
plans of organisation of land exploitation. The List of the
Agricultural Enterprises and Organisations not Subject to
Privatisation inter alia enshrined that the area of the farming
lands not subject to privatisation assigned to Lithuanian
Veterinary Academy shall be 1000 hectares.
4. On 27 February 1992, the Government adopted Resolution
No. 134 "On Partial Amendment of Resolution of the Government of
the Republic of Lithuania No. 540 of 9 December 1991 and
Resolution No. 59 of 28 January 1992" (hereinafter also referred
to as Government resolution No. 134 of 27 February 1992) by Item
1 whereof the List of the Agricultural Enterprises and
Organisations Not Subject to Privatisation approved by Government
Resolution No. 540 "On the Approval of the List of the
Agricultural Enterprises and Organisations Not Subject to
Privatisation" of 9 December 1991 (wording of 9 December 1991)
was amended and set forth in a new wording. This list (wording of
27 February 1992) inter alia enshrined that the area of the
farming lands not subject to privatisation assigned to Lithuanian
Veterinary Academy shall be 800 hectares, i.e. the area of the
farming lands not subject to privatisation which had been
established for the LVA was reduced as from 1000 hectares to 800
hectares.
In this context, it needs to be noted that by the
aforementioned Government resolution No. 134 of 27 February 1992,
only the area of the farming lands used by the LVA was
established and the limits of the land lot were determined by
Order of the Chief of the Kaunas County No. 05-5923 "Regarding
Use of the Land Lots of Lithuanian Veterinary Academy for
Agricultural Activity in the Kaunas Region" of 2 December 1996
(hereinafter also referred to as Order of the Chief of the Kaunas
County No. 05-5923 of 2 December 1996); later they were specified
by Order of the Chief of the Kaunas County No. 05-8064 "Regarding
Confirmation of the Plans of Land Which is Bought out by the
State and not Subject to Privatisation (Kaunas D.)" of 31
December 1998 (hereinafter referred to as Order No. 05-8064 of 31
December 1998), by Order No. 02-05-4060 "On Partial Amendment of
Order of the Chief of the Kaunas County No. 05-8064 (Kaunas D.)
of 31 December 1998" of 30 May 2001 (hereinafter referred to as
Order No. 02-05-4060 of 30 May 2001), by Order No. 02-05-4555 "On
Recognition of Order of the Chief of the Kaunas County No. 05-
5923 of 2 December 1996 as no Longer Valid, Allocating Land Lots
for Use and on Specification of Registers of Real Property (Land
Lots) No. 52/1107, No. 52/1101, No. 52/1098, No. 52/1102, No.
52/1111, No. 52/1129, No. 52/1114 and No. 52/1112 (Kaunas D.)" of
15 June 2001 (hereinafter referred to as Order No. 02-05-4555 of
15 June 2001) and by Order No. 02-05-3199 "On Approving the Land
Reform Land Survey Plan (Kaunas D.)" of 16 May 2003 (hereinafter
referred to as Order No. 02-05-3199 of 16 May 2003).
It needs to be mentioned that the List of the Agricultural
Enterprises and Organisations not Subject to Privatisation
approved by Resolution of the Government of the Republic of
Lithuania No. 540 "On the Approval of the List of the
Agricultural Enterprises and Organisations not Subject to
Privatisation" of 9 December 1991 (wording of 27 February 1992)
has been amended more than once (by Government Resolution "On the
Partial Amendment of Resolution of the Government of the Republic
of Lithuania No. 134 of 27 February 1992" of 2 June 1992,
Government Resolution "On the Partial Amendment of Resolution of
the Government of the Republic of Lithuania No. 134 of 27
February 1992" of 28 May 1993, Resolution "On Partial Amendment
of Resolution of the Government of the Republic of Lithuania No.
134 'On the Partial Amendment of Resolution of the Government of
the Republic of Lithuania No. 540 of 9 December 1991 and
Resolution No. 59 of 28 January 1992' of 27 February 1992" of 11
October 1995), however, the provision that the area of the
farming lands not subject to privatisation assigned to Lithuanian
Veterinary Academy is 800 hectares of the List of the
Agricultural Enterprises and Organisations not Subject to
Privatisation (wording of 27 February 1992) which was approved by
the said Government resolution, has not been amended.
5. On 14 May 1999, the Government adopted Resolution No. 579
"On Allocation of a Land Lot and on Amending the Targeted Purpose
of the Land Use" whereby it resolved: "to allot the state
agricultural 32.5 hectare land lot, which is in the village of
Vijūkai, the District of Kaunas, which is at present used by
Lithuanian Veterinary Academy according to the prepared plan of
the land lot, to the Weaponry Fund of the Republic of Lithuania
under the Government of the Republic of Lithuania <
> to use it
on a non-terminable basis for the construction of an ammunition
manufacture enterprise" (Item 1); "to permit that the main
targeted purpose of the land use of the land lot specified in
Item 1 of this Resolution be changed from the agricultural
purpose to a different purpose" (Item 2); "to commission the
Chief of the Kaunas County to prepare and conclude an agreement
of use with the Weaponry Fund regarding the transfer of the
aforesaid land lot for use gratis" (Item 3); "to permit that the
Chief of the Kaunas County write off the land reclamation
equipment subject to destruction the remainder value of which is
LTL 69,128" (Item 4).
Government resolution No. 579 of 14 May 1999, whereby a
state land lot was transferred to the Weaponry Fund for use by
changing the main targeted purpose of its use, was adopted by
following Articles 22, 23 and 31 of the Republic of Lithuania Law
on Land (wording of 26 June 1997), in which it was inter alia
established that: the state land shall be allocated to use it on
a non-terminable basis or on terminable basis to the enterprises
and organisations which receive financing from the budget without
concluding agreements on state land rent under the procedure
established by the Government (Paragraph 1 of Article 22); the
procedure of allocating the state land to the subjects
established by the Ministry of Defence shall be established by
laws and the Government (Paragraph 2 of Article 22); the right to
use the state land shall be allocated by the Government (Item 1
of Paragraph 1 of Article 23); the users of the land who wish to
use it for a different purpose than it was established when the
land was acquired or rented as well as allocated for use, must
receive the permission from the Government or the chief of a
county (Paragraph 1 of Article 31).
6. On 14 May 1999, the Government adopted Resolution No. 584
"On Partial Amendment of Resolution of the Government of the
Republic of Lithuania No. 540 'On the Approval of the List of the
Agricultural Enterprises and Organisations Not Subject to
Privatisation' of 9 December 1991" (hereinafter referred to as
Government resolution No. 584 of 14 May 1999) whereby the List of
the Agricultural Enterprises and Organisations not Subject to
Privatisation approved by Government Resolution No. 540 "On the
Approval of the List of the Agricultural Enterprises and
Organisations not Subject to Privatisation" of 9 December 1991
was amended: it amended the last section of the chapter titled
"Agricultural Scientific Institutes and Other Establishments Not
Subject to Privatisation" by enshrining in it that the area of
the farming lands not subject to privatisation assigned to
Lithuanian Veterinary Academy shall be 767.5 hectares, i.e. the
area of the farming lands not subject to privatisation which had
been established for the LVA was reduced from 800 hectares to
767.5 hectares.
This amendment of the List of the Agricultural Enterprises
and Organisations not Subject to Privatisationreducing the area
of the farming lands not subject to privatisation by 32.5
hectares (from 800 hectares to 767.5 hectares) was made because
of the fact that by the aforementioned Government resolution No.
579 of 14 May 1999 the land lot of 32.5 hectares was transferred
to the Weaponry Fund.
7. On 8 March 2001, the Government adopted Resolution No.
266 "On Partial Amendment of Resolution of the Government of the
Republic of Lithuania No. 1026 'On Users of the Land Allotted to
Scientific and Educational Establishments and Transferred to
State Specialised Seed-growing and Stock-breeding Farms, Special-
purpose Stock-breeding Companies, and on Establishing the Size of
Land Lots Used by These Users' of 13 August 1998", Item 1 whereof
amended Government Resolution No. 1026 "On Users of the Land
Allotted to Scientific and Educational Establishments and
Transferred to State Specialised Seed-growing and Stock-breeding
Farms, Special-purpose Stock-breeding Companies, and on
Establishing the Size of Land Lots Used by These Users" of 13
August 1998 and in the Chapter titled "Ministry of Education and
Science" of Annex 2 titled "Scientific and Educational
Establishments and State Specialised Seed-Growing and Stock-
Breeding Farms, and the Size of Land Lots Used by Them" of the
said item, it was inter alia established that the general amount
of the land lots of Lithuanian Veterinary Academy shall be 815
hectares, 767.5 hectares of which shall be farming lands, and
34.1 hectares of which shall be territories with buildings built
on them.
Item 2 of this Government resolution recognised Government
Resolution No. 540 "On the Approval of the List of the
Agricultural Enterprises and Organisations Not Subject to
Privatisation" of 9 December 1991, as well as the Government
resolutions which had amended the List of the Agricultural
Enterprises and Organisations Not Subject to Privatisation, inter
alia Government Resolution No. 584 "On Partial Amendment of
Resolution of the Government of the Republic of Lithuania No. 540
'On the Approval of the List of the Agricultural Enterprises and
Organisations Not Subject to Privatisation' of 9 December 1991"
of 14 May 1999, as no longer valid.
After the adoption and coming into force of Government
resolution No. 266 of 8 March 2001, the area of land lots not
subject to privatisation established for the LVA has not been
amended.
8. It needs to be noted that the disputed Government
resolution No. 266 of 8 March 2001, whereby the size of the area
of the used land lot for the LVA was established and inter alia
disputed Government resolution No. 540 of 9 December 1991
(wordings of 27 February 1992 and 14 May 1999) was recognised as
no longer valid, supplemented Government Resolution No. 1026 "On
Users of the Land Allotted to Scientific and Educational
Establishments and Transferred to State Specialised Seed-growing
and Stock-breeding Farms, Special-purpose Stock-breeding
Companies, and on Establishing the Size of Land Lots Used by
These Users" of 13 August 1998 (hereinafter also referred to as
Government Resolution No. 1026 of 13 August 1998). Government
Resolution No. 1026 of 13 August 1998 was adopted following the
Law on the Restoration of the Rights of Ownership of Citizens to
the Existing Real Property, namely the provision "the land shall
be bought out by the State from the citizens specified in Article
2 of this law and it shall be compensated for it pursuant to
Article 16 of this law if it <...> is allotted for use by
scientific and educational establishments, state establishments
of social guardianship and care, state establishments and
organisations, transferred to state seed-growing, stock-breeding
farms. The list of users of this land and the size of the plots
of land utilised by them shall be established by the Government"
of Item 9 (wording of 1 July 1997) of Article 12 thereof. This
Government resolution was designed to regulate the allocation of
the state land lots used by the agricultural schools and
agricultural scientific and educational institutions to the land
which is bough out by the state by establishing the list of
institutions and areas of land lots used by them.
Thus, the List of the Agricultural Enterprises and
Organisations not Subject to Privatisation approved by Government
resolution No. 540 of 9 December 1991 (wordings of 27 February
1992 and 14 May 1999) was named as the list of objects bought out
by the state in Government Resolution No. 1026 of 13 August 1998
(wording of 8 March 2001), therefore, the status of land bought
out by the state was directly enshrined also regarding the land
allocated for the LVA and used by it.
9. In the context of the constitutional justice case at
issue, it needs to be noted that, as it is obvious from the
material of the case, prior to the adoption of the discussed
Government resolutions, whereby the lot of the state land of a
corresponding size was assigned to it, the LVA had used the land
lot of a corresponding size since 1956. It also needs to be noted
that the plan of the limits of the land use of the educational-
experimental farm of Lithuanian Veterinary Academy of the Kaunas
District approved by Decision of the Executive Committee of the
Soviet of People's Deputies of the Kaunas District No. 143 of 26
May 1986, 3363 hectares of land was assigned to the LVA and this
land was used by it. As it is obvious from the material of the
case, inter alia from the explanations of the representatives of
the Government, the party concerned, presented at the
Constitutional Court hearing, the area of land of 3363 hectares
used by the LVA also included the area of 1000 hectares of the
farming lands which was allocated to the LVA later by Government
resolution No. 540 of 9 December 1991 and the already reduced
areas of the farming lands800 hectares and 767.5 hectares
accordinglywhich were assigned to the LVA by Resolution No. 266
of 8 March 2001.
10. While summing up the legal regulation enshrined in the
said Government resolutions which is disputed in this
constitutional justice case at issue, it needs to be noted that:
- by Government resolution No. 540 of 9 December 1991
(wordings of 27 February 1992 and 14 May 1999) and Government
resolution No. 266 of 8 March 2001, the area of the farming lands
of the corresponding size was allocated (assigned) to the LVA
which had the status of the state land (this is confirmed by the
legal regulation established in Government resolution No. 579 of
14 May 1999, inter alia Item 1 of this resolution in which it is
established that the state agricultural land lot which is at
present used by Lithuanian Veterinary Academy shall be allotted
to the Weaponry Fund to use it on a non-terminable basis);
- by Government resolution No. 540 of 9 December 1991
(wordings of 27 February 1992 and 14 May 1999) and by Government
resolution No. 266 of 8 March 2001, one only established the area
of the farming lands which are allocated (assigned) to the LVA,
while the specific limits of the land lot used by the LVA were
already defined by the said Order of the Chief of the Kaunas
County No. 05-5923 of 2 December 1996 and later amended by Order
of the Chief of the Kaunas County No. 05-8064 of 31 December
1998, Order No. 02-05-4060 of 30 May 2001, Order No. 02-05-4555
of 15 June 2001 and by Order No. 02-05-3199 of 16 May 2003;
- after the 32.5 hectare land lot (which was titled as one
having the status of the state land and which had been used by
the LVA until then) was transferred to the Weaponry Fund by
Government resolution No. 579 of 14 May 1999, the status of this
land as state-owned land did not change.
11. It needs to be noted that the processes of privatisation
of land and restoration of the rights of ownership to land are
inseparable from the land reform which, at the time of adoption
of the disputed Government resolutions, was regulated by the
Republic of Lithuania Law on Land Reform (wordings of 24 January
1992 and 2 July 1997). Article 2 of this law established the aims
of the land reform, inter alia to return the land which had been
unlawfully disseized.
11.1. At the time of the adoption of Government resolution
No. 134 of 27 February 1992, whereby Government resolution No.
540 of 9 December 1991 was amended, the Law on Land Reform of the
wording of 24 January 1992 was in effect. In Item 4 of Article 13
of this law it was provided for that "land which, according to
the established procedure, is allocated or is planned to be
allocated to institutions of science and learning for conducting
experiments and for other scientific needs" shall not be liable
to be sold to citizens for private ownership.
11.2. In Item 5 of Article 12 of the then effective Law "On
the Procedure and Conditions of the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property" (wording of
18 June 1991), it was established that the land which is
necessary for the necessities of the state and other land shall
be bought out (by applying the ways of buying out provided for in
this law), if it is allocated, under the established procedure,
for the educational and scientific institutions, for experiments
and other educational and scientific needs.
11.3. At the time of the adoption of Government resolution
No. 584 of 14 May 1999 whereby Government resolution No. 540 of 9
December 1991 was amended, Item 3 of Article 13 of the then
effective Law on Land Reform (wording of 2 July 1997) established
that the land shall not be subject to privatisation if it has
been "allocated to scientific and educational establishments,
state establishments of social guardianship and care, and
transferred to state specialised seed-growing and stock-breeding
farms".
11.4. Item 9 of Article 12 of the then effective Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (wording of 1 July 1997) established that
"the land shall be bought out by the state from the citizens
specified in Article 2 of this Law and it shall be compensated
according to Article 16 of this law if it is allotted to <...>
scientific and educational establishments, state establishments
of social guardianship and care, state establishments and
organisations, transferred to state specialised seed-growing and
stock-breeding farms. The list of users of this land and the size
of the plots of land utilised by them shall be established by the
Government".
11.5. Virtually analogous provision regarding the
attribution of land which has been transferred to scientific and
educational institutions to the land bought out by the state was
enshrined in Item 8 of Article 12 of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 13 May 1999) at the time of the adoption of
Government resolution No. 266 of 8 March 2001.
12. While summing up the legal regulation enshrined in the
Law on Privatisation of Property of Agricultural Enterprises, the
Law on Land Reform and the laws which regulate the relations of
restitution, it needs to be noted that by singling out two
categories of property of agricultural enterprises which is not
subject to privatisation in the Law on Privatisation of Property
of Agricultural Enterprises, the legislator sought to separate
property (which belonged to the specialised agricultural
enterprises) necessary for the necessities of the state which,
after transferring it to private property, would be impossible to
use for those needs properly (it is not possible to transfer this
property to private ownership) from the property to transfer
which to private ownership is not absolutely impossible, where
only the transactions of privatisation of this property seeking
to ensure the possibility to return this property to the former
owners, i.e. by giving the priority to restitution, and not to
privatisation, are not permitted.
It also needs to be noted that the land necessary for the
necessities of the state (inter alia the land allocated to
scientific and educational establishments) was attributed by laws
to the category of land which is not subject to transferring to
private property (Item 4 (wording of 25 July 1991) of Article 13
of the Law on Land Reform), not subject to privatisation (Item 3
(wording of 2 July 1997) of Article 13 of the Law on Land Reform)
and not subject to returning to former owners in kind (which is
bought out by the state) (Item 5 (wording of 18 June 1991) of
Paragraph 1 of Article 12 of the Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property", Item 9 (wording of 1
July 1997) of Article 12 and Item 8 (wording of 13 May 1999) of
Article 12 of the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property). In the
context of the constitutional justice case at issue, it also
needs to be noted that under Item 3 (wording of 2 July 1997) of
Article 13 of the Law on Land Reform and under Item 9 (wording of
1 July 1997) of Article 12 of the Law on the Restoration of the
Rights of Ownership of Citizens to the Existing Real Property,
also the land allocated to state establishments and organisations
is attributed to the category of land which is not privatised in
a corresponding manner and not allocated to its former owners in
kind (which is bought out by the state).
13. While construing the legal regulation which is enshrined
in Government resolutions and which is disputed in this
constitutional justice case in the context of the said laws, it
needs to be noted that inclusion of the land used by the LVA into
the List of the Agricultural Enterprises and Organisations not
Subject to Privatisation approved by Government resolution No.
540 of 9 December 1991, which is disputed in this constitutional
justice case, and its attribution to the objects bought out by
the state, which were established by Government Resolution No.
1026 "On Users of the Land Allotted to Scientific and Educational
Establishments and Transferred to State Specialised Seed-Growing
and Stock-Breeding Farms, Special-Purpose Stock-Breeding
Companies and on Establishing the Size of Land Lots Used by these
Users" of 13 August 1998 by disputed Government resolution No.
266 of 8 March 2001 means that the land which had been allocated
to Lithuanian Veterinary Academy as a scientific and educational
institution by the disputed Government resolution fell into the
category of real property which is not subject to privatisation
and which cannot be returned to its former owners in kind (which
is bought out by the state).
It also needs to be noted that the legal status of the 32.5
hectare land lot allocated to the Weaponry Fund under the
disputed Government resolution No. 579 of 14 May 1999 to use it
on a non-terminable basis (which at that time was used by the
LVA) did not change from the standpoint of the legal relations of
propertythis land remained state-owned land which is not subject
to privatisation and is not subject to returning it to its former
owners in kind, since it must be bought out by the state.
III
On the compliance of Government Resolution No. 540 "On the
Approval of the List of the Agricultural Enterprises and
Organisations not Subject to Privatisation" (wordings of 27
February 1992 and 14 May 1999) of 9 December 1991 and Government
Resolution No. 266 "On Partial Amendment of Government Resolution
No. 1026 'On Users of the Land Allotted to Scientific and
Educational Establishments and Transferred to State Specialised
Seed-Growing and Stock-Breeding Farms, Special-Purpose Stock-
Breeding Companies and on Establishing the Size of Land Lots Used
by These Users' of 13 August 1998" of 8 March 2001 with Article
23 of the Constitution, with the constitutional principle of a
state under the rule of law, and with the provisions of Article 1
of the Law "On the Procedure and Conditions of the Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property" (wording of 18 June 1991) and of the Preamble (wording
of 1 July 1997) to the Law on the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property.
1. In this constitutional justice case one investigates the
compliance of the provision of Government resolution No. 540 of 9
December 1991 that the area of the farming lands not subject to
privatisation assigned to Lithuanian Veterinary Academy is 800
hectares with Paragraph 1 of Article 23 of the Constitution, the
constitutional principle of a state under the rule of law, and
with the provision "the right of ownership to the existing real
property shall be restored: (1) by returning the disseized
property in kind or equivalent kind; (2) by paying single state
grants to the persons specified in Article 2 of this law enabling
them to take over a corresponding part of the state-owned
(society-owned) property which is being privatised if it is
impossible to return the disseized property in kind or in
equivalent kind <...>" of Article 1 (wording of 18 June 1991) of
the Law "On the Procedure and Conditions of the Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property", as well as the compliance of Government resolution No.
540 of 9 December 1991 (wording of 14 May 1999) and Government
resolution No. 266 of 8 March 2001, to the extent that they
assign land to Lithuanian Veterinary Academy, with Paragraphs 1
and 3 of Article 23 of the Constitution, with the constitutional
principle of a state under the rule of law, and with the
provision "the restoration of continuation of the rights of
ownership is based on the provision of the 18 June 1991 Law of
the Republic of Lithuania 'On the Procedure and Conditions of
Restoration of the Rights of Ownership to the Existing Real
Property'the existing real property shall be returned to
citizens of the Republic of Lithuania, and in the event it is
impossible to do so, they shall be compensated justly" of the
Preamble (wording of 1 July 1997) of the Law on the Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property.
2. Article 23 of the Constitution provides that property
shall be inviolable (Paragraph 1); the rights of ownership shall
be protected by laws (paragraph 2); property may be taken over
only for the needs of society according to the procedure
established by law and shall be justly compensated for (Paragraph
3).
3. While construing Article 23 of the Constitution, the
Constitutional Court has held that inviolability and protection
of property which are enshrined in this article inter alia means
that the owner has the right to perform any actions in regard of
his property, save those prohibited by the law, as well as to use
his property and determine its future in any way, which does not
violate the rights and freedoms of other persons (Constitutional
Court ruling of 14 March 2006); in addition, in its acts the
Constitutional Court has held the following more than once: the
owner has the right to require that other persons would not
violate his rights of ownership, while the state has the duty to
defend and protect the property from illegal encroachment upon
it; the constitutional guarantee of protection of ownership
entrenched in the Constitution is a status quo guarantee, as
first of all it protects the rights of ownership enjoyed by a
person; the Constitution, while guaranteeing the protection of
ownership, establishes the constitutional right to acquisition of
property too, and guarantees protection of this right; the
inviolability of property and protection of subjective rights of
ownership which are entrenched in the Constitution cannot be
interpreted as grounds for opposing the right and interests of
the owner to the public interest, as well as the rights, freedoms
and legitimate interests of other persons; ownership includes
obligations, and by this provision the social function of
ownership is expressed.
4. Under Article 23 of the Constitution, property may be
taken over from the owner only for the needs of society when it
is justly compensated for; the property may be taken over for the
needs of society and when it is justly compensated for only under
procedure established by the law. As the Constitutional Court has
held, Paragraph 3 of Article 23 of the Constitution indicates the
needs of society, for which property may be seized according to
the procedure established by law and must be adequately
compensated for. The said needs are interests of either the whole
or part of society. The state, while implementing its functions,
is constitutionally obligated to secure and satisfy such
interests. When property is seized for the needs of society, one
must strive for the balance between various legitimate interests
of society and its members. The needs of society, for which
property is seized, are always particular and clearly expressed
needs of society for a concrete object of property. It is
permitted to seize property (by adequately compensating for) only
for such public needs which would not be objectively met if a
certain concrete object of property were not seized. The person
whose property is being seized for the needs of society has the
right to demand that the established compensation be equivalent
in value for the property seized (Constitutional Court rulings of
2 April 2001 and 4 March 2003). While adopting a decision on
seizure of property for the needs of society, at the same time
one must establish the amount of compensation for the property
seized, also, one must establish a procedure according to which
the owner will be compensated for the property seized. The
legislator, irrespective of the fact what subject (the state,
municipality, legal or natural person) becomes the owner of this
property, has a duty to establish the legal regulation ensuring
that the said property be used for the needs of society in
reality (Constitutional Court ruling of 4 March 2003). In this
context, it needs to be emphasised that the needs of society are
state necessities at the same time (Constitutional Court rulings
of 4 March 2003 and 23 November 2007); one is to note that it is
not permitted to oppose the notion "state necessities" against
the notion "needs of society" because they not deny, but
supplement each other; the notions "needs (necessities) of
society", "needs (necessities) of the state", "needs
(necessities) of a municipality" denote the public interest and
are to be related with the constitutional concept of the welfare
of the Nation (Constitutional Court ruling of 23 November 2007).
5. While construing Paragraph 3 of Article 23 of the
Constitution, the Constitutional Court has also held in its acts
more than once that until the agreement is reached on the
compensation for the property seized or until the dispute is not
settled by court, the property may not be seized from the owner
(Constitutional Court ruling of 4 March 2003). While construing
the said provision of the constitutional doctrine together with
other doctrinal provisions of the Constitutional Court which were
formulated when interpreting Article 23 of the Constitution
(inter alia with the following: ownership includes obligations
and this provision expresses a social function of ownership; when
property is seized for the needs of society, one must strive for
the balance between various legitimate interests of society and
its members; it is permitted to seize property (by adequately
compensating for) only for such public needs which would not be
objectively met if a certain concrete object of property were not
seized; the person whose property is being seized for the needs
of society has the right to demand that the established
compensation be equivalent in value for the property seized; the
rights and interests of the owner may not be opposed against the
public interest), it needs to be noted that when the legislator
regulates the relations linked to consideration of disputes
regarding seizure of property for the needs of society in court,
then, according to the Constitution, a duty arises to establish
such legal regulation which would allow to decide these disputes
expeditiously and thus to guarantee the public interest, to
ensure that the owner would not abuse his right to receive a fair
compensation for the seized property and would not procrastinate
the procedure of seizure of property for the needs of society in
this manner.
Under the Constitution no such situations may be tolerated,
where an institution, which is established by a law and which has
the right to adopt a decision on seizure of property for the
needs of society, after such institution adopts a decision on
seizure of property for the needs of society and on the size of
compensation for the property seized from the owner, and upon the
payment of such compensation, such need of society cannot be
satisfied for an unreasonably long time due to longstanding
disputes, inter alia due to disputes in courts regarding the size
of compensation for the seized property from its owner, and due
to this, the interests of vital importance and other particularly
importance interests of society cannot be ensured. A duty stems
from the Constitution for the legislator to establish inter alia
the grounds and ways of fair compensation for the seized property
for the needs of society and to establish that upon the decision
of a competent institution regarding seizure of property for the
needs of society, size of compensation for the property seized
from the owner and upon payment of this compensation, the court,
after it has established that without immediately satisfying this
need of society one would impair the interests of vital
importance and other particularly important interests of society,
may allow to start using the property in order to satisfy the
needs of society before it has been essentially decided regarding
the size of compensation for the seized property.
6. The Constitutional Court has also held that while
deciding whether property is seized for the needs of society, one
is to take account of the fact that needs of society are not a
static phenomenon. The needs that at a certain stage of
development of society and the state were regarded as needs of
society may be considered to be not in line with the
constitutional concept of the needs of society at a different
stage of development of society and the state, and vice versa.
While taking account of the fact as to what socially important
objectives are sought at the moment of seizure of particular
property, one has to decide each time on an individual basis
whether the needs for which property is seized are those of
society (Constitutional Court ruling of 4 March 2003).
7. While interpreting the content of Article 23 of the
Constitution in the context of the restoration of the rights of
ownership to the existing real property, the Constitutional Court
has held in its rulings more than once that although the
legislator enjoys certain discretion to establish the conditions
and procedure of restoration of the right of ownership, however,
when doing so, he must take account of the constitutional
principles of protection of the right of ownership; it 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; while deciding whether the compensation for the
existing real property which has not been returned in kind is a
just one, one has to take account of the fact that it was not the
State of Lithuania that unlawfully nationalised or disseized in
other unlawful ways the property of the owners; until his
property is restored or he is paid an appropriate compensation
for it, the subjective rights of the former owner to a specific
property are not restored yet; the legal meaning of the decision
of the institution authorised by the state to restore property in
kind or compensate for it is that only from this proper moment
the former owner acquires the rights of ownership to such
property (Constitutional Court rulings of 27 May 1994 and 4 March
2003); until respective state institutions have not adopted a
decision on the restoration of the rights of ownership, in
reality such persons do not enjoy the subjective rights to the
property which earlier belonged to them (Constitutional Court
rulings of 18 June 1998 and 4 March 2003).
It also needs to be noted 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
(Constitutional Court rulings of 4 March 2003 and 5 July 2007).
The balance between the interests of the persons whose rights are
being restored and those of the entire society could not be
reached if the right of a person, who seeks to restore his rights
of ownership to the existing real property, to return it in kind
were made absolute by at the same time denying the interests of
society.
8. In the context of the constitutional justice case at
issue, it needs to be emphasised that as the Constitutional Court
has held in its acts more than once, if there is no possibility
to return the existing real property in kind, a just compensation
also ensures restoration of the rights of ownership. Thus, the
legislator 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 allocating
a plot of land, forest, or water body of equal value in another
locality, i.e. by allocating property, which has never belonged
to that person by right of ownership (Constitutional Court ruling
of 5 July 2007).
9. One is not allowed to return also such property in kind,
which belonged to a person under the right of ownership before
unlawful nationalisation or other unlawful seizure, but which is
necessary for the needs of society. As the Constitutional Court
held in its ruling of 10 May 2002, the land which is not returned
to the owners in kind due to its necessity for the needs of
society is bought out by the state, while the owners are
compensated under the manner and procedure specified in the law.
In this context, it needs to be emphasised that even though
the institute of seizure of property from its owners for the
needs of society may not be applied directly, when the rights of
ownership are restored by buying out the real property (inter
alia land) which is necessary for the necessities of the state,
the notions of the needs of society (in the aspect of seizure of
the property from the owners) and the state necessities (in the
aspect of buying up of property while restoring the rights of
ownership) are not totally different. As the Constitutional Court
has held, it is not permitted to oppose the notion "state
necessities" employed in the said Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property" against the notion "needs
of society" employed in the Constitution (Constitutional Court
ruling of 4 March 2003).
It also needs to be noted that 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, is much broader than the content of the notion
"needs of society" employed in Paragraph 3 of Article 23 of the
Constitution (Constitutional Court ruling of 5 July 2007).
10. In the context of the constitutional justice case at
issue, it is to be particularly emphasised that while formulating
the official constitutional doctrine of restitutionrestoration
of the rights of ownership of citizens to the existing real
propertythe Constitutional Court has noted the following: one of
the situations established in laws when land is not to be
returned in kind to the former owners is when it has been
allotted to scientific and educational establishments; without
real property (land, buildings etc.) these establishments would
not be able to perform their functions which are important to
society; the status of land subject to being bought out by the
state may be allocated only to the land allotted to scientific
and educational establishments which is necessary for performing
their tasks and functions, i.e. which is necessary for the needs
of society but not of individual persons; the scientific and
educational establishments, state and local government
institutions as well as officials have a duty to ensure that the
land allotted to a scientific and educational establishment be
used for carrying out the tasks and functions of the said
establishment only, i.e. for satisfaction of the needs of society
(Constitutional Court ruling of 10 May 2002).
Under the Constitution, inter alia Paragraph 4 of Article 40
of the Constitution, the state has the duty to supervise the
activities of establishments of teaching and education, and it
also has the duty to supervise whether the land which belongs to
the state and which was transferred to scientific and educational
establishments is possessed and used following the public
interest and the needs of society. It also needs to be noted that
the scientific and educational establishments must secure that
such land allocated to them would be used only for carrying out
their tasks and functions and that it would be administered and
preserved rationally.
11. Therefore, under the Constitution, inter alia the
constitutional principles of a state under the rule of law and
responsible governance enshrined in it, the state institutions
which are empowered to decide the questions of granting the
status of the land bought out by the state to the land which is
allotted to scientific and educational establishments, must take
account of the fact whether the concrete land is necessary for
carrying out the tasks and functions of the scientific and
educational establishment and whether in case of returning that
land to its former owner in kind, the corresponding scientific
and educational establishment would really not be able to perform
its functions which are important to society.
12. As it has been mentioned, the needs of society, due to
which the existing real property (also land) is not returned to
its former owner in kind, are not a static phenomenon. In the
context of the constitutional justice case at issue, it needs to
be noted that the necessities which are understood as the need of
society due to which the existing real property may not be
returned to its former owner in kind, but is bought out by the
state, are subject to change. Thus, some necessities may be
replaced by others: if there is one necessity, which is
understood as a need of society, there may appear another
necessity which is of no less importance (significance) to
society, which is also understood as a need of society due to
which the existing real property may not be returned to its
former owner in kind. The mere fact that some necessities,
understood as a social need due to which the existing real
property may not be returned to its former owner in kind, but is
bought out by the state, disappeared, in itself does not mean
that other necessities have not appeared which may also be
understood as a need of society, which also implies the
impossibility to return the existing real property to its former
owner in kind. Also such situations are possible, when a need of
society due to which the existing real property could not be
returned to its former owner in kind, disappears during a certain
period of time. In such a case, under the Constitution, inter
alia the principles of a state under the rule of law and of
justice enshrined in it, if the rights of ownership to the
existing real property were not restored to its former owner in a
different way and there are not any constitutionally grounded
obstacles, the existing real property must be returned to this
owner (after he has expressed his wish) in kind, and if the
rights of ownership to the existing real property were restored
to its former owner in a different way, then, after having
adopted a decision regarding the intention to transfer such
existing real property to which the rights of ownership were not
restored, because it had been bought out by the state, to private
ownership, the state institutions must properly inform the former
owner about this decision so that he would have the possibility
to acquire this real property according to the procedure
established by laws on the same grounds as other persons.
13. While regulating the relations linked to restoration of
the rights of ownership to the existing real property, the
subjects of law-making must take account not only of the
constitutional principles of protection of propertythey are
bound by the imperative of protection of legitimate expectations,
as an element of a state under the rule of law, which stems from
the Constitution.
14. In the acts of the Constitutional Court it has been held
more than once that one of the elements of the principle of
legitimate expectations is the protection of rights which were
acquired under the Constitution as well as laws and other legal
acts which are not in conflict with the Constitution; according
to the Constitution, only those expectations of the person in
relationships with the state are protected and defended, which
arise from the Constitution itself or from the laws and other
legal acts that are not in conflict with the Constitution; only
these expectations of the person in relationships with the state
are considered legitimate. It has also been held 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 (Constitutional
Court rulings of 13 December 2004 and 5 July 2007).
15. It needs to be emphasised that the fact that the state
decided that the denied rights of ownership must be restored,
also the fact that a law regulating restitution relations was
adopted and the implementation of the restoration of ownership
rights was begun, created a legitimate expectation to the persons
who had the right to restore their rights of ownership that they
would be able to implement such their right by the ways, under
conditions and procedure and within the terms established by the
law. The said legitimate expectation is protected and defended by
the Constitution. Alongside, a duty appeared to the state to
legislatively regulate the restoration of the rights of ownership
to the existing real property so that the said expectation could
be implemented in reality (Constitutional Court ruling of 23
August 2005).
In the context of the constitutional justice case at issue,
it needs to be noted that the legitimate expectation of the owner
to restore the rights of ownership to the existing real property
does not mean that in all cases the rights of ownership to the
existing real property must be restored by returning such
property in kind. In addition, such legal situations are also
possible, where the existing real property which is necessary for
the needs of society is not returned in kind.
16. It also needs to be noted that the constitutional
requirements of legal certainty, legal security and protection of
legitimate expectations imply that the procedure of restitution
restoration of the rights of ownership to the existing real
propertymay not be unreasonably long, since this could distort
the institute of restoration of the rights of ownership to the
existing real property itself and shatter the trust of people in
the state and law.
17. It has been mentioned that the Kaunas Regional Court,
the petitioner, disputes the compliance of the provisions of
Government resolution No. 540 of 9 December 1992 (wording of 27
February 1992) with the provision "the right of ownership to the
existing real property shall be restored: (1) by returning the
disseized property in kind or equivalent kind; (2) by paying
single state grants to the persons specified in Article 2 of this
law enabling them to take over a corresponding part of the state-
owned (society-owned) property which is being privatised if it is
impossible to return the disseized property in kind or in
equivalent kind <...>" of Article 1 of the Law "On the Procedure
and Conditions of Restoration of the Rights of Ownership to the
Existing Real Property" (wording of 18 June 1991), also the
compliance of the provisions of Government resolution No. 540 of
9 December 1991 (wording of 14 May 1999) and Resolution No. 266
of 8 March 2001 with the provision "the restoration of
continuation of the rights of ownership is based on the provision
of the 18 June 1991 Law of the Republic of Lithuania 'On the
Procedure and Conditions of Restoration of the Rights of
Ownership to the Existing Real Property'the existing real
property shall be returned to citizens of the Republic of
Lithuania, and in the event it is impossible to do so, they shall
be compensated justly" of the Preamble (wording of 1 July 1997)
to the Law on the Restoration of the Rights of Ownership of
Citizens to the Existing Real Property.
18. Article 1 (wording of 18 June 1991) of the Law "On the
Procedure and Conditions of Restoration of the Rights of
Ownership to the Existing Real Property" established: this law
shall legislate the procedures and conditions of the right of
ownership to the citizens of the Republic of Lithuania to the
property which was nationalised under the laws of the USSR (the
Lithuanian SSR), or which was otherwise unlawfully socialised,
and which, on the day of enactment of this law, is considered the
property of the state, of the public, of co-operative
organisations (enterprises), or of collective farms (Paragraph
1); the rights of ownership to the existing real property shall
be restored by returning the seized property in kind or
equivalent kind (Item 1 of Paragraph 2) or by paying single state
grants to the persons specified in Article 2 of this law enabling
them to take over a corresponding part of the state-owned
(society-owned) property which is being privatised if it is
impossible to return the disseized property in kind or in
equivalent kind or if the persons specified in Article 2 of this
law do not wish the property to be returned in kind (Paragraph 2
of Article 2).
19. In the Preamble (wording of 1 July 1997) to the Law on
the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, it is established: "The Seimas of the
Republic of Lithuania, emphasising that after the Supreme
Council-Reconstituent Seimas of the Republic of Lithuania
restored the independence of the Republic of Lithuania under the
11 March 1990 Acts, the laws, imposed by the foreign state, by
which the occupation government had seized from the citizens of
the Republic of Lithuania the property possessed by them, ceased
to be in force; emphasising that the rights of ownership acquired
by the citizens of the Republic of Lithuania before the
occupation are not revoked and have continuity; emphasising that
the Constitution of the Republic of Lithuania adopted by the will
of citizens of the Republic of Lithuania in 1992, guarantees and
defends the rights and property of the State and its citizens;
emphasising 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
Propertythe 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; taking into
consideration the judgments and rulings of the Constitutional
Court of the Republic of Lithuania of 1994-1996 and the limit of
150 hectares set by the land reform in 1922-1940, passes this
Law".
20. While construing the provisions of Article 1 (wording of
18 June 1991) of the Law "On the Procedure and Conditions of
Restoration of the Rights of Ownership to the Existing Real
Property" and of the Preamble (wording of 1 July 1997) to the Law
on the Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, in whose respect the compliance of
Government Resolution No. 540 (wordings of 27 February 1992 and
14 May 1999) of 9 December 1991 and Resolution No. 266 of 8 March
2001 is disputed, in the context of the regulation of these laws,
inter alia Articles 12 thereof which provided for the grounds on
the basis of which the land is not returned in kind to its owner,
but it is bought out by the state, it is inter alia to be noted
that even though the said provisions enshrined the priority to
return the real property (also land) in kind, it is not (was not)
the only way of restoration of the rights of ownership to the
existing real property. The said laws established (and establish)
that if it is impossible to return the real property (also land)
to its owners in kind, the right of ownership shall be restored
in other ways provided for by the law. Therefore, the legislator,
while regulating the restoration of the rights of ownership to
the existing real property, singled out the persons to whom the
rights of ownership to the existing real property shall be
restored by returning the property in kind and the persons to
whom the rights of ownership to the existing real property shall
be restored in other ways. As the Constitutional Court has held,
the differentiation of the said groups of persons were and are
determined by objective circumstances, i.e. the impossibility to
return the existing real property in kind in every case
(Constitutional Court ruling of 23 August 2005), while in the
event when, due to the factual present land-tenure relations and
public needs, it is impossible to return the land in kind, the
former owner is guaranteed the right to choose the manner of
restoration of the right of ownership under the procedure and
conditions prescribed by the law (Constitutional Court rulings of
27 May 1994 and 10 May 2002).
21. In the acts of the Constitutional Court, it has also
been held more than once that the laws regulating restoration of
the rights of ownership to the existing real property may
establish that objects of property are not returned in kind to
the persons who have the right to the restoration of the rights
of ownership, but are bought out by the state; the provision of
the laws 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.
In the context of the constitutional justice case at issue,
it needs to be noted that the laws regulating restoration of the
rights of ownership to the existing real property included (and
now include) the provision whereby the land allocated to
scientific and educational establishments is bought out by the
state.
22. As it has been mentioned, in this constitutional justice
case, one inter alia disputes the provisions of Government
resolution No. 540 (wordings of 27 February 1992 and 14 May 1999)
of 9 December 1991 and resolution No. 266 of 8 March 2001 in the
aspect of the compliance of these provisions with the
Constitution and laws. According to these provisions, the area of
farming lands of the corresponding size not subject to
privatisation was assigned to Lithuanian Veterinary Academy by
enshrining at the same time the status of land bought out by the
state with regard to this land. It has also been mentioned that
without possessing the real property (land, buildings etc.), the
scientific and educational establishments would not be able to
fulfil their socially important functions, as well as that the
status of the land bought out by the state may be attributed only
to the land allotted to scientific and educational establishments
which is necessary for performing their tasks and functions, i.e.
which is necessary for the needs of society, and only if such
needs of society could not be satisfied after this land has been
returned in kind. Therefore, while deciding whether the disputed
resolutions of the Government are not (were not) in conflict with
the Constitution and laws, one must also assess the fact whether
a certain land lot is necessary for implementation of the
functions and tasks assigned to the LVA by the legal acts.
22.1. As it is obvious from the material of the case, the
LVA is the only special scientific and educational institution
that prepares veterinary specialists and stock-breeding
technologists who provide services to the stock-breeding sector,
protect animals from contagious and other dangerous diseases
spreading into this country from other states, control the
quality of food of animal origin, perform the functions of
breeding, feedstuff quality and other functions which are
important to society and the state which are linked to the
development of agriculture, growth of economy and protection of
public health. Therefore, it is important for society and the
state that the specialists of this field be properly prepared.
22.2. The Statute of Lithuanian Veterinary Academy which was
approved by Resolution of the Seimas of the Republic of Lithuania
No. I-281 "Regarding the Statute of Lithuanian Veterinary
Academy" of 19 October 1993 (which became null and void by
Resolution of the Seimas No. VIII-2044 "On Approving the Statute
of Lithuanian Veterinary Academy" of 12 October 2000) established
that Lithuanian Veterinary Academy is a state higher scientific
and educational establishment, founded in 1936, which prepares
specialists of veterinary and stock-breeding (Items 1 and 2).
Under Item 22 of this statute, the main base of practical
training and scientific experiments is the Practical Instruction
and Research Centre.
22.3. In Items 8.1 and 8.2 of the Statute of Lithuanian
Veterinary Academy which was approved by Resolution of the Seimas
No. VIII-2044 "On Approving the Statute of Lithuanian Veterinary
Academy" of 12 October 2000 (which became null and void by
Resolution of the Seimas No. IX-2265 "On Approving the Statute of
Lithuanian Veterinary Academy" of 8 June 2004), among other
things, one specifies such purposes and areas of activity of this
academy: to carry out scientific research and to apply the
results of scientific research in the area of biomedicine
science, to create conditions for a person to acquire the higher
education, qualification and scientific degree, which are based
on scientific research and which correspond to the level of
culture, science and latest technologies.
22.4. Item 3 of the Statute of Lithuanian Veterinary Academy
which was approved by Resolution of the Seimas No. IX-2265 "On
Approving the Statute of Lithuanian Veterinary Academy" of 8 June
2004 (and which is still effective) established that the academy
is a state-owned establishment of studies and science for stock-
breeding and veterinary science, in which university studies
prevail. In addition to other purposes and tasks enumerated in
the Statute of Lithuanian Veterinary Academy, one specifies
preparation of specialists of veterinary, stock-breeding and food
safety and implementation of fundamental and applied scientific
research and experimental development (Items 1 and 4).
22.5. In Lithuanian Veterinary Academy the works of
practical training and the works of scientific research are done
at the Practical Instruction and Research Centre which uses the
land lot transferred to Lithuanian Veterinary Academy in which
there are not only the farming lands but also the buildings
necessary for the scientific research.
22.6. The status of this scientific and educational
establishment defined in the statute of the LVA of the specified
wordings, the purposes and tasks enumerated therein makes one
draw a conclusion that the corresponding base (land, buildings,
equipment) is necessary for the practical training and
implementation of scientific research and experiments.
22.7. It needs to be noted that, as it has been mentioned,
the LVA used the land lot and created the training base in it yet
before the adoption of Government resolution No. 540 of 9
December 1991. It is obvious from the material of the case that
under the plan of the limits of the land use of the educational-
experimental farm of Lithuanian Veterinary Academy of the Kaunas
District approved by Decision of the Executive Committee of the
Soviet of People's Deputies of the Kaunas District No. 143 of 26
May 1986, 3363 hectares of land were assigned to the LVA and used
by it. The area of the farming lands which had been used by
Lithuanian Veterinary Academy before the beginning of the land
reform, taking account of the need of this academy and the
changed economic situation and the on-going land reform, was, by
Government Resolution No. 540 (wording of 9 December 1991) of 9
December 1991, reduced to 1000 hectares, while Government
resolution No. 134 of 27 February 1992 and Resolution No. 584 of
14 May 1999 specified the area of the farming lands again and it
was reduced correspondingly to 800 hectares and 767.5 hectares.
23. Taking account of the circumstances which have been set
forth, one is to draw a conclusion that by the Government
resolutions which are disputed in this constitutional justice
case, the land was allocated (assigned) to Lithuanian Veterinary
Academy so that it could properly perform the tasks and functions
of this establishment, i.e. satisfy the needs of society. Without
possessing this land, the LVA would not be able to implement its
functions which are important to society. It also needs to be
noted that there are not enough legal arguments why the size of
the farming lands' lot allocated (assigned) to the LVA by the
said Government resolutions (as it has been mentioned, under
Government Resolution No. 540 (wording of 9 December 1991) of 9
December 1991, it was 800 hectares, under Government Resolution
No. 540 (wording of 14 May 1999 of 9 December 1991, it was 767.5
hectares) does not meet the need of the LVA, i.e. is not
necessary for carrying out of the tasks and functions of the LVA,
therefore, it should be different.
24. As it has already been mentioned in this Constitutional
Court ruling, the Government resolutions which are disputed in
this constitutional justice case established only the area of the
farming lands assigned to Lithuanian Veterinary Academy, however,
they did not establish (determine) its limits.
It needs to be noted that the legal regulation when one
establishes the area of the farming lands' lot and does not
establish the limits of that lot lacks legal certainty and, from
the legal point of view, it is deficient.
However, it needs also to be noted that disputed Government
resolution No. 540 of 9 December 1991 (wording of 27 February
1992), whereby the area of the farming lands transferred to the
LVA was established (which, as it has been mentioned, was not
significantly amended by the subsequent disputed Government
resolutions), was adopted at the beginning of the process of the
land reform. In addition, the limits of the lot were determined
not by the said Government resolution whereby the land was
allocated (assigned) to the LVA, but this has been done by Order
of the Chief of the Kaunas County No. 05-5923 of 2 December 1996.
Later on, upon adoption of other disputed Government resolutions
whereby the area of the farming lands assigned to the LVA was
specified, also the limits of the land lot used by the LVA were
correspondingly specified by Order of the Chief of the Kaunas
County No. 05-8064 of 31 December 1998, Order No. 02-05-4060 of
30 May 2001, Order No. 02-05-4555 of 15 June 2001, and Order No.
02-05-3199 of 16 May 2003. Thus, taking account of the said
circumstances, the mere fact that Government Resolution No. 540
(wordings of 27 February 1992 and 14 May 1999) of 9 May 1991 and
Government resolution No. 266 of 8 March 2001 did not determine
the limits of the farming lands' lot assigned to the LVA is not a
sufficient ground in this constitutional justice case to
recognise the said Government resolutions as being in conflict
with the Constitution.
25. It also needs to be mentioned that the petitioner
grounds his doubts regarding the compliance of the disputed
Government resolutions with the Constitution and laws also on the
fact that, according to him, the land bought out by the state
which is allocated (assigned) to Lithuanian Veterinary Academy by
these Government resolutions also includes the land the rights of
ownership of which the heirs of the former owner seek to restore
in kind.
As it has been mentioned, the limits of the farming lands'
lot allocated (assigned) to the LVA were established not by the
disputed Government resolutions, but by orders of the chief
(governor) of the county.
In this context, it needs to be noted that, under Paragraph
1 of Article 102 and under Paragraphs 1 and 2 of Article 105 of
the Constitution, the Constitutional Court shall decide whether
the laws and other acts of the Seimas are not in conflict with
the Constitution and whether the acts of the President of the
Republic and the Government are not in conflict with the
Constitution or laws. The assessment of lawfulness and legitimacy
of legal acts adopted by the chief (governor) of a county is not
attributed to the competence of the Constitutional Court. It
belongs to the jurisdiction of courts which decide corresponding
administrative and civil disputes.
26. Taking account of the arguments set forth, one is to
draw a conclusion that:
- the provision of the List of the Agricultural Enterprises
and Organisations not Subject to Privatisation approved by
Government Resolution No. 540 "On the Approval of the List of the
Agricultural Enterprises and Organisations not Subject to
Privatisation" of 9 December 1991 (wording of 27 February 1992)
that the farming lands not subject to privatisation assigned to
Lithuanian Veterinary Academy is 800 hectares was not in conflict
with Paragraph 1 of Article 23 of the Constitution, with the
constitutional principle of a state under the rule of law and
with the provision "the right of ownership to the existing real
property shall be restored: (1) by returning the disseized
property in kind or equivalent kind; (2) by paying single state
grants to the persons specified in Article 2 of this law enabling
them to take over a corresponding part of the state-owned
(society-owned) property which is being privatised if it is
impossible to return the disseized property in kind or in
equivalent kind <...>" of Article 1 (wording of 18 June 1991) of
the Law "On the Procedure and Conditions of the Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property";
- the List of the Agricultural Enterprises and Organisations
Not Subject to Privatisation approved by Government Resolution
No. 540 "On the Approval of the List of the Agricultural
Enterprises and Organisations Not Subject to Privatisation" of 9
December 1991 (wording of 14 May 1999), to the extent that it
assigned the land to Lithuanian Veterinary Academy was not in
conflict with Paragraphs 1 and 3 of Article 23 of the
Constitution, with the constitutional principle of a state under
the rule of law, with the provision "the restoration of
continuation of the rights of ownership is based on the provision
of the 18 June 1991 Law of the Republic of Lithuania 'On the
Procedure and Conditions of Restoration of the Rights of
Ownership to the Existing Real Property'the existing real
property shall be returned to citizens of the Republic of
Lithuania, and in the event it is impossible to do so, they shall
be compensated justly" of the Preamble (wording of 1 July 1997)
of the Law on Restoration of the Rights of Ownership of Citizens
to the Existing Real Property;
- Government Resolution No. 266 "On Partial Amendment of
Resolution of the Government of the Republic of Lithuania No.
1026 'On Users of the Land Allotted to Scientific and Educational
Establishments and Transferred to State Specialised Seed-growing
and Stock-breeding Farms, Special-purpose Stock-breeding
Companies, and on Establishing the Size of Land Lots Used by
These Users' of 13 August 1998" of 8 March 2001 to the extent
that it has assigned the land to Lithuanian Veterinary Academy is
not in conflict with Paragraphs 1 and 3 of Article 23 of the
Constitution, with the constitutional principle of a state under
the rule of law and with the provision "the restoration of
continuation of the rights of ownership is based on the provision
of the 18 June 1991 Law of the Republic of Lithuania 'On the
Procedure and Conditions of Restoration of the Rights of
Ownership to the Existing Real Property'the existing real
property shall be returned to citizens of the Republic of
Lithuania, and in the event it is impossible to do so, they shall
be compensated justly" of the Preamble (wording of 1 July 1997)
of the Law on Restoration of the Rights of Ownership of Citizens
to the Existing Real Property.
IV
On the compliance of Government Resolution No. 579 "On
Allocation of a Land Lot and on Amending the Targeted Purpose of
the Land Use" of 14 May 1999 with Paragraphs 1 and 3 of Article
23 of the Constitution, with the constitutional principle of a
state under the rule of law and with the provision of the
Preamble (wording of 1 July 1997) of the Law on Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property.
1. In the constitutional justice case at issue one
investigates the compliance of Government Resolution No. 579 "On
Allocation of a Land Lot and on Amending the Targeted Purpose of
the Land Use" of 14 May 1999 to the extent that it has assigned
the land to the Weaponry Fund with Paragraphs 1 and 3 of Article
23 of the Constitution, with the constitutional principle of a
state under the rule of law and with the provision "the
restoration of continuation of the rights of ownership is based
on the provision of the 18 June 1991 Law of the Republic of
Lithuania 'On the Procedure and Conditions of Restoration of the
Rights of Ownership to the Existing Real Property'the existing
real property shall be returned to citizens of the Republic of
Lithuania, and in the event it is impossible to do so, they shall
be compensated justly" of the Preamble (wording of 1 July 1997)
of the Law on Restoration of the Rights of Ownership of Citizens
to the Existing Real Property.
2. It has been mentioned that by Government resolution No.
579 of 14 May 1999 inter alia a part of the land lot (32.5
hectares) used by Lithuanian Veterinary Academy was transferred
to the Weaponry Fund to use it on a non-terminable basis for the
construction of an ammunition manufacture enterprise.
3. In this Constitutional Court ruling, while investigating
the compliance of the Government resolutions whereby land was
transferred to the scientific and educational establishment,
Lithuanian Veterinary Academy, at the same time attributing it to
the category of land which is bought out by the state and not
returned to its former owners, with the provisions of Article 23
of the Constitution and of the laws which regulate restoration of
the rights of ownership, it has already been held that the legal
regulation which establishes the alternatives of restoration of
the rights of ownership in kind is not in conflict with the
purposes of restitution and with the constitutional principle of
protection of the rights of ownership. It also needs to be noted
that grounded and legitimate buying-up of the objects of
ownership while restoring the rights of ownership also meets the
constitutional requirement of protection of legitimate
expectations.
4. It has also been mentioned that it is also permissible
that such land which is necessary for the needs of society is not
returned to the formed owner in kind; that the needs of society
are always particular and clearly expressed needs of society for
a concrete object of property; and that the land which is not
returned to the owner in kind due to the necessity of the land
for the needs of society is bought out by the state, and the
owner is compensated in the manner and procedure specified in the
law.
5. Therefore, while investigating the compliance of the
disputed Government resolution, whereby the land was transferred
to the Weaponry Fund for use with the Constitution and with the
provision of the Preamble of the Law on Restoration of the Rights
of Ownership of Citizens to the Existing Real Property, first of
all, it is necessary to assess whether this land is to be
attributed to the category of land bought out by the state which
is established in this law.
6. As it has been mentioned, Item 9 of Article 12 of the Law
on Restoration of the Rights of Ownership of Citizens to the
Existing Real Property, which was effective at the time of the
adoption of Government resolution No. 579 of 14 May 1999,
established that "the land shall be bought out by the State from
the citizens specified in Article 2 of this law and it shall be
compensated for it pursuant to Article 16 of this law if it <...>
is allotted for use by scientific and educational institutions,
state establishments of social guardianship and care, state
establishments and organisations, transferred to state seed-
growing, stock-breeding farms. The list of users of this land and
the size of the plots of land utilised by them shall be
established by the Government."
Under this provision of the Law on Restoration of the Rights
of Ownership of Citizens to the Existing Real Property, inter
alia the land allocated to the state establishments was
attributed to the land bought out by the state. Even though this
law did not define in which cases the land allocated to state
establishments is attributed to the land bought out by the state,
taking account of one of the main principles of the process of
restoration of the rights of ownership, i.e. the priority of
restoration of the rights of ownership in kind, which means that
the rights of ownership must be restored in kind, with the
exception of the cases when there is no such possibility, one is
to draw a conclusion that allocation of land to state
establishments and its attribution to the land bought out by the
state (not to be returned to the claimants seeking to restore the
rights of ownership in kind) must be reasonably grounded.
Therefore, under Item 9 of Article 12 of the Law on Restoration
of the Rights of Ownership of Citizens to the Existing Real
Property (wording of 1 July 1997), only such land transferred to
state establishments could be attributed to land which is
necessary for the necessities of the state and which is bought
out by the state.
7. While assessing the compliance of Government resolution
No. 579 of 14 May 1999 with the Constitution and the Law on
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property in the aspect of attributing the land
which was transferred to the Weaponry Fund to the land which is
necessary for the necessities of the state and which is bought
out by the state, one must establish whether the transfer of land
made by this resolution meets the essential criteria of
reasonableness and legitimacy of such transfer of land, i.e.
whether it has been transferred to a state establishment, whether
it is necessary for the necessities of the state and whether in
case this land was returned to its former owners, the necessities
of the state could not be satisfied.
8. Paragraph 1 of Article 2 of the Republic of Lithuania Law
on the Weaponry Fund (wording of 11 July 1996) provides that the
Weaponry Fund shall be a state institution established and
functioning under the Government of the Republic of Lithuania,
having an exclusive right to supply state institutions and other
legal persons with arms, ammunition, explosives, fight equipment
or special devices according to the list approved by the
Government.
Article 4 of the Law on the Weaponry Fund determined the
tasks of the Weaponry Fund: "to supply the systems of national
defence and internal affairs, the State Security Department, and
other legal persons with arms, ammunition, explosives, fight
equipment or special devices, as well as natural persons with
pistols (revolvers) for self-defence and ammunition for these
arms".
9. While carrying out these tasks, the Weaponry Fund was
obliged to perform the functions linked to establishment of the
need and purchasing ammunition (Article 5 of the Law on the
Weaponry Fund (wording of 11 July 1996)), inter alia manufacture,
repair of arms, ammunition, explosives, fight equipment or
special devices or arrangement of their metrology, certification,
manufacture or repair (Item 7 of Paragraph 1 of Article 5).
10. Taking account of these provisions of the Law on the
Weaponry Fund which enshrine the status and functions of the
Weaponry Fund, one is to draw a conclusion that by Government
resolution No. 579 of 14 May 1999, the land was transferred to a
state establishment for the implementation of the functions
commissioned by a law which are linked to the necessities of the
state (to organise manufacture of ammunition which is supplied to
the systems of the interior and national defence).
11. On 27 April 1999, the Government adopted Resolution No.
469 "On Founding the State Ammunition Manufacture Enterprise and
Agreement to Perform Public Procurement by Way of Competitive
Negotiation" wherein it was established: to found a state
enterprise for manufacture of ammunition (Item 1); to commission
the Weaponry Fund to discharge the functions of the founder of
the ammunition manufacture enterprise (Item 2.1); to commission
the Ministry of Agriculture together with the Administration of
the Chief of the Kaunas County and the Weaponry Fund to choose a
place (a land lot) meeting all the requirements, to prepare a
draft decision regarding allocating a land lot to the Weaponry
Fund to use it on a non-terminable basis for the construction of
an ammunition manufacture enterprise and to submit it to the
Government before 1 May 1999 (Item 2.2).
11.1. While implementing this Government resolution, by
Order of the Minister of Agriculture No. 182 "Regarding the
Formation of the Commission for Implementation of the Republic of
Lithuania Government Resolution of 27 April 1999" of 29 April
1999 and Order of the Director of the Weaponry Fund No. 5
"Regarding the Formation of the Commission for Implementation of
Resolution of the Government of the Republic of Lithuania No. 469
of 27 April 1999", a commission was formed which, together with
the representatives of the Administration of the Chief of the
Kaunas County, chose a land lot for the construction of the
ammunition factory. The conclusions of the commission were
formalised by the 30 April 1999 Act on Choosing a Land Lot for
Construction wherein one assented to planning of the state
ammunition manufacture enterprise and its construction on a land
lot of 32.5 hectares, which is situated in the Vijūkai village of
Užliedžiai cadastre location of the Kaunas district. As the
representative of the Government, the party concerned, explained
at the Constitutional Court hearing, the area of the land lot
which is necessary for the construction of the ammunition factory
was established while taking account of the particular safety
requirements (regarding the areas of buildings of the factory,
their layout, safety zones) which are imposed for the factories
of such type, inter alia of the corresponding legal acts of
France, a state of NATO.
11.2. Taking account of these conclusions Government
Resolution No. 597 of 14 May 1999, which is disputed by the
petitioner, was adopted whereby a part (32.5 hectares) of the
land lot used by Lithuanian Veterinary Academy was transferred to
the Weaponry Fund to use it on a non-terminable basis for the
construction of the ammunition manufacture enterprise.
11.3. This factory (state enterprise the Giraitė Weaponry
Factory) was built in 2000. By Order of the Director of the
Weaponry Fund No. 9 of 12 March 2002, the state enterprise
Giraitė Weaponry Factory was issued a license for engagement in
ammunition manufacture.
11.4. By the Republic of Lithuania Law on Enterprises and
Facilities of Strategic Importance to National Security and Other
Enterprises Important to Ensuring National Security of 10 October
2002, the state enterprise Giraitė Weaponry Factory was included
into the list of state enterprises which are of strategic
importance of national security (Item 2 of Paragraph 1 of Article
2).
11.5. On 13 June 2006, the Seimas adopted the Republic of
Lithuania Law on the Conversion of the State Enterprise the
Giraitė Weaponry Factory into a Joint-Stock Company, whose
purpose is to convert the state enterprise Giraitė Weaponry
Factory (Article 1). By Article 2 of this law, the Weaponry Fund,
as the institution which implements the rights and duties of the
owner of the Giraitė Weaponry Factory, was granted the right to
convert the state enterprise Giraitė Weaponry Factory into the
Joint-Stock Company the Giraitė Weaponry Factory.
11.6. Following the Law on the Conversion of the State
Enterprise the Giraitė Weaponry Factory into a Joint-Stock
Company, by his Order No. 1A-57 "On the Conversion of the State
Enterprise Giraitė Weaponry Factory into the Joint-Stock Company
Giraitė Weaponry Factory" of 21 May 2007, the Director of the
Weaponry Fund decided to convert the state enterprise Giraitė
Weaponry Factory into the joint-stock company Giraitė Weaponry
Factory. Taking account of the changes of the legal form of the
Giraitė Weaponry Factory, the Director of the Weaponry Fund
granted the joint-stock company Giraitė Weaponry Factory a
specifying license allowing to produce ammunition and parts
thereof (the report of the Weaponry Fund "On Specifying the
Licence" of 20 September 2007, Information Bulletin, No. 75, 26
September 2007).
12. Taking account of the circumstances set forth, one is to
draw a conclusion that by Government resolution No. 579 of 14 May
1999, a land lot was transferred to the Weaponry Fund for the
implementation of the functions of the Weaponry Fund, a state
institution, which are linked to ensuring the necessities of the
state, therefore, this land lot is to be attributed to the
category of land bought out by the state which is specified in
Item 9 (wording of 1 July 1997) of Article 12 of the Law on
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property. In this context, it is important to note
that the land was transferred to the Weaponry Fund on the grounds
of the conclusions of the competent state institutions regarding
the need of the land and the suitability of the concrete land
lot. In addition, as it is obvious from the material of the case,
if the said part of land had been returned to its former owners
in kind, it would not have been possible to ensure the
satisfaction of the necessities of the state.
Therefore, the part of the land attributed to the LVA was
allocated for the Weaponry Fund for use upon appearance of
another not less important need of society, i.e. the needs of
society, due to which the part of land could not be returned in
kind to its former owner did not disappear in general, only its
character changed.
Thus, it needs to be held that the land was assigned to the
Weaponry Fund (by attributing it at the same time to the category
of land bought out by the state) by Government resolution No. 579
of 14 May 1999 without violating the constitutional requirements
of protection of the rights of ownership which are to be applied
in the process of restoration of the rights of ownership, i.e. in
the presence of the ground for the buying out of the land for the
necessities of the state provided for in the law (Item 9 (wording
of 1 July 1997) of Article 12 of the Law on Restoration of the
Rights of Ownership of Citizens to the Existing Real Property)
and after the competent institutions have assessed the specific
need of land, and that it is used for such necessities for which
it was granted.
13. In this context it needs to be noted that the land lot
of 32.5 hectares which was taken from the land used by Lithuanian
Veterinary Academy and which, as it has already been held in this
Constitutional Court ruling, is attributed to the category of
land which is necessary for the necessities of the state (for the
performance of direct functions of the scientific and educational
establishment) and at the same time bought out by the state, and
which was transferred to the Weaponry Fund, without virtually
changing the legal status of this land from the point of view of
the right of ownership, from one category of the land which is
bought out by the state specified in Item 9 (wording of 1 July
1997) of Article 12 of the Law on Restoration of the Rights of
Ownership of Citizens to the Existing Real Property it fell into
another category of land bought out by the state specified in the
same provision of the law. Therefore, in the context of legal
relations of restoration of the rights of ownership, the status
of this land, as one which is bought out by the state and not
returned to its former owners in kind, has not changed, either.
14. It has been mentioned that the necessities which are
understood as the need of society due to which the existing real
property may not be returned to its former owner in kind, but is
bought out by the state, may change; some necessities may be
replaced by others.
15. Therefore, when the land which had been used until then
by the LVA was attributed to the Weaponry Fund by Government
resolution No. 579 of 14 May 1999, one did not deviate from the
imperatives of inviolability and protection of property which are
enshrined in Article 23 of the Constitution, from the
constitutional principle of a state under the rule of law, one
did not disregard the provision of the Preamble to the Law on the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property (the compliance of the said Government
resolution with the provisions of this preamble is disputed in
the constitutional justice case at issue).
16. Taking account of the arguments set forth, one is to
draw a conclusion that Government Resolution No. 579 "On
Allocation of a Land Lot and on Amending the Targeted Purpose of
the Land Use" of 14 May 1999, to the extent that it has assigned
the land to the Weaponry Fund, is not in conflict with the
constitutional principle of a state under the rule of law, with
Paragraphs 1 and 3 of Article 23 of the Constitution, and with
the provision "the restoration of continuation of the rights of
ownership is based on the provision of the 18 June 1991 Law of
the Republic of Lithuania 'On the Procedure and Conditions of
Restoration of the Rights of Ownership to the Existing Real
Property'the existing real property shall be returned to
citizens of the Republic of Lithuania, and in the event it is
impossible to do so, they shall be compensated justly" of the
Preamble (wording of 1 July 1997) of the Law on Restoration of
the Rights of Ownership of Citizens to the Existing Real
Property.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that the provision of the List of the
Agricultural Enterprises and Organisations not Subject to
Privatisation approved by Resolution of the Government of the
Republic of Lithuania No. 540 "On the Approval of the List of the
Agricultural Enterprises and Organisations not Subject to
Privatisation" of 9 December 1991 (wording of 27 February 1992,
Official Gazette Valstybės žinios, 1992; No. 6-131, Lietuvos
aidas, 5 March 1992; Official Gazette Valstybės žinios, 1992, No.
13-373) that the area of the farming lands not subject to
privatisation assigned to Lithuanian Veterinary Academy is 800
hectares was not in conflict with the Constitution of the
Republic of Lithuania and with the provision "the right of
ownership to the existing real property shall be restored: (1) by
returning the disseized property in kind or equivalent kind; (2)
by paying single state grants to the persons specified in Article
2 of this law enabling them to take over a corresponding part of
the state-owned (society-owned) property which is being
privatised if it is impossible to return the disseized property
in kind or in equivalent kind <...>" of Article 1 of the Republic
of Lithuania Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property" (wording of 18 June 1991)".
2. To recognise that the List of the Agricultural
Enterprises and Organisations not Subject to Privatisation
approved by Government of the Republic of Lithuania Resolution
No. 540 "On the Approval of the List of the Agricultural
Enterprises and Organisations Not Subject to Privatisation" of 9
December 1991 (wording of 14 May 1999, Official Gazette Valstybės
žinios, 1992, No. 6-131; 1999, No. 43-1372) to the extent that it
has assigned the land to Lithuanian Veterinary Academy, was not
in conflict with the Constitution of the Republic of Lithuania
and with the provision "the restoration of continuation of the
rights of ownership is based on the provision of the 18 June 1991
Law of the Republic of Lithuania 'On the Procedure and Conditions
of Restoration of the Rights of Ownership to the Existing Real
Property'the existing real property shall be returned to
citizens of the Republic of Lithuania, and in the event it is
impossible to do so, they shall be compensated justly" of the
Preamble (wording of 1 July 1997) of the Republic of Lithuania
Law on Restoration of the Rights of Ownership of Citizens to the
Existing Real Property.
3. To recognise that Resolution of the Government of the
Republic of Lithuania No. 579 "On Allocation of a Land Lot and on
Amending the Targeted Purpose of the Land Use" of 14 May 1999 to
the extent that it has assigned the land to the Weaponry Fund of
the Republic of Lithuania under the Government of the Republic of
Lithuania is not in conflict with the Constitution of the
Republic of Lithuania and with the provision "the restoration of
continuation of the rights of ownership is based on the provision
of the 18 June 1991 Law of the Republic of Lithuania 'On the
Procedure and Conditions of Restoration of the Rights of
Ownership to the Existing Real Property'the existing real
property shall be returned to citizens of the Republic of
Lithuania, and in the event it is impossible to do so, they shall
be compensated justly" of the Preamble (wording of 1 July 1997)
of the Republic of Lithuania Law on Restoration of the Rights of
Ownership of Citizens to the Existing Real Property.
4. To recognise that Resolution of the Government of the
Republic of Lithuania No. 266 "On Partial Amendment of Government
Resolution No. 1026 'On Users of the Land Allotted to Scientific
and Educational Establishments and Transferred to State
Specialised Seed-Growing and Stock-Breeding Farms, Special-
Purpose Stock-Breeding Companies and on Establishing the Size of
Land Lots Used by These Users' of 13 August 1998" of 8 March 2001
(Official Gazette Valstybės žinios, 2001, No. 22-732) to the
extent that it has assigned the land to Lithuanian Veterinary
Academy is not in conflict with the Constitution of the Republic
of Lithuania and with the provision "the restoration of
continuation of the rights of ownership is based on the provision
of the 18 June 1991 Law of the Republic of Lithuania 'On the
Procedure and Conditions of Restoration of the Rights of
Ownership to the Existing Real Property'the existing real
property shall be returned to citizens of the Republic of
Lithuania, and in the event it is impossible to do so, they shall
be compensated justly" of the Preamble (wording of 1 July 1997)
of the Republic of Lithuania Law on Restoration of the Rights of
Ownership of Citizens to the Existing Real Property.
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:
Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis