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On granting the right to Vilnius City Council to use a plot of land

Case No. 31/2009

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF ITEM 1.3 OF RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 895 “ON ALLOCATION OF STATE-OWNED PLOTS OF LAND TO THE COUNCIL OF THE CITY OF VILNIUS FOR USE” OF 30 JULY 1999 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND PARAGRAPH 6 OF ARTICLE 5 OF THE REPUBLIC OF LITHUANIA LAW ON RESTORATION OF THE RIGHTS OF OWNERSHIP OF CITIZENS TO THE EXISTING REAL PROPERTY

 11 October 2012

Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

in the presence of the representative of the Government of the Republic of Lithuania, the party concerned, who was Zita Kvietkienė, Head of the Land Management Division of the Land Administration Department of the National Land Service under the Ministry of Agriculture,

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 25 September 2012, heard constitutional justice case No. 31/2009 subsequent to the petition (No. 1B-41/2009) of the Vilnius Regional Court, the petitioner, requesting to investigate whether Item 1.3 of Resolution of the Government of the Republic of Lithuania No. 895 “On Allocation of State-owned Plots of Land to the Council of the City of Vilnius for Use” of 30 July 1999, insofar as that resolution allocated the 8.20-hectare plot of land, the restoration of the rights of ownership to which is aspired by claimants and a third party with stated independent claims, to the Council of the City of Vilnius for use, is not in conflict with Article 23 of the Constitution of the Republic of Lithuania, the constitutional principle of a state under the rule of law and Paragraph 6 of Article 5 of the Republic of Lithuania Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

The Constitutional Court

has established:

I

The petition of the Vilnius Regional Court, the petitioner, is substantiated by the fact that at the time when the citizens requested that a decision be adopted to restore their rights of ownership to the plot of land in the Pilaitė microdistrict, this plot had not been assigned to the municipality of the city of Vilnius then. According to the petitioner, it was assigned later by Item 1.3 of Government Resolution No. 895 “On Allocation of State-owned Plots of Land to the Council of the City of Vilnius for Use” of 30 July 1999 (hereinafter also referred to as Government resolution No. 895 of 30 July 1999). The petition of the petitioner points out that, according to the data of the case, the land, the restoration of the rights of ownership to which is aspired by the claimants and a third party with stated independent claims, is not used to satisfy such public needs that would create the grounds to buy out the said land from the claimants and the third party with stated independent claims. After Government resolution No. 895 of 30 July 1999 had granted the right to the Council of the City of Vilnius to use vacant state-owned plots of land in the city of Vilnius, a part of the plot of land the restoration of the rights of ownership to which is aspired by the claimants and a third party with stated independent claims, was also included into the aforesaid territory. The petitioner believes that, after this land had been allocated to the municipality of the city of Vilnius, the opportunity of citizens to restore the rights of ownership to the existing real property was unreasonably limited and Article 23 of the Constitution which ensures the protection of the rights of ownership, the principle of legitimate expectations and Paragraph 6 of Article 5 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property were thus violated.

II

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from Zita Kvietkienė, Head of the Land Management Division of the Land Administration Department of the National Land Service under the Ministry of Agriculture and Jelena Liaskovskaja, Head of the Legal Division of the same service, wherein it is maintained that the impugned legal regulation is not in conflict with Article 23 of the Constitution, the constitutional principle of a state under the rule of law and Paragraph 6 of Article 5 of the Law. The position of the representatives of the party concerned is substantiated by the following arguments.

  1. According to the official constitutional doctrine, the laws regulating restoration of the rights of ownership to the existing real property may provide that objects of property shall not be returned in kind to the persons who have the right to restoration of the rights of ownership, but are bought out by the state; the provision of the law that, in case it is impossible to return the property in kind, compensation must be allocated, is not in conflict with the principles of inviolability of property and protection of the rights of ownership, since just compensation ensures the restoration of the rights of ownership as well. When situations are established by law as to when the existing real property (including land) is not returned in kind to its former owners, but their rights of ownership are restored by other ways established in the law, also the real property necessary for the needs of society may be not returned in kind. Needs of society are interests of the entire society or part thereof, where the state, while discharging its functions, is constitutionally obligated to secure and satisfy such interests.
  2. The representatives of the party concerned noted that the 120-hectare plot of land (to a part whereof the restoration of the rights of ownership in kind is aspired) in the Pilaitė microdistrict is situated in the territory which was transferred, by the 22 April 1988 Ordinance No. 87p of the Soviet of Ministers of the Lithuanian SSR, to the Executive Committee of the City of Vilnius, inter alia for building the Sudervėlė residential district. Thus, in the opinion of the representatives of the party concerned, it is regarded that this land was attributed to the city of Vilnius as far back as from 1988.
  3. Without taking account of the fact whether or not the said plot of land could have been attributed to the territory of the city of Vilnius prior to 1 June 1995 or after that date, it would not have been possible (and it is not possible) to restore the rights of ownership to this plot of land in kind, since it is attributed to land subject to being bought out by the state: the greater part of this territory is covered by forests of state significance, which, as property belonging to the state by exclusive right of ownership, may not be returned in kind or transferred to ownership of other persons; the other part of the territory is recreational and meant for the needs of society—for setting up a city park.

III

  1. At the Constitutional Court hearing, Z. Kvietkienė, the representative of the Government, the party concerned, essentially reiterated the arguments and answered the questions of the justices of the Constitutional Court.
  2. At the Constitutional Court hearing, also Loreta Dovidauskienė, chief specialist of the Land Management Division of the Land Administration Department of the National Land Service under the Ministry of Agriculture, took the floor and answered the questions submitted to her.

The Constitutional Court

holds that:

I

  1. The Vilnius Regional Court, the petitioner, requests investigation into whether Item 1.3 of Government resolution No. 895 of 30 July 1999, insofar as that resolution allocated the 8.20-hectare plot of land, the restoration of the rights of ownership to which is aspired by claimants and a third party with stated independent claims, to the Municipal Council of the City of Vilnius for use, is not in conflict with Article 23 of the Constitution, the constitutional principle of a state under the rule of law and Paragraph 6 of Article 5 of the Law.
  2. On 30 July 1999, the Government adopted Resolution No. 895 “On Allocation of State-owned Plots of Land to the Council of the City of Vilnius for Use”, which came into force on 12 August 1999.

Item 1.3 of that resolution whose provisions to a certain extent are impugned by the petitioner in the constitutional justice case at issue prescribed:

“The Government shall resolve:

  1. To grant the right to the Council of the City of Vilnius to use the following: <...>

1.3. in the Pilaitė microdistrict, the 120-hectare plot formed by Decision of the Board of the City of Vilnius No. 17V ‘On Establishing the Limits and Size of the Plot in the Pilaitė Microdistrict’ of 7 January 1999.”

Thus, by Item 1.3 of its resolution No. 895 of 30 July 1999, the Government granted the right to the Council of the City of Vilnius to use the 120-hectare plot of land in the Pilaitė microdistrict including, according to the petitioner, also the 8.20-hectare plot of land the restoration of the rights of ownership to which is aspired by the claimants and a third party with stated independent claims in the case considered by the petitioner.

  1. It needs to be noted that the issues whether concrete persons reasonably aspire to restore the rights of ownership to the said plot of land, as well as the size of the plot of land to which the rights of ownership is aspired to be restored in kind and which is included into the area of the 120-hectare plot of land in the Pilaitė microdistrict, are not a matter of investigation in the constitutional justice case at issue. The decision of these questions are within the jurisdiction of the court that is considering the corresponding case on restoration of the rights of ownership.
  2. Thus, in the constitutional justice case at issue the Constitutional Court will investigate whether Item 1.3 of Government resolution No. 895 of 30 July 1999 which granted the right to the Council of the City of Vilnius to use the 120-hectare plot of land (to a part whereof the restoration of the rights of ownership in kind is aspired in the case considered by the petitioner) in the Pilaitė microdistrict, is not in conflict with Article 23 of the Constitution, the constitutional principle of a state under the rule of law and Paragraph 6 of Article 5 of the Law.

II

  1. In the constitutional justice case at issue in the course of the investigation into the compliance of Item 1.3 of Government resolution No. 895 of 30 July 1999 which granted the right to the Council of the City of Vilnius to use the 120-hectare plot of land in the Pilaitė microdistrict with the Constitution and the Law it is important to elucidate inter alia the changes in the legal regulation important in the case at issue and related to the legal status of the 120-hectare plot of land in the Pilaitė microdistrict, which was granted to the Council of the City of Vilnius, also, to elucidate the purpose of that plot of land.
  2. On 22 April 1988, the Soviet of Ministers of the Lithuanian SSR adopted Ordinance No. 87p by Item 1 whereof inter alia allocated and assigned plots of land in the districts of Akmenė, Anykščiai, Jurbarkas, Kapsukas, Kaunas, Klaipėda, Kretinga, Panevėžys, Radviliškis, Skuodas, Ukmergė, and Vilnius, as well as in the cities of Palanga and Vilnius subsequent to Appendixes 1–15.

Under Appendix 12 “On Assigning Land in the District of Vilnius” of the same ordinance, inter alia a 681.6-hectare plot of land was assigned to the Capital Construction Board of the Executive Committee of the City Vilnius for building the Sudervėlė residential district. The same annex also established the conditions for assigning the land, inter alia the fact that the Executive Committee of the City of Vilnius pays the sum of money established in the annex “for development of the new land instead of the <…> agricultural land taken for permanent use for building the Sudervėlė residential district”, where part of the money is allocated for the construction and installation work, for payment for the facilities of melioration and land irrigation system to be removed, by this money one also pays for the invested, but unused funds for supervising the forest etc.

Thus, by its resolution No. 87p of 22 April 1988, the Soviet of Ministers of the Lithuanian SSR assigned certain territories in the district of Vilnius for use for the needs of the city of Vilnius, inter alia for building the Sudervėlė residential district.

It is clear from the graphics matter in the constitutional justice case at issue (“Drawing of delimitation of the plot, which is within the limits of Buivydiškės Soviet State-owned Farm-Technical School, assigned (for building the Sudervėlė residential district) to the Capital Construction Board of the Executive Committee of the Soviet of People’s Deputies of the City of Vilnius” of the drawing of the land allocation project “The project for land allocation to the Capital Construction Board of the Executive Committee of the City of Vilnius (for building the Sudervėlė residential district and laying waste piping and rain drainage sewers”, whereby one delineated the limits approved by Ordinance of the Soviet of Ministers of the Lithuanian SSR No. 87p of 22 April 1988) that the territory allocated by Appendix 12 of Ordinance of the Soviet of Ministers of the Lithuanian SSR No. 87p of 22 April 1988 for inter alia building the Sudervėlė residential district also included the 120-hectare plot of land (to a part whereof the restoration of the rights of ownership in kind is aspired in the case considered by the petitioner) in the Pilaitė microdistrict.

Thus, the territory, including inter alia the 120-hectare plot of land in the Pilaitė microdistrict, for use for the needs of the city of Vilnius, inter alia for building the Sudervėlė residential district, was allocated and assigned by Ordinance of the Soviet of Ministers of the Lithuanian SSR No. 87p of 22 April 1988.

  1. The graphics matter in the constitutional justice case at issue, inter alia the Project of Organisation of Land Exploitation of Land Reform for Buivydiškės Further Education Agricultural School of the Vilnius District, in which one can discern the build-up zone of the city of Vilnius for 1994, the Project of the Limits of the Territory of the Municipality of the City of Vilnius, prepared in 1994, allows to hold that the 120-hectare plot of land in the Pilaitė microdistrict, which is covered by the territory allocated by Ordinance of the Soviet of Ministers of the Lithuanian SSR No. 87p of 22 April 1988 for inter alia building the Sudervėlė residential district, was marked already at that time as the territory of the city of Vilnius allocated to it by the said ordinance of the Soviet of Ministers of the Lithuanian SSR.
  2. On 24 April 1996, the Seimas adopted the Republic of Lithuania Law on Amending the Administrative Boundaries of the Territories of the Municipalities of the City of Vilnius, the Districts of Vilnius and Trakai, which came into force on 10 May 1996 and which inter alia established the administrative boundaries of the territory of the municipality of the city of Vilnius.

4.1. Item 2 of Paragraph 1 of Article 1 of the Law on Amending the Administrative Boundaries of the Territories of the Municipalities of the City of Vilnius, the Districts of Vilnius and Trakai prescribed:

“1. To attribute the following residential areas or parts thereof of the municipality of the district of Vilnius to the municipality of the city of Vilnius: <...>

2) the residential areas of Pilaitė, Smalinė, Varnė and a part of the residential areas of Buivydiškės, Gudeliai, Salotė, Dvarykščiai, Vilkeliškės, Padekaniškės, Kriaučiūnai, Platiniškės, Naujoji, Plytinė, Gineitiškės, Pavilioniai (the land used by the Sudervėlė blocks of residential houses of the city of Vilnius—583.2 ha <...>).”

Thus, according to the administrative boundaries of the territory of the municipality of the city of Vilnius established by the said law, the 120-hectare plot of land (to a part whereof the restoration of the rights of ownership in kind is aspired in the case considered by the petitioner) in the Pilaitė microdistrict was included into the territory of the municipality of the city of Vilnius as defined by the established boundaries.

It needs to be noted that it is clear from the travaux préparatoires, inter alia from the explanatory note to the draft of this law that the purpose of that law is “changing the administrative boundaries of the territory of the municipality of the city of Vilnius so that the actual built-up territory, which has been projected for building up, according to the detailed plans, would be legalised”.

Consequently, after the Law on Amending the Administrative Boundaries of the Territories of the Municipalities of the City of Vilnius, the Districts of Vilnius and Trakai had attributed the 120-hectare plot of land (to a part whereof the restoration of the rights of ownership in kind is aspired in the case considered by the petitioner) in the Pilaitė microdistrict to the territory of the municipality of the city of Vilnius, the factual built-up territory, whose building up had been planned, in the district of Vilnius, which had been allocated for use for the needs of the city of Vilnius, inter alia for building the Sudervėlė residential district, as far back as in 1988, i.e. prior to the adoption of the Law on Amending the Administrative Boundaries of the Territories of the Municipalities of the City of Vilnius, the Districts of Vilnius and Trakai, was legalised.

  1. Under the legal regulation in force at the time of the adoption of Government resolution No. 895 of 30 July 1999, Item 1.3 whereof is impugned by the petitioner, inter alia the Government was allowed to grant the right to use state-owned land (Item 1 of Paragraph 1 of Article 23 (wording of 26 June 1997) of the Republic of Lithuania Law on Land), whereas the function of territorial planning belonged to municipalities (Article 9 (wording of 27 June 1997) of the Republic of Lithuania Law on Territorial Planning).

On 18 December 1998, the Municipal Council of the City of Vilnius adopted Decision No. 292 “On Approving the General Plan of the City of Vilnius” whereby the General Plan of the City of Vilnius was approved. It is clear from the material of the constitutional justice case at issue, inter alia from a selected piece of the General Plan of the City of Vilnius approved by the said decision that the 120-hectare plot of land (to a part whereof the restoration of the rights of ownership in kind is aspired in the case considered by the petitioner) in the Pilaitė microdistrict, is ascribed to the territory of general use meant for recreation and infrastructure; that purpose did not change also in subsequently approved general plans of the city of Vilnius (the piece of the General Plan of the City of Vilnius as approved by Decision of the Municipal Council of the City of Vilnius No. 292 of 18 December 1998, cadastre No. 0101/0167:0248, the piece of the General Plan of the City of Vilnius as approved by the decision No. I-335 of 29 December 2004, the piece of the General Plan of the City of Vilnius as approved by the decision No. I-1519 of 14 February 2007).

  1. As mentioned before, on 30 July 1999, the Government adopted Resolution No. 895 “On Allocation of State-owned Plots of Land to the Council of the City of Vilnius for Use” Item 1.3 whereof is impugned by the petitioner in the constitutional justice case at issue.

6.1. Government resolution No. 895 of 30 July 1999 inter alia prescribes:

“Pursuant to Articles 22 and 23 of the Republic of Lithuania Law on Land (Official Gazette Valstybės žinios, 1994, No. 34-620; 1995, No. 53-1294; 1997, No. 66-1598) and seeking to create better conditions to satisfy the needs of residents of the city of Vilnius and to organise their recreation, the Government of the Republic of Lithuania shall resolve:

  1. To grant the right to the Council of the City of Vilnius to use vacant plots of land in the city of Vilnius: <...>

1.3. in the Pilaitė microdistrict, the 120-hectare plot formed by Decision of the Board of the City of Vilnius No. 17V ‘On Establishing the Limits and Size of the Plot in the Pilaitė Microdistrict’ of 7 January 1999.

  1. To establish that the plots of land specified in Items 1.1, 1.2 and 1.3 of this Resolution are land of the different purpose used for construction and other needs on a non-time-limited basis. <...>”

6.2. Thus, the preamble to Government resolution No. 895 of 30 July 1999 provides that the Government allocates state-owned plots of land to the Council of the City of Vilnius with a concrete objective—to satisfy the needs of residents of the city of Vilnius and to organise their recreation. The said resolution also established that in order to reach this objective the Council of the City of Vilnius is granted the right to use inter alia the 120-hectare plot of land in the Pilaitė microdistrict of the city of Vilnius.

It needs to be noted that Item 2 of Government resolution No. 895 of 30 July 1999 established the purpose of the land granted to the Council of the City of Vilnius for use: it is land of a different purpose, used for construction and other needs. While construing Item 2 of Government resolution No. 895 of 30 July 1999 in the context of the other provisions thereof, inter alia those set forth in the preamble thereto, one needs to note that the state-owned land allocated for construction and other needs should be used to satisfy the needs of residents of the city of Vilnius and to organise their recreation.

6.3. Government resolution No. 895 of 30 July 1999 was amended by inter alia Government Resolution No. 414 “On Amending Resolution of the Government of the Republic of Lithuania No. 895 ‘On Allocation of State-owned Plots of Land to the Council of the City of Vilnius for Use’ of 30 July 1999” of 8 April 2003 (hereinafter referred to as Government resolution No. 414 of 8 April 2003), wherein it was inter alia established that the plot of land pointed out in Item 1.3 of Government resolution No. 895 of 30 July 1999 is land of the different purpose used for setting up a municipal park, by preserving the existing 74.49-hectare recreational forests of state significance.

If the legal regulation established in Item 2 of Government resolution No. 895 of 30 July 1999 is compared with that established in Item 2 (wording of 8 April 2003) of the same resolution, it is clear that the legal regulation established therein was changed so that the purpose of the plot of land in the Pilaitė microdistrict allocated to the Council of the City of Vilnius was specified—it was pointed out that the said land is land of a different purpose used for setting up a municipal park, by preserving the existing recreational forests of state significance. Thus, Government resolution No. 414 of 8 April 2003 whereby Item 2 of Government resolution No. 895 of 30 July 1999 was amended provided a more specific definition as to which needs of residents of the city of Vilnius must be satisfied by the plot of land in the Pilaitė microdistrict allocated to the Council of the City of Vilnius for use.

It needs to be noted that the legal regulation, which is impugned in the constitutional justice case at issue and established in Item 1.3 of Government resolution No. 895 of 30 July 1999, which granted the right to the Council of the City of Vilnius to use the 120-hectare plot of land in the Pilaitė microdistrict, was not amended by Government resolution No. 414 of 8 April 2003.

  1. To summarise the above, it needs to be held that the 120-hectare plot of land (to a part whereof the restoration of the rights of ownership in kind is aspired in the case considered by the petitioner) in the Pilaitė microdistrict, was allocated by the 22 April 1988 Ordinance No. 87p of the Soviet of Ministers of the Lithuanian SSR for use for the needs of the city of Vilnius, inter alia for building the Sudervėlė residential district, whilst after the Law on Amending the Administrative Boundaries of the Territories of the Municipalities of the City of Vilnius, the Districts of Vilnius and Trakai adopted on 24 April 1996 inter alia had attributed that plot of land to the territory of the municipality of the city of Vilnius, the factual built-up territory, whose building up had been planned was only legalised. By Item 1.3 (the compliance of which with the Constitution and the provisions of the Law is investigated in the constitutional justice case at issue) of its resolution No. 895 of 30 July 1999, the Government, seeking to create better conditions to satisfy the needs of residents of the city of Vilnius and to organise their recreation, granted the right to the Council of the City of Vilnius to use the 120-hectare plot of land in the Pilaitė microdistrict, defined as land of the different purpose used for construction and other needs; the amendments made by Government resolution No. 414 of 8 April 2003 specified the manner of use of the 120-hectare plot of land in the Pilaitė microdistrict allocated to the Council of the City of Vilnius so that better conditions would be created to satisfy the needs of residents of the city of Vilnius and to organise their recreation: that plot of land must be used for setting up a municipal park, by preserving the existing 74.49-hectare recreational forests of state significance.

III

On the compliance of Item 1.3 of Government Resolution No. 895 “On Allocation of State-owned Plots of Land to the Council of the City of Vilnius for Use” of 30 July 1999 with Article 23 of the Constitution, the constitutional principle of a state under the rule of law and Paragraph 6 of Article 5 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

  1. It has been mentioned that in the constitutional justice case at issue it is investigated whether Item 1.3 of Government resolution No. 895 of 30 July 1999 which granted the right to the Council of the City of Vilnius to use the 120-hectare plot of land in the Pilaitė microdistrict is not in conflict inter alia with Paragraph 6 of Article 5 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.
  2. The doubts of the petitioner regarding the compliance of the impugned legal regulation with the provisions of Paragraph 6 of Article 5 of the Law are substantiated by the fact that, after the vacant plot of land had been granted by Item 1.3 of Government resolution No. 895 of 30 July 1999 to the municipality of the city of Vilnius, the possibility for citizens to restore their rights to the exiting real property was unreasonably denied.
  3. On 1 July 1997, the Seimas adopted the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which came into force (save Paragraph 7 of Article 21 thereof) on 9 July 1997.

3.1. Article 5 “Conditions and Procedure for the Restoration of the Ownership Rights to Urban Land” (wording of 13 May 1999) of the Law prescribed:

“1. The ownership rights shall be restored to the land formerly held by the owner, provided that the area of said land did not exceed 150 hectares, including forests and water bodies.

  1. The rights of ownership to the land, which was situated prior to 1 June 1995 within the territories that were attributed in the prescribed manner to towns, shall be restored according to the following procedure:

1) by transferring without payment into the ownership of the citizens who have residential houses or other buildings by the right of ownership, a plot of land in use by them, the boundaries whereof are established in the territorial planning documents, adjoining these buildings or a plot of land in use by them, designated for another purpose (kitchen garden, garden etc.) and provided for in the territorial planning documents, except within the territory of Curonian Spit National Park, but not exceeding 0.2 hectares in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas and not exceeding 0.3 hectares in other towns. When a utilised plot of land, adjoining structures, lies within the land held by the right of ownership and its area exceeds 0.2 hectares or 0.3 hectares respectively, upon the citizen’s request, this larger utilised plot of land adjoining the structures shall be transferred into the right of ownership without payment, as well as a remaining, free (without constructions) area of the plot of land possessed by the owner which adjoins the said utilised plot of land (when there are several citizens enjoying the right to restore the right of ownership to such land—upon their request, this larger utilised, free (without constructions), remaining area of the plot of land adjoining the structures shall be transferred without payment into joint ownership or into the ownership of the owner of the structures), regardless of the drawn-up territorial planning documents of that locality, but not exceeding 1 hectare of total area in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas and not exceeding 1.5 hectares of total area in other cities;

2) by transferring without payment a new plot of land into the ownership of a citizen, which is prepared or not prepared for use in a manner prescribed by the Government, when the Government has approved its size in the same town in which he previously owned the land, with the exception of the territory of Curonian Spit National Park, or at the request of the citizens—in the town where they reside (except the towns of Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas and the territory of Curonian Spit National Park). New plots of land in the parts lying within the territories of the towns which are entered in the Register of Immovable Cultural Properties of the Republic of Lithuania (the List of Cultural Areas) shall not be transferred to ownership for construction of a private house or other purposes (except the cases when in this territory construction of a private house is intended for a citizen according to the territorial planning documents on the land possessed by him by the right of ownership); utilised plots of land shall be transferred without payment into ownership only to those persons who own residential houses or other buildings by the right of ownership in these parts lying within the territories of towns. When the citizen refuses to accept a new plot of land prepared or not prepared for use (for choice) in a manner prescribed by the Government, which is transferred without payment to the ownership of the said citizen for construction of a private house, at his request, he shall be given as a compensation an average amount of money due for a plot of land, the size whereof is established by the Government, in that town in accordance with Article 16 of this Law. Such sum of money shall be fixed by the Government.

  1. The size of a new plot of land, transferred without payment into the ownership of citizens, which is situated within the town limits shall, at the proposal of the town and district municipalities, be approved by the Government. The minimum size of a new plot of land transferred without payment into ownership shall be 0.04 hectares (with the exception of a smaller plot of land held by the right of ownership). The maximum size of a new plot of land transferred without payment into ownership must not exceed 0.2 hectares in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga and Birštonas, and 0.3 hectares in other towns.
  2. If the size of a plot of land, held by the owner, was at least 0.04 hectares larger than the size of a plot of land he presently utilises, he shall, if possible, additionally receive without payment into his ownership a new plot of land, the size whereof is at least 0.04 hectares, designated for individual building and other purposes. The total area of the plot of land a citizen utilises, which is transferred without payment into his ownership, and of the new plot of land, additionally transferred without payment into ownership must not exceed the size, set by the Government, of the area of a new plot of land transferred without payment into ownership for individual building and other purposes in that town.
  3. In case the area of a plot of land within the town limits, which has been restituted or transferred without payment into the ownership of a citizen, is smaller than the area of the plot of land to which, pursuant to this Law, his rights of ownership are being restored, the State shall compensate him for the difference in the plots of land according to Article 16 of this Law.
  4. The right of ownership to land situated within the territories of the municipalities of the towns of Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga and Birštonas, which was attributed to the territories of the municipalities of these towns after 1 June 1995, shall be restored in the manner prescribed by Article 4 of this Law by giving it back in kind, and if this land is, according to Article 12 of this Law, attributed to the land subject to being bought out by the State, the State shall compensate for it according to Article 16 of this Law.”

Thus, Article 5 (wording of 13 May 1999) of the Law regulates the procedure and conditions for restoration of the rights of ownership to urban land, which are different in terms of when that territory in which the said land is situated was attributed to towns under established procedure—whether prior to 1 June 1995 (Paragraph 2) or after that date (Paragraph 6).

It needs to be noted that, by means of the legal regulation consolidated in Article 5 of the Law relating the procedure and conditions for restoring the rights of ownership to urban land to the fact namely when the territories in which that land is situated was attributed to towns, the legislator did not establish anything regarding the power of the legal acts that were allowed to do that.

3.2. In this context it needs to be noted that in its Ruling “On the compliance of Paragraphs 2, 3, 4, and 5 of Article 5, Item 3 of Article 12 and Paragraph 3 of Article 16 as well as Item 5 of Paragraph 9 of the same article of the Republic of Lithuania Law on the Restoration of Citizens’ Rights of Ownership to the Existing Real Property with the Constitution of the Republic of Lithuania and on the compliance of Paragraphs 2, 3, 4, and 5 of Article 5 as well as Item 3 of Article 12 of the same law with Article 8 of the Constitutional Law on the Subjects, Procedure, Terms, Conditions and Restrictions of the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania” of 2 April 2001, the Constitutional Court inter alia recognised that Paragraph 2 of Article 5 of the Law to the extent that it provides that vacant (not built over) land is not returned in kind if the citizen does not have a residential house or another structure adjoining the land previously held by him by the right of ownership even though there is not any particular need of society for this vacant (not built over) land is in conflict with Paragraph 3 of Article 23 of the Constitution.

3.3. Paragraph 6 of Article 5 of the Law (the compliance of Item 1.3 of Government resolution No. 895 of 30 July 1999 with the said paragraph is impugned) provides that the right of ownership to land inter alia attributed to the territory of the municipality of the city of Vilnius after 1 June 1995 shall be restored in the manner prescribed by Article 4 of the Law by giving it back in kind, if this land is, according to Article 12 of the Law, not attributed to the land subject to being bought out by the state. It needs to be noted that Article 4 “Conditions and Procedures for the Restoration of the Rights of Ownership to Land in Rural Areas” of the Law regulates the restoration of the rights of ownership to land in rural areas.

Thus, under Paragraph 6 of Article 5 of the Law, which is designated for regulating the restoration of the rights of ownership to land in the territories attributed to towns, inter alia to the city of Vilnius, after 1 June 1995, the rights of ownership to such land are restored under the same procedure and conditions as to land in a rural area.

Consequently, while deciding as to the restoration of the conditions and procedure of the restoration of the rights of ownership to urban land, i.e. whether the rights to that land are restored as to urban land or as to rural land, that fact is of importance as to when the territory in which the plot of land is situated, to which the restoration of the rights of ownership is aspired, was attributed to the city—prior to 1 June 1995 or after that date.

3.4. Article 5 (wording of 13 May 1999) of the Law has been amended and/or supplemented more than once, however, Paragraph 6 of Article 5 thereof (the compliance of Item 1.3 of Government resolution No. 895 of 30 July 1999 with the said paragraph is impugned) has not been amended.

  1. As mentioned before, the doubts of the petitioner regarding the compliance of the impugned legal regulation with the provisions of Paragraph 6 of Article 5 of the Law are substantiated by the fact that after Government resolution No. 895 of 30 July 1999 had granted the right to the municipality of the city of Vilnius to use vacant plots of state-owned land (these plots of land include also the territory to a part whereof the restoration of the rights of ownership in kind is aspired in the case considered by the petitioner) in the city of Vilnius, the possibility for citizens to restore their rights to the exiting real property was unreasonably denied.
  2. It has also been mentioned that the territory, including inter alia the 120-hectare plot of land in the Pilaitė microdistrict, for use for the needs of the city of Vilnius, inter alia for building the Sudervėlė residential district, was allocated and assigned by Ordinance of the Soviet of Ministers of the Lithuanian SSR No. 87p of 22 April 1988.

 Thus, the 120-hectare plot of land (to a part whereof the restoration of the rights of ownership in kind is aspired in the case considered by the petitioner) in the Pilaitė microdistrict was assigned, attributed and used for the needs of the city of Vilnius as far back as prior to 1 June 1995.

  1. Consequently, differently from what the petitioner states, the 120-hectare plot of land (to a part whereof the restoration of the rights of ownership in kind is aspired in the case considered by the petitioner) in the Pilaitė microdistrict allocated by Item 1.3 of Government resolution No. 895 of 30 July 1999 to the Council of the City of Vilnius for use was attributed to the city of Vilnius not after 1 June 1995, but prior to that date; it means that, from the point of view of the restoration of the rights of ownership to a part of the said plot of land, the legal regulation consolidated in Paragraph 6 of Article 5 of the Law is not legally significant, since in this situation the rights of ownership to land may not be restored under Paragraph 6 of Article 5 of the Law as to land in a rural area.
  2. Taking account of the arguments set forth, one is to draw a conclusion that Item 1.3 of Government Resolution No. 895 “On Allocation of State-owned Plots of Land to the Council of the City of Vilnius for Use” of 30 July 1999 is not in conflict with Paragraph 6 of Article 5 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.
  3. It has been mentioned that in the constitutional justice case at issue it is also investigated whether Item 1.3 of Government resolution No. 895 of 30 July 1999 is not in conflict with inter alia Article 23 of the Constitution and the constitutional principle of a state under the rule of law.
  4. 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).

While formulating the official constitutional doctrine of restoration of the rights of ownership, inter alia while disclosing the requirements which arise from the Constitution and which must be heeded in the course of regulating by legal acts the relations of the rights of ownership, the Constitutional Court has held:

– 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 laws regulating restoration of the rights of ownership to the existing real property may provide that objects of property shall not be returned in kind to the persons who have the right to restoration of the rights of ownership, but are bought out by the state; the provision of laws that, in case it is impossible to return the property in kind, compensation must be allocated, is not in conflict with the principles of inviolability of property and protection of the rights of ownership, since just compensation ensures the restoration of the rights of ownership as well; 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 (Constitutional Court rulings of 20 May 2008 and 9 March 2010);

– one is allowed not 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; 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, whilst the owners are compensated under the manner and procedure specified in the law (Constitutional Court ruling of 20 May 2008).

  1. The Constitutional Court has also held 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; such legal situations are also possible, where the existing real property which is necessary for the needs of society is not returned in kind to the former owners (Constitutional Court rulings of 20 May 2008 and 2 September 2011); grounded and legitimate buying out of the objects of ownership while restoring the rights of ownership also meets the constitutional requirement of protection of legitimate expectations (Constitutional Court ruling of 20 May 2008).

It needs to be noted that, as it has been held by the Constitutional Court more than once, the protection of legitimate expectations is an inseparable element of the principle of a state under the rule of law; if the protection of legitimate expectations, legal certainty and legal security of the person were not ensured, the confidence of the person in the state and law would not be ensured (inter alia Constitutional Court rulings of 24 December 2008, 27 March 2009 and 20 April 2010).

  1. As mentioned before, the doubts of the petitioner regarding the compliance of Item 1.3 of Government resolution No. 895 of 30 July 1999 which granted the right to the Council of the City of Vilnius to use the 120-hectare plot of land (to a part whereof the restoration of the rights of ownership in kind is aspired in the case considered by the petitioner) in the Pilaitė microdistrict with Article 23 of the Constitution and the constitutional principle of a state under the rule of law are grounded upon the same arguments as its doubts regarding the compliance of the same item with Paragraph 6 of Article 5 of the Law.
  2. It has been held in this ruling that the legal regulation established by Item 1.3 of Government resolution No. 895 of 30 July 1999 is not in conflict with Paragraph 6 of Article 5 of the Law and that in the case considered by the petitioner the rights of ownership or the persons aspiring to restore the rights of ownership to a part of the 120-hectare plot of land in the Pilaitė microdistrict may not be restored by Paragraph 6 Article 5 of the Law as to land in a rural area.

Consequently, differently from what the petitioner states, the legal regulation established by Item 1.3 of Government resolution No. 895 of 30 July 1999 may not have any influence in the case considered by the petitioner upon implementation of the right of the persons to restore the rights of ownership to a part of the 120-hectare plot of land in the Pilaitė microdistrict. This Government resolution could not violate the constitutional principle of the protection of the legitimate expectations of such persons, since no such expectation arose from the provisions of Paragraph 6 of Article 5 of the Law regulating the restoration of the rights of ownership to the existing real property.

  1. Thus, there are no grounds to assert that the legal regulation consolidated in Item 1.3 of Government resolution No. 895 of 30 July 1999, which granted the right to the Council of the City of Vilnius to use the 120-hectare plot of land in the Pilaitė microdistrict, is in conflict with the principle of the protection of the rights of ownership consolidated in Article 23 of the Constitution and is not in line with the constitutional principle of a state under the rule of law.
  2. Taking account of the arguments set forth, one is to draw a conclusion that Item 1.3 of Government Resolution No. 895 “On Allocation of State-owned Plots of Land to the Council of the City of Vilnius for Use” of 30 July 1999 is not in conflict with Article 23 of the Constitution and the constitutional principle of a state under the rule of law.

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:

To recognise that Item 1.3 (Official Gazette Valstybės žinios, 1999, No. 68-2182) of Resolution of the Government of the Republic of Lithuania No. 895 “On Allocation of State-owned Plots of Land to the Council of the City of Vilnius for Use” of 30 July 1999 is not in conflict with the Constitution of the Republic of Lithuania and Paragraph 6 of Article 5 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:                                    Egidijus Bieliūnas

                                                                                                        Toma Birmontienė

                                                                                                        Gediminas Mesonis

                                                                                                        Ramutė Ruškytė

                                                                                                        Egidijus Šileikis

                                                                                                        Algirdas Taminskas

                                                                                                        Romualdas Kęstutis Urbaitis

                                                                                                        Dainius Žalimas