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On accepting a petition of the petitioner

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING TO INVESTIGATE WHETHER THE PROVISIONS OF THE REPUBLIC OF LITHUANIA LAW ON RESTORATION OF THE RIGHTS OF OWNERSHIP OF CITIZENS TO THE EXISTING REAL PROPERTY ARE NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 10 May 2012

Vilnius

 

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

with the secretary—Daiva Pitrėnaitė,

in a procedural sitting of the Constitutional Court considered the petition (No. 1B-12/2012) of a group of Members of the Seimas of the Republic of Lithuania, the petitioner, requesting “to investigate whether Paragraph 2 (wording of 16 November 2006) of Article 5 and Item 3 (wording of 2 April 2002) of Paragraph 1 of Article 12 of the Republic of Lithuania Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, insofar as they provide that the land in the territories of towns, which is used or rented by natural and legal persons, which is necessary for exploiting the buildings and structures (under construction or already built), as well as for exploiting buildings and structures (under construction or already built) in resting places, which are possessed by the said persons by right of ownership, is bought out by the state, but not returned in kind, are not in conflict with Articles 23, 29 and Paragraph 1 of Article 46 of the Constitution of the Republic of Lithuania and the constitutional principles of a state under the rule of law and justice, as well as with the Preamble (wordings of 1 July 1997 and 29 October 2002) to the Republic of Lithuania Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property”.

The Constitutional Court

has established:

A group of Members of the Seimas, the petitioner, requests to investigate whether Paragraph 2 (wording of 16 November 2006) of Article 5 and Item 3 (wording of 2 April 2002) of Paragraph 1 of Article 12 of the Republic of Lithuania Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, insofar as they provide that the land in the territories of towns, which is used or rented by natural and legal persons, which is necessary for exploiting the buildings and structures (under construction or already built), as well as for exploiting buildings and structures (under construction or already built) in resting places, which are possessed by the said persons by right of ownership, is bought out by the state, but not returned in kind, are not in conflict with Articles 23, 29 and Paragraph 1 of Article 46 of the Constitution of the Republic of Lithuania and the constitutional principles of a state under the rule of law and justice, as well as with the Preamble (wordings of 1 July 1997 and 29 October 2002) to the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

The Constitutional Court

holds that:

I

  1. The petitioner—the group of Members of the Seimas—requests investigation into the compliance of Paragraph 2 (wording of 16 November 2006) of Article 5 and Item 3 (wording of 2 April 2002) of Paragraph 1 of Article 12 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, insofar as they provide that the land in the territories of towns, which is used or rented by natural and legal persons, which is necessary for exploiting the buildings and structures (under construction or already built), as well as for exploiting buildings and structures (under construction or already built) in resting places, which are possessed by the said persons by right of ownership, is bought out by the state, but not returned in kind, inter alia with the Constitution.
  2. Paragraph 2 (wording of 16 November 2006) of Article 5 of the impugned law prescribes:

“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 giving back in kind to a citizen or citizens the vacant (non-built-up) land in the former locality by the right of common ownership, as well as to a citizen, possessing the buildings by the ownership right, a plot of land in use by this citizen the boundaries of which are defined in territorial planning documents, with the exception of the land attributed under Article 12 of this Law to the land subject to buying out by the State, as well as the land a citizen does not wish to be given back in the former locality. The area of the vacant (non-built-up) land given back in kind shall be reduced to the size of a plot of land of one hectare, provided that plots of land are designed on it, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of this Article and they may not be designed within other territories of a town due to the lack of vacant (non-built-up) land in this town. The formation of plots of land being given back in kind in vacant (non-built-up) areas of land in the former locality and the preparation of their plans shall, in accordance with the procedure and conditions set out by the Government, be organised and the plans shall be approved by the director of the municipal administration. The ownership rights to the citizens to whom the missed time limits referred to in Paragraphs 1 and 4 of Article 10 of this Law are renewed by the court’s decision, shall be restored by giving back in kind the land within the territories in which the strip system was still existent, if these citizens submitted applications for restoration of the rights of ownership as well as the documents confirming the rights of ownership and relation by blood with the owner prior to the adoption of the decision by the director of the municipal administration regarding the approval of plans of plots of land subject to be given back in kind;

2) by assigning without payment to the ownership of the citizens who have residential houses or other buildings by the right of ownership on the land possessed by the right of ownership belonging to the persons other than them, 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. The size of land returnable in kind or subject to buying-out shall be accordingly reduced by the size of plots of land in use which are transferred into the ownership without payment;

3) by assigning 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 assigned 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 assigned 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 assigned 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.”

Item 3 (wording of 2 April 2002) of Paragraph 1 of Article 12 of the impugned law provides that the land shall be bought out by the state if:

“3) it was situated prior 1 June 1995 within the territories assigned to towns under established procedure and, according to the detailed plans approved in the manner prescribed by law, is occupied by: plots of land necessary for exploitation of buildings, structures or facilities (under construction or already built); territories in which other infrastructural objects in use or new ones—the complex (energy, transport, communications, construction, education, healthcare, recreation and tourism, protection of objects of nature and cultural objects as well as waste management, national defence, civil protection, fire protection) of various fields of activities, rendering services to the economy and population, ensuring security of the State and its residents, protection of valuables of nature and culture; plots of land intended to be used for ports and their facilities, for building national railways, main pipe installations, high tension power lines, for important construction of national significance, for general purposes of the population, for public construction and recreation; for firming up points of state geodesic, gravimetric and astronomical networks; for matters related to the protection of complexes and objects of nature, archaeology and history; for exploitation and common (public) use of facilities of community economy, social, educational facilities, health resort treatment, recreational, rehabilitation facilities, facilities intended for leisure, which are necessary for fulfilment of municipal functions and the importance of which for the local community is recognised by the municipal council by its decision; for implementation of economic projects significant for the State, the national importance of which is recognised by the Seimas or the Government by a respective decision; plots of land intended to be assigned without payment to the ownership of the persons for private construction under Paragraph 2 of Article 5 of this Law, if such plots of land have already been designed on the land subject to be returned to a citizen;”

  1. The petition of the group of Members of the Seimas, the petitioner, requesting to investigate the compliance of Paragraph 2 (wording of 16 November 2006) of Article 5 and Item 3 (wording of 2 April 2002) of Paragraph 1 of Article 12 of the impugned law, to the aforementioned extent, with the Constitution is substantiated by the following arguments.

According to the petitioner, Paragraph 2 (wording of 16 November 2006) of Article 5 of the impugned law does not provide that the land (used or rented by other natural and legal persons, which is necessary for exploiting the buildings and structures (under construction or already built), as well as for exploiting buildings and structures (under construction or already built) in resting places), which are possessed by them by right of ownership) in the territories of towns must be returned to the former owners in kind, unlike the land which is, under Paragraph 11 (wording of 10 December 2009) of Article 4 and Article 12 (wording of 19 June 2010), to be returned in kind provided it is in a rural territory, and unlike the land which is, under Item 3 (wording of 2 April 2002) of Paragraph 1 of Article 12, to be returned in kind provided it is assigned to land subject to buy-out by the state in the territories of towns (assigned to such territories in a prescribed manner prior to 1 June 1995).

The petitioner doubts whether the impugned legal regulation adjusts fairly, in the maximum manner, and proportionately the rights and interests of the persons to whom the rights of ownership to land in the territory of a town are being restored and the rights and the interests of the persons who in fact use or rent this land which is necessary for exploiting the buildings and structures (under construction or already built), as well as for exploiting buildings and structures (under construction or already built) in resting places, which are possessed by the latter persons by right of ownership, whether this legal regulation does not grant an unreasonable priority for users or tenants of land by disproportionately denying, at the same time, the interests of the persons to whom the rights of ownership to land are being restored, by not ensuring the returning of the land to them and by unreasonably limiting their right to ownership.

In the opinion of the petitioner, essentially the same land, i.e. the land, which is used or rented by natural and legal persons, which is necessary for exploiting the buildings and structures (under construction or already built), as well as for exploiting buildings and structures (under construction or already built) in resting places (i.e., the land, which is returned in kind provided it is in a rural territory), only due to the fact that it is within the territory of a town but not within a rural territory, cannot become either the one necessary for the needs of society, or the one that is not allowed to be returned in kind due to the existing factual relations of land-use, thus, it cannot become the one not subject to being returned in kind. The fact that the land is in a rural territory or in the territory of a town may not be the essential circumstance determining the said different legal regulation. In case it is recognised that such land can be returned in kind in a rural territory, it should be possible to return it in kind within the territory of a town as well.

The legal regulation entrenched in Paragraph 2 (wording of 16 November 2006) of Article 5 and Item 3 (wording of 2 April 2002) of Paragraph 1 of Article 12 of the impugned law, insofar as they provide that the land in the territories of towns, which is used or rented by natural and legal persons, which is necessary for exploiting the buildings and structures (under construction or already built), as well as for exploiting buildings and structures (under construction or already built) in resting places, which are possessed by the said persons by right of ownership, is bought out by the state, but not returned in kind, creates preconditions for unreasonable different treatment of the persons seeking to restore the rights to land within a rural territory and to the same land within the territory of a town, also the priority is unreasonably granted not to the right of a person to restore the right of ownership in kind, but to the rights of use or rent of natural and legal persons. Therefore, the petitioner has faced the doubt whether such legal regulation does not deny the rights of persons and the legitimate expectations, defended by the Constitution, to restore the rights of ownership in kind within the territory of a town, whether it does not violate the constitutional principles of inviolability of property and of protection of the rights of ownership, of equality of rights of persons, a state under the rule of law and justice.

  1. The petitioner requests investigation into whether the said provisions of the law are not in conflict with inter alia the constitutional principles of a state under the rule of law and justice.

The Constitutional Court has held that an inseparable element of the content of the constitutional principle of a state under the rule of law is the constitutional principle of justice (Constitutional Court rulings of 29 November 2010, 22 December 2010 and 17 November 2011). Thus, the petition of the petitioner requesting to investigate the compliance of the impugned legal regulation with inter alia the constitutional principles of a state under the rule of law and justice is to be treated as a petition requesting to investigate the compliance of the provisions of the impugned law with inter alia the constitutional principle of a state under the rule of law.

  1. The petitioner requests investigation inter alia into the compliance of Paragraph 2 (wording of 16 November 2006) of Article 5 of the impugned law, insofar as it does not provide that the land must be returned in kind in the territories of towns, which is used or rented by natural and legal persons, which is necessary for exploiting the buildings and structures (under construction or already built), as well as for exploiting buildings and structures (under construction or already built) in resting places, which are possessed by the said persons by right of ownership, with the Constitution.

It needs to be noted that only Item 1 (wording of 16 November 2006) of Paragraph 2 of Article 5 of the impugned law prescribes the type of land, which was situated prior to 1 June 1995 within the territory that was attributed in the prescribed manner to towns, to which the rights of ownership are restored by returning it in kind. The other items of this paragraph prescribe the type of land, which was situated prior to 1 June 1995 within the territory that was attributed in the prescribed manner to towns, to which the rights of ownership are restored by assigning without payment a certain plot of land into the ownership.

Therefore, the petition of the petitioner requesting to investigate the compliance of  Paragraph 2 (wording of 16 November 2006) of Article 5 of the impugned law, in the aforesaid aspect, with the Constitution is to be treated as a petition requesting to investigate the compliance of Item 1 (wording of 16 November 2006) of Paragraph 2 of Article 5 of the impugned law, in the aforesaid aspect, with the Constitution.

  1. From the arguments presented in the petition it is clear that the petitioner doubts whether Item 1 (wording of 16 November 2006) of Paragraph 2 of Article 5 and Item 3 (wording of 2 April 2002) of Paragraph 1 of Article 12 of the impugned law are not in conflict to the Constitution only insofar as the said items provide that, in the absence of any concrete need of society, the land in the territories of towns, which is used or rented by natural and legal persons, which is necessary for exploiting the buildings and structures (under construction or already built), as well as for exploiting buildings and structures (under construction or already built) in resting places, which are possessed by the said persons by right of ownership, is bought out by the state, but not returned in kind.
  2. Thus, it needs to be held that the petition of the petitioner requesting to investigate into the compliance of Item 1 (wording of 16 November 2006) of Paragraph 2 of Article 5 and Item 3 (wording of 2 April 2002) of Paragraph 1 of Article 12 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property insofar as they provide that, in the absence of any concrete need of society, the land in the territories of towns, which is used or rented by natural and legal persons, which is necessary for exploiting the buildings and structures (under construction or already built), as well as for exploiting buildings and structures (under construction or already built) in resting places, which are possessed by the said persons by right of ownership, is bought out by the state, but not returned in kind, with Articles 23 and 29 of the Constitution and the constitutional principle of a state under the rule of law is grounded on legal reasoning, therefore, it is acceptable for consideration at the Constitutional Court.

II

  1. The petitioner requests investigation into whether the impugned legal regulation is not in conflict with inter alia Paragraph 1 of Article 46 of the Constitution, since it has faced doubts whether such legal regulation does not deny the constitutional provision that Lithuania’s economy shall be based on the right of private ownership, freedom of individual economic activity and initiative, also whether it does not limit the right of the persons (to whom the right of ownership to land is being restored) to freedom of economic activity and initiative. However, the petition contains no legal reasoning substantiating this doubt.
  2. Under Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition for the investigation of the compliance of a legal act with the Constitution, whereby one applies to the Constitutional Court, must contain the position of the petitioner concerning the compliance of an appropriate act with the Constitution and legal support of such position containing reference to laws. While construing this provision of the Law on the Constitutional Court, the Constitutional Court has held more than once that the position of the petitioner concerning the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must be indicated clearly and unambiguously, the petition must contain the arguments and reasoning grounding the doubt of the petitioner that the legal act (part thereof) is in conflict with the Constitution. Otherwise, the request to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must be considered to be not in line with the requirements of Article 66 of the Law on the Constitutional Court (Constitutional Court decision of 16 April 2004, ruling of 12 December 2005, decision of 14 March 2006 and decisions of 29 March 2006, 19 March 2010, 5 March 2012 and 25 April 2012).
  3. It needs to be noted that Paragraph 1 of Article 46 of the Constitution prescribes: “Lithuania’s economy shall be based on the right of private ownership, freedom of individual economic activity and initiative.” This provision of the Constitution defines the constitutional values upon which the Lithuanian economy is based: private ownership, freedom of individual economic activity and initiative (Constitutional Court rulings of 2 April 2001 and 14 March 2002). In its petition the petitioner has not assessed the fact that Paragraph 2 (wording of 16 November 2006) of Article 5 and Item 3 (wording of 2 April 2002) of Paragraph 1 of Article 12 of the impugned law regulate the relations of restoration of citizens’ rights to the existing real property, i.e., the relations different from those the grounds of which are entrenched in Paragraph 1 of Article 46 of the Constitution.

Thus, the petition of the petitioner requesting to investigate the compliance of the impugned legal regulation with Paragraph 1 of Article 46 of the Constitution does not comply with the requirements of Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, therefore, under Article 70 of this law, is to be returned to the petitioner. The return of a petition shall not take away the right to apply to the Constitutional Court according to the common procedure after removal of the deficiencies thereof.

III

  1. The petitioner requests investigation into whether the impugned legal regulation entrenched in the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property is not in conflict with inter alia the Preamble to this law.
  2. According to Paragraph 1 of Article 102 and Paragraph 1 of Article 105 of the Constitution, the Constitutional Court considers whether the laws and other acts of the Seimas are not in conflict with the Constitution.

In its acts the Constitutional Court has held more than once that, under the Constitution, it does not decide the issues of compliance between legal acts of the same legal power and the compliance of norms of a law with the general provisions of the same law, nor does it decide the issues of compatibility or rivalry between legal acts of the same legal power. The petition requesting to investigate the compliance of a legal act with a legal act of the same legal power, also the compliance of norms of a law with the general norms of the same law, and to decide the issue of compatibility and rivalry of legal acts of the same legal power is not within the jurisdiction of the Constitutional Court, therefore, under Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, this is the grounds to refuse to consider it.

  1. Taking account of the arguments set forth, one is to refuse to consider the petition of the petitioner requesting to investigate whether the aforesaid provisions of the impugned law are not in conflict with the Preamble to this law.

Conforming to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraphs 3 and 4 of Article 22, Article 28, Item 2 of Paragraph 1 and Paragraph 2 of Article 69 and Article 70 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

decision:

  1. To accept the petition of a group of Members of the Seimas of the Republic of Lithuania, the petitioner, requesting to investigate whether Item 1 (wording of 16 November 2006) of Paragraph 2 of Article 5 and Item 3 (wording of 2 April 2002) of Paragraph 1 of Article 12 of the Republic of Lithuania Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property insofar as they provide that, in the absence of any concrete need of society, the land in the territories of towns, which is used or rented by natural and legal persons, which is necessary for exploiting the buildings and structures (under construction or already built), as well as for exploiting buildings and structures (under construction or already built) in resting places, which are possessed by the said persons by right of ownership, is bought out by the state, but not returned in kind, are not in conflict with Articles 23 and 29 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.
  2. To return the petition, requesting to investigate whether Paragraph 2 (wording of 16 November 2006) of Article 5 and Item 3 (wording of 2 April 2002) of Paragraph 1 of Article 12 of the Republic of Lithuania Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property insofar as they provide that the land in the territories of towns, which is used or rented by natural and legal persons, which is necessary for exploiting the buildings and structures (under construction or already built), as well as for exploiting buildings and structures (under construction or already built) in resting places, which are possessed by the said persons by right of ownership, is bought out by the state, but not returned in kind, are not in conflict with Paragraph 1 of Article 46 of the Constitution of the Republic of Lithuania, back to a group of Members of the Seimas of the Republic of Lithuania, the petitioner.
  3. To refuse to consider the petition of the petitioner—a group of Members of the Seimas—requesting to investigate whether Paragraph 2 (wording of 16 November 2006) of Article 5 and Item 3 (wording of 2 April 2002) of Paragraph 1 of Article 12 of the Republic of Lithuania Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, insofar as they provide that the land in the territories of towns, which is used or rented by natural and legal persons, which is necessary for exploiting the buildings and structures (under construction or already built), as well as for exploiting buildings and structures (under construction or already built) in resting places, which are possessed by the said persons by right of ownership, is bought out by the state, but not returned in kind, are not in conflict with the Preamble (wordings of 1 July 1997 and 29 October 2002) to the Republic of Lithuania Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

This decision of the Constitutional Court is final and not subject to appeal.

The decision is promulgated in the name of the Republic of Lithuania.

Justices of the Constitutional Court:                                    Egidijus Bieliūnas

                                                                                                        Toma Birmontienė

                                                                                                        Pranas Kuconis

                                                                                                        Gediminas Mesonis

                                                                                                        Ramutė Ruškytė

                                                                                                        Egidijus Šileikis

                                                                                                        Algirdas Taminskas

                                                                                                        Romualdas Kęstutis Urbaitis

                                                                                                        Dainius Žalimas