Lt

On the Law on Museums

Case No. 7/98

 

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

On the compliance of Paragraph 2 of Article 5 of the Republic of Lithuania’s Law on Museums with the Constitution of the Republic of Lithuania

Vilnius, 16 March 1999

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavičius, Teodora Staugaitienė, and Juozas Žilys

The court reporter—Daiva Pitrėnaitė

Darius Karvelis, a consultant to the Law Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 5 March 1999, in its public hearing, considered case No. 7/98 subsequent to the petition submitted to the Constitutional Court by the College of Civil Cases Division of the Court of Appeal of Lithuania, the petitioner, requesting an investigation into whether Paragraph 2 of Article 5 of the Republic of Lithuanian Law on Museums was in compliance with Article 23 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

By its decision of 13 May 1997, the First Vilnius City Local Court, rejected the claim of the claimant A. V. Karosienė concerning the claiming of property from unlawful possession by the others.

The Vilnius Regional Court, on considering the appeal of the claimant, by its ruling of 23 June 1997, ruled that the decision of the local court shall remain effective without alterations.

On 17 February 1998, the College of Civil Cases Division of the Court of Appeal of Lithuania was considering a civil case pursuant to the appeal by the claimant A. V. Karosienė in the said civil case. By its ruling, the court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Paragraph 2 of Article 5 of the Republic of Lithuania’s Law on Museums (Official Gazette Valstybės žinios, 1995, No. 53-1292) was in compliance with Article 23 of the Constitution.

II

The arguments of the petitioner are based on the following arguments.

The father of the claimant was convicted by the Special Conference during the years of the Soviet occupation, and his property was confiscated. On 12 October 1951, 27 pictures that had been confiscated from him were handed to the Vilnius State Art Museum. On 25 May 1989, her father was posthumously rehabilitated and his full civil rights were restored. On accepting the legacy, the claimant appealed to court claiming the 27 pictures from the Lithuanian Art Museum. The claim was rejected on the grounds of Paragraph 2 of Article 5 of the Law on Museums wherein it is provided that museum valuables comprising the fund of State museums shall be State property; the museum valuables of the said fund shall not be subject to being returned to their former owners.

In opinion of the petitioner, the aforesaid norms of the law contradict the principle of the inviolability of property and the protection of the rights of ownership as established by Article 23 of the Constitution. The right of ownership is the right of the owner to manage, use and dispose of his property at his discretion and when doing so, the owner must not violate the law nor the rights and interests of other persons. The laws do not provide for any situations or procedure of seizure of museum values. Paragraph 2 of Article 5 of the Law on Museums deny the constitutional guarantees given to private ownership, and unlawful appearance of the right of ownership for the State is consolidated therein.

III

In the course of the preparation of the case for the Constitutional Court hearing, the representative of the party concerned V. Baliūnienė presented the following counter-arguments.

Conforming to Article 42 of the Constitution by which the State shall support culture and science, and shall be concerned with the protection of Lithuanian history, art, and other cultural monuments and valuables, and taking account of the importance of the protection of movable cultural heritage, in 1995–1996, the Seimas adopted laws regulating the protection of movable valuables of culture. In 1995, the Republic of Lithuania’s Law on Archives, the Republic of Lithuania’s Law on Libraries and the Law on Museums were adopted. In 1996 the Seimas passed the Republic of Lithuania’s Law on the Basics of National Security which names cultural heritage as one of the main objects of national security. The main objective of the aforesaid laws is preservation of the accumulated movable valuables of culture for the posterity as loss of any valuable on either its destruction or its irretrievable taking away from Lithuania or loss of its cultural value is great damage for society in general.

The representative of the party concerned is of the opinion that the legislature, taking account of the public importance of movable cultural valuables and the necessity of their preservation, established by the Law on Archives and the Law on Museums that archive documents and museum valuables kept in State depositories are not subject to being returned to the former owners. This provision was based by the legislature that it is only the valuables preserved in museums are accessible to the public at large and that museums not only ensure the registration and safe-keeping of valuables of culture but they also investigate, preserve and restore them. The Seimas repeated the provision of the safe-keeping of valuables of culture in State depositories in Article 17 of the Republic of Lithuania’s Law on the Protection of Movable Valuables of Culture, Paragraph 1 whereof provides that safe-keeping and accumulation of movable valuables of culture in State depositories comprise one of the basic parts in the State protection of movable valuables of culture. In addition, the impugned provision is grounded on the fact that in Lithuania there was not a law on the restoration of the rights of ownership to movable property.

Article 23 of the Constitution contains a norm that property may only be seized for the needs of society and must be adequately compensated for. This norm is particularised by Article 163 of the Civil Code wherein it is established that in cases and procedure provided for by means of laws of the Republic of Lithuania it is permitted to seize property from the owner for the needs of society by paying him its value (requisition), as well as seize property which is not subject to recompense enforcing a sanction for violation of law. Paragraph 2 of Article 5 of the Law on Museums provides for the case when the State seizes property from the owner for the needs of society. The procedure of recompense for this property is established by the Resolution (No. 368) “On the Ownership and Personal Non-Ownership Rights as well as the Protection of Civil Honour and Dignity of Persons Whose Eviction has been Recognised Unlawful and Groundless and Who are Recognised Rehabilitated Ones” which was adopted by the Soviet of Ministers of the Lithuanian Soviet Socialist Republic on 27 December 1988.

In the opinion of the representative of the party concerned, one must take into consideration the common principles of the laws passed by the State on the restoration of the rights of ownership to real property. The law regulating the restoration of the rights of citizens to the existing real property did not provide for the unconditional returning of items of property in kind, either.

The representative of the party concerned maintains that the norm of Paragraph 2 of Article 5 of the Law on Museums does not deny the principle of inviolability and protection of the right of ownership legitimised by Article 23 of the Constitution nor does it consolidate an unlawful appearance of the right of ownership to the State. The said norm, taking account of important needs of society, merely legitimises an opportunity not to return the aforesaid valuables to the former owners in kind. In addition, the representative of the party concerned is of the opinion that one has to agree with the fact that the impugned norm of the law might be particularised (or this might be regulated by an individual law) in the course of establishing the procedure of seizure of museum valuables kept at museum depositories from the owners for the needs of society and that of recompense payment.

IV

In the course of the preparation of the case for the judicial investigation, an explanation of the specialist—Assoc. Prof. A. Taminskas, who works at the Civil Law and Civil Procedure Department of Law Faculty of Vilnius University—was received. In the opinion of the specialist, Paragraph 2 of Article 5 of the Law on Museums which may be understood as appearance of the right of public ownership on the grounds of an unlawful action of confiscation should be judged to be in conflict with Article 23 of the Constitution. In addition, valuables of culture may get into the depositories of State museums by other ways as well.

The specialist is of the opinion that the norm contained by Paragraph 4 of Article 47 of the Constitution by which the right of ownership of historical, archaeological and cultural facilities shall exclusively belong to the Republic of Lithuania may not be treated as one granting the right to the State to seize the aforesaid valuables from their owners against their will and without recompense. Other civil laws, particularising the said norm of the Constitution, establish the right for the State to control the use and disposal of valuables of culture. For instance, Article 158 of the Civil Code provides for an opportunity for the State to control the keeping of valuables of culture through respective organisations, while in certain cases to seize them against the will of the owner but the latter must be recompensed. Therefore, on the grounds of the aforesaid norm of the Constitution it is possible to give reason to seizure of historical, archaeological and cultural items for the needs of society (as well as not returning the said items to their owners) but only under the laws and by fair recompense.

V

The representative of the party concerned D. Karvelis presented these counter-arguments in the Constitutional Court hearing.

Taking account of the public significance of movable valuables of culture and the necessity to preserve them, the legislature established by the Law on Museums that the fund of State museums shall be State property and that museum valuables kept in State depositories shall not be subject to being returned to their former owners. The legislature grounded this legal provision on the fact that the valuables which are at museums may be accessible to the public at large. Not only do the museums ensure safe-keeping and registration of the accumulated valuables but also they investigate, preserve and restore them.

The Law on Museums defines the fund of museums of the Republic of Lithuania, establishes the system of museums of Lithuania, procedure of the establishment and liquidation of museums, the registration and safe-keeping of museum valuables, as well as the financing and management of museums. This law does not regulate the restoration of the rights of ownership as this is an object of special laws. The representative of the party concerned noted that until now a procedure for the restoration of the rights to the existing real property has been established, however, at present there is not any law on the returning of movable property.

The provision of Paragraph 2 of Article 5 of the Law on Museums by which museum valuables shall not be returned to their former owners means that such valuables are not subject to being returned in kind, however, this provision does not create any legal hindrances for the former owners to claim their rights of ownership to museum valuables in other ways (purchasing by the state, alternative kind, etc.).

In the opinion of the representative of the party concerned, one has to take into consideration the common principles established in laws on the restoration of the rights of ownership to the existing real property. These laws do not provide for the unconditional returning of property in kind to citizens of the Republic of Lithuanian whose real property was nationalised under the laws of the USSR (those of the Lithuanian Soviet Socialist Republic) or unlawfully seized otherwise. In case Paragraph 2 of Article 5 of the Law on Museums was ruled to be in conflict with Article 23 of the Constitution, the unconditional returning of museum valuables in kind to their former owners would be legitimised and there would arise a problem of the equality of the owners of real property and those of movable property before the law.

On the grounds of the said arguments, the representative of the party concerned asserted that Paragraph 2 of Article 5 of the Law on Museums is in compliance with Article 23 of the Constitution.

VI

The specialists G. Drėmaitė, Chairperson of the Republic of Lithuania State Commission for Monument Preservation, and G. Jucys, Head of the Group of Control of the aforesaid commission, spoke at the Constitutional Court hearing. They described actual circumstances reflecting the situation which appeared in the course of the implementation of the norms of the Law on Museums. In the opinion of the specialists, the valuables of culture accumulated at the fund of State museums should not be returned to their former owners, however, laws might regulate question of compensation for such valuables.

The Constitutional Court

holds that:

1. Paragraph 2 of Article 5 of the 8 June 1995 Law on Museums provides: “The fund of State museums shall be State property. Museum valuables of this fund shall not be subject to being returned to their former owners.”

According to the definition of the museum valuable as presented by the said law, it is a valuable item from the standpoint of archaeology, history, ethnicity, religion, monument preservation, or any other standpoint of culture or an object accumulated, kept, investigated and displayed by museums. It should be noted that under the Law on the Protection of Movable Valuables of Culture regulating the protection of movable valuables of culture belonging to either the State or private individuals, safe-keeping and accumulation of movable valuables of culture in State depositories (archives, libraries, museums) comprise one of the basic parts in State protection of movable valuables of culture. For this reason they are purchased, acquired in another fashion or accepted for safe-keeping based upon the right of deposit (Paragraph 1 of Article 17 of the Law on the Protection of Movable Valuables of Culture).

Valuables of culture accumulated in museums are accessible to the public at large. State museums not only ensure the registration and safe-keeping of the accumulated valuables but they also investigate, preserve and restore them. The Law on Museums provides for legal means of the protection of the fund of State museums designed to implement the provision of Paragraph 2 of Article 42 of the Constitution by which the State shall support culture and science, and shall be concerned with the protection of Lithuanian history, art, and other cultural monuments and valuables.

By the regulation established by Paragraph 2 of Article 5 of the Law on Museums, which is impugned by the petitioner, it is attempted to preserve the valuables of culture accumulated at the fund of State museums, therefore, the link between the impugned norm and the duty of the State to take care of cultural heritage established by Article 42 of the Constitution is evident. It needs to be noted that the Law on the Basics of National Security denotes cultural heritage as one of the main objects of national security.

2. The petitioner is of the opinion that Paragraph 2 of Article 5 of the Law on Museums providing that museum valuables kept at State museums are State property and are not subject to being returned to their former owners denies the principle of protection of private ownership established by Article 23 of the Constitution.

Article 23 of the Constitution provides:

Property shall be inviolable.

The rights of ownership shall be protected by law.

Property may only be seized for the needs of society according to the procedure established by law and must be adequately compensated for.”

Constituting a whole, these norms of the Constitution ensure the constitutional protection of property. The Constitutional Court has noted that, in the doctrine, the constitutional guarantee of property protection is, as a rule, referred to as a status quo guarantee, as it, first of all, protects persons’ property which they possess at the moment (the Constitutional Court’s ruling of 27 October 1998).

The norm of the Constitution stipulating that the rights of ownership shall be protected by law means that a legal protection of subjective rights of ownership are guaranteed. The subjective right of ownership is, as a rule, defined as a legally protected opportunity of the owner to manage, use and dispose of his property at his discretion and in his interests provided the limits established by law are not overstepped and the rights and freedoms of other persons are not impaired. However, these are not all the rights of the owner. A very important protective function belongs to such a subjective right of the owner as the right to claim one’s property from its unlawful management by the others.

3. It needs to be noted that a valuable of culture is both an object of the right of ownership and public value. It is evident that certain protection and care are needed so that the valuable of culture might persist and satisfy the needs of society as long as possible. Thus, this is a special property item for which a peculiar legal regulation is necessary. Such legal regulation may cause problems of legal compatibility of private and public interests.

Deciding the question of compliance of the impugned norms of the Law on Museums with Article 23 of the Constitution, one has to take account of the fact that the Constitution shall be an integral and directly applicable statute (Paragraph 1 of Article 6 of the Constitution). The principle of the integrity of the Constitution determines that at the junction of the values protected by the Constitution decisions ought to be found ensuring that neither of these values would be denied or unreasonably limited.

4. In the fund of State museums there are such valuables of culture which got into them during the time when Lithuania was occupied, annexed and incorporated into another state—the USSR—i.e. until 11 March 1990. The occupation government nationalised land, banks, large items of economy, as well as in other ways unlawfully seized items of private property, a great many of valuables of culture among them.

After on 11 March 1990 the Supreme Council-Reconstituent Seimas had adopted the Act on the Restoration of the Independent State of Lithuania as well as other acts of fundamental nature, the institution of private ownership was restored. However, it was actually impossible completely to restore the system of ownership relations that existed in 1940. The massive character of violations of the rights of ownership committed by the occupation government, the newly formed legal relations and other objective circumstances determined that it was impossible to protect the rights of ownership violated during the occupation years on the grounds of the norms of the Civil Code. The Constitutional Court has noted that until corresponding State institutions have not adopted a decision on the restoration of the rights of ownership under the law, persons whose property was seized during the years of occupation actually do not enjoy the subjective rights of ownership (the Constitutional Court’s ruling of 27 May 1994, etc.). Thus, a special legal regulation for the implementation of the restitution was necessary. And this is a prerogative of the legislature.

For instance, on 18 June 1991, the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” was passed. This law regulated the implementation of limited restitution. Both the said law and the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property of 1 July 1997 provide for the conditions and procedure for the restoration of the rights of ownership and establish various ways of the restoration of these rights. It needs to be noted that, even though the laws give priority to returning property in kind, however, state-purchase (for respective recompense) of the existing real property from persons whose rights of ownership are subject to restoration is provided for, too. Under the law of 1 July 1997, the State shall purchase land provided it is on the territory of State wildlife reserves, national and regional parks, that of the Curonian Spit National Park, or it has been allotted to science and education establishments, etc.; dwelling-houses (parts thereof), flats shall be purchased by the State provided they have been rearranged into non-dwelling premises and are utilised for the needs of education, health, culture and science, as well as those of foster-homes. Such legal regulation of the restoration of the rights of ownership to the existing real property shows the determination of the legislature to regulate the implementation of the restitution only by means of special laws and by taking account of the needs of society and factual economic possibilities. It should be noted that no law on the restoration of the rights of ownership to movable property has been adopted.

5. Museum valuables are an important part of national culture. In an attempt to ensure the safe-keeping of such valuables, as is demanded by the Constitution of this country, special legal regulation on the restoration of the rights of ownership to valuables of culture may be established. The aim of the norms of Paragraph 2 of Article 5 of the Law on Museums is preservation of the accumulated valuables of culture for the posterity as loss of any valuable on its destruction, not preservation of its cultural value or its irretrievable taking away from Lithuania is great damage to society.

Taking account of this as well as peculiarities of the legal regulation which have been discussed in the present ruling, the following conclusions are to be drawn: first, the legislature has not provided by law for an opportunity to restore the rights of ownership to museum valuables; second, there are grounds to regard Paragraph 2 of Article 5 of the Law on Museums as a special legal regulation establishing that the valuables of culture which are at the fund of State museums shall not be subject to being returned to their owners who lost them due to the universal nationalisation or any other unlawful seizure carried out by the occupation government.

Thus, on the grounds of the arguments set forth and taking account of the fact that no law on the restoration of the rights of ownership to museum valuables has been adopted, the conclusion should be drawn that Paragraph 2 of Article 5 of the Law on Museums, to the extent that, in case museum valuables were seized till 11 March 1990, they shall not be subject to being returned to their former owners, is in compliance with Article 23 of the Constitution.

6. Valuables of culture may get to the fund of State museums by different ways, and this determines the necessity of different legal regulation. Investigating the limits of the effect of the impugned norms of the law, one should hold that they are valid for every person who, against his will, lost valuables of culture and who attempts to claim them from the fund of State museums. Thus, Paragraph 2 of Article 5 of the Law on Museums takes account of neither the manner of acquisition of museum valuables nor the time of such acquisition. Thus, such an important factor is ignored that valuables of culture may have come into the possession of the fund of State museums after the restoration of the independent State of Lithuania.

As mentioned, upon the restoration of the independence, the institution of private ownership was reintroduced into the legal system of Lithuania, therefore, in order to protect the rights of ownership violated after 11 March 1990, the constitutional guarantees of the protection of the rights of ownership should be applied in full scope. Assessing the impugned legal regulation from this standpoint, it should be noted that it prohibits, without any reservations, returning museum valuables to their former owners. Thus, an a priori opportunity is denied to satisfy any vindicating claim regardless of respective legal facts, for example, such as recognition of a transaction on acquisition of valuables of culture as null and void etc.

It should be noted that, under Paragraph 4 of Article 47 of the Constitution, the right of ownership of cultural facilities of public significance shall exclusively belong to the Republic of Lithuania. This means that the constitutional norms do not reject an opportunity to make cultural items of national significance State property. It goes without saying, it would depend on the public significance and value of corresponding items, as well as the necessity to guarantee an opportunity of its endurance and preservation for the future generations. On the other hand, such nationalisation of valuables of culture ought to be carried out only pursuant to the requirements of Paragraph 3 of Article 23 of the Constitution.

Taking account of the arguments set forth, it should be concluded that Paragraph 2 of Article 5 of the Law on Museums, to the extent that the opportunity to protect, on the grounds of the norms of the Civil Code, the rights of ownership which were violated after 11 March 1990, is denied, contradicts Article 23 of the Constitution.

7. The Constitutional Court notes that the analysis and assessment of the legal regulation of protection of valuables of culture presented in this ruling does not cover international relations which are regulated by other acts—bilateral or multilateral treaties of states. For instance, the act of international law—the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, ratified by Lithuania on 14 January 1997—is of such nature. Article 25 of the Law on Museums provides that in cases when international agreements concluded by the Republic of Lithuania provide for different rules from those set down in this law, the rules of the international agreement shall be applicable.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 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 gives the following

ruling:

1. To recognise that Paragraph 2 of Article 5 of the Republic of Lithuania’s Law on Museums, to the extent that the museum valuables seized in the period of the occupation (till 11 March 1990) shall not be subject to being returned to their former owners, is in compliance with the Constitution of the Republic of Lithuania.

2. To recognise that Paragraph 2 of Article 5 of the Republic of Lithuania’s Law on Museums, to the extent that the right to claim valuables of culture from unlawful management by the others, when they came into the possession of the fund of State museums after 11 March 1990, is denied, contradicts Article 23 of the Constitution of the Republic of Lithuania.

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

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

Egidijus Jarašiūnas      Kęstutis Lapinskas      Zigmas Levickis

Augustinas Normantas      Vladas Pavilonis      Jonas Prapiestis

Pranas Vytautas Rasimavičius      Teodora Staugaitienė     Juozas Žilys