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On the House of Artists of Lithuania

Case No. 10/02

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF THE REPUBLIC OF LITHUANIA’S LAW “ON THE PROCEDURE OF THE REORGANISATION AND LIQUIDATION OF ESTABLISHMENTS OF CULTURE” (WORDING OF 13 JUNE 1995) AND ITEMS 1, 2.3 AND 2.4 OF THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 1320) “ON THE HOUSE OF SIGNATORIES TO THE ACT OF INDEPENDENCE OF LITHUANIA AND THE HOUSE OF ARTISTS OF LITHUANIA” OF 28 NOVEMBER 1997 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

8 July 2005

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Marytė Bagdonavičienė, the chief expert at the Legal Department of the Office of the Seimas, acting as the representative of the Seimas of the Republic of Lithuania, a party concerned

Sigutė Pučienė, the Head of Law and Personnel Division at the Ministry of Culture of the Republic of Lithuania, acting as the representative of the Government of the Republic of Lithuania, a party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 7 June 2005, in its public hearing, considered case No. 10/02 subsequent to the petition of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether the Republic of Lithuania’s Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) is not in conflict with Paragraph 2 of Article 120 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of Article 6 of the European Charter of Local Self-Government, as well as whether Item 2.4 of the Resolution of the Government of the Republic of Lithuania (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 is not in conflict with Paragraph 2 of Article 120 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of Article 6 of the European Charter of Local Self-Government, as well as Item 4 of Paragraph 1 of Article 4 and Item 13 of Paragraph 1 of Article 6 of the Republic of Lithuania’s Law on Local Self-Government.

The Constitutional Court

has established:

I

1. On 28 October 1993, the Seimas adopted the Republic of Lithuania’s Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (Official Gazette Valstybės žinios, 1993, No. 59-1143).

On 13 June 1995, the Seimas adopted the Republic of Lithuania’s Law “On Amending the Republic of Lithuania’s Law ‘On the Procedure of the Reorganisation and Liquidation of Establishments of Culture’” (Official Gazette Valstybės žinios, 1995, No. 53-1302).

2. On 28 November 1997, the Government adopted the Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” (Official Gazette Valstybės žinios, 1997, No. 111-2807).

3. The Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) is not in conflict with Paragraph 2 of Article 120 of the Constitution, Paragraph 1 of Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of Article 6 of the European Charter of Local Self-Government, as well as whether Item 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 is not in conflict with Paragraph 2 of Article 120 of the Constitution, Paragraph 1 of Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of Article 6 of the European Charter of Local Self-Government, as well as Item 4 of Paragraph 1 of Article 4 and Item 13 of Paragraph 1 of Article 6 of the Law on Local Self-Government.

II

The petition of the petitioner is based on the following arguments.

It was established in the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) that establishments of culture that belong to the sphere of regulation of municipal councils may be reorganised or liquidated only upon receipt of written consent by the Ministry of Culture of the Republic of Lithuania.

By Item 1 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 the Ministry of Culture was obligated to transfer, by 1 January 1998, the functions of founder of the House of Artists of Lithuania to the Vilnius City Municipality, and by Item 2.4 of this resolution the Vilnius City Municipality was commissioned with the task, while discharging the functions of founder of the House of Artists of Lithuania, not to change the purpose of the House, type of its activity and its status, and to document this in a trilateral agreement on cooperation between the Vilnius City Board, the Ministry of Culture and the House of Artists of Lithuania.

It is established in Article 120 of the Constitution that the state shall support municipalities (Paragraph 1); municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws (Paragraph 2).

According to Item 4 (wording of 12 October 2000) of Paragraph 1 of Article 4 of the Law on Local Self-Government, one of the principles on which local self-government is based is freedom and independence of the activities of municipal institutions when they, while implementing laws, other legal acts and obligations to the community, adopt decisions. In Article 6 of the Law on Local Self-Government one established independent functions of municipalities and in Item 13 (wording of 12 October 2000) of Paragraph 1 of this article one prescribed that they are assigned with other independent functions that are not assigned to state institutions.

In Paragraph 1 of Article 3 of the European Charter of Local Self-Government local self-government is defined as the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population. Pursuant to Paragraph 2 of Article 4 of the aforementioned charter, local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other power; it is established in Paragraph 5 of Article 4 thereof that where powers are delegated to them by a central or regional power, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions. In Paragraph 1 of Article 6 of the European Charter of Local Self-Government local authorities are granted the right to determine independently their own internal administrative structures in order to adapt them to local needs and ensure effective possession.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations of the representative of the Seimas, a party concerned, who was E. Mušinskis, a senior consultant at the Legal Department of the Office of the Seimas, the representative of the Seimas, a party concerned, M. Bagdonavičienė, and the representative of the Government, a party concerned, who was S. Pučienė.

1. E. Mušinskis and M. Bagdonavičienė state that the principle of co-ordination of interests of municipalities and the state is consolidated in the Constitution. It is consolidated in Article 4 of the Law on Local Self-Government as well.

According to the representatives of the Seimas, a party concerned, in Lithuania, the model of administrative supervision over the activity of municipalities has been formed where municipalities are supervised by the executive power of the state. In Paragraph 2 of Article 123 of the Constitution one has entrenched the institute of supervision of administrative activity of municipalities. The legislature enjoys the right to establish various legal means by which institutions of central power are empowered to supervise the activity of municipal institutions. The representatives of the Seimas, a party concerned, believe that the duty, established in the impugned law, of municipal councils to obtain a written consent of the Ministry of Culture concerning reorganisation or liquidation of establishments of culture that belong to the sphere of regulation by municipalities is one of the forms of implementation of the principle of co-ordination of interests of the state and municipalities.

Alongside, the representatives of the Seimas, a party concerned, note that the provision of Paragraph 2 of Article 120 of the Constitution that municipalities shall act freely and independently is linked to the provision of this paragraph that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws. E. Mušinskis and M. Bagdonavičienė indicate that an analogous provision is consolidated in Paragraph 1 of Article 3 and Paragraph 2 of Article 4 of the European Charter of Local Self-Government as well.

According to E. Mušinskis and M. Bagdonavičienė, the Ministry of Culture within its competence performs the functions of state administration in the area of culture which is assigned to it by law and other legal act, and implements state policy in this sphere. According to the representatives of the Seimas, institutions of the executive which implement the established state policy in any area in the whole territory of the state, should have an opportunity to control and coordinate the execution of provisions of this policy in the whole territory of the state, thus, in all municipalities as well. The coordination of relations between the Ministry of Culture and municipal councils when reorganising or liquidating municipal establishments of culture is an important condition of even and efficient implementation of state policy of culture, while taking account of social and cultural situation in the territory of each municipality, cultural needs of local community, capabilities of the state and other conditions.

In the opinion of the representatives of the Seimas, a party concerned, by the impugned regulation which is established in the law one does not revoke the actual right of municipalities to reorganise or liquidate the establishments of culture: the entrenched therein duty of municipal councils to obtain written consent of the Ministry of Culture should be considered not a limitation on the right of municipal councils, related to reorganisation or liquidation of establishments of culture that were established by them, but rather a co-ordination of joint actions of the state and municipalities when striving for the social objectives that are important to the state. According to the representative of the Seimas, a party concerned, the provisions of the impugned law do not limit the competence of municipalities which is set in the Constitution and which comprises also the right of municipal councils to reorganise or liquidate municipal establishments of culture and do not deny the guarantees of judicial defence of municipal rights, as pursuant to Article 122 of the Constitution municipal councils have the right to apply at any moment to court regarding the violation of their rights upon the procedure established in laws.

Therefore, the representatives of the Seimas, a party concerned, believe that the duty of municipal councils, which is established in the impugned law, to obtain written consent of the Ministry of Culture concerning reorganisation or liquidation of establishments of culture that belong to the sphere of regulation by municipalities is not in conflict with Paragraph 2 of Article 120 of the Constitution.

2. S. Pučienė, the representative of the Government, a party concerned, states that in the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” that was effective till 26 October 2004 one established the procedure of reorganisation or liquidation of establishments of culture, but did not deprive municipal institutions of the right to reorganise or liquidate establishments of culture.

S. Pučienė pointed out that the Vilnius City Municipality decided to liquidate the House of Artists of Lithuania, a budgetary establishment, without addressing the Ministry of Culture concerning this issue. However, in her opinion, this does not mean that the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 is in conflict with Paragraph 2 of Article 120 of the Constitution, Paragraph 1 of Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of Article 6 of the European Charter of Local Self-Government, as well as Item 4 of Paragraph 1 of Article 4 and Item 13 of Paragraph 1 of Article 6 of the Law on Local Self-Government.

IV

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations of R. Dovydėnienė, the Minister of Culture of the Republic of Lithuania, A. Zuokas, Mayor of the Vilnius City Municipality, Assoc. Prof. Dr. E. Šileikis who works at the Constitutional and Administrative Law Department of the Faculty of Law of Vilnius University, Dr. A. Gazarian, Director of the Centre of Investigation of Self-Government Problems, and S. Šiupšinskas, Director of the Lithuanian Association of Municipalities, were received.

V

At the Constitutional Court’s hearing the representative of the Seimas, a party concerned, who was M. Bagdonavičienė and the representative of the Government, a party concerned, who was S. Pučienė, virtually reiterated the arguments set forth in their written explanations and submitted additional explanations.

At the Constitutional Court’s hearing the witnesses, who were V. Klimantavičius, the Director of Administration of the Vilnius City Municipality, and J. Elzbergas, Director of Law and Personnel Department of the Vilnius City Municipality, were questioned.

The Constitutional Court

holds that:

I

1. The Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) is not in conflict with Paragraph 2 of Article 120 of the Constitution, Paragraph 1 of Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of Article 6 of the European Charter of Local Self-Government, as well as whether Item 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 is not in conflict with Paragraph 2 of Article 120 of the Constitution, Paragraph 1 of Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of Article 6 of the European Charter of Local Self-Government, as well as Item 4 of Paragraph 1 of Article 4 and Item 13 of Paragraph 1 of Article 6 of the Law on Local Self-Government.

2. On 15 October 1985, the Council of Europe adopted the European Charter of Local Self-Government; it became effective on 1 September 1988. The Seimas ratified this charter by Article 1 of the Republic of Lithuania’s Law “On Ratification of the European Charter of Local Self-Government” that was adopted on 25 May 1999.

In its decision of 25 April 2002, the Constitutional Court held that pursuant to the Constitution the Constitutional Court does not investigate the compliance of a law with a legal act which has the force of a law, and it decided to refuse to investigate the petition of the Vilnius Regional Administrative Court wherein it requests an investigation into whether the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) was not in conflict with Paragraph 1 of Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of Article 6 of the European Charter of Local Self-Government. By the aforementioned decision, the Constitutional Court decided to accept for consideration the petition of the Vilnius Regional Administrative Court wherein it requests an investigation into whether the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) was not in conflict with Paragraph 2 of Article 120 of the Constitution, and whether Item 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 was not in conflict with Paragraph 2 of Article 120 of the Constitution, Paragraph 1 of Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of Article 6 of the European Charter of Local Self-Government, as well as Item 4 of Paragraph 1 of Article 4 and Item 13 of Paragraph 1 of Article 6 of the Law on Local Self-Government.

3. The petitioner requests an investigation into whether the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995), which is set forth as follows: “To stipulate that establishments of culture that belong to the sphere of administration of municipal councils may be reorganised or liquidated only upon receipt of written consent by the Ministry of Culture of the Republic of Lithuania” is not in Conflict with the Constitution.

4. On 12 October 2004, the Seimas adopted the Republic of Lithuania’s Law on Recognising the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” and the Law which Substituted the Latter as No Longer Effective, by which it recognised the Republic of Lithuania’s Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (which was adopted on 28 October 1993) and the Republic of Lithuania’s Law “On Amending the Republic of Lithuania’s Law ‘On the Procedure of the Reorganisation and Liquidation of Establishments of Culture’” (which was adopted on 13 June 1995) that became effective on 26 October 2004 as no longer effective.

Thus, the impugned Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) is not effective at the time of the consideration of the constitutional justice case at issue.

5. According to Paragraph 4 of Article 69 of the Law on the Constitutional Court, the annulment of the impugned legal act shall be grounds to adopt a decision to dismiss the initiated legal proceedings. In its rulings the Constitutional Court has held more than once that, according to the Constitution, in the cases where the Constitutional Court is addressed by a court which considers a case and which has doubts concerning the compliance of a law applicable in that particular case with the Constitution or laws, the Constitutional Court has the duty to consider the petition of the court irrespective of the fact whether the impugned law or other legal act is in force or not.

6. The petitioner requests an investigation into whether Item 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 is not in conflict with the Constitution and laws.

This government resolution provides:

The Government of the Republic of Lithuania resolves:

1. To obligate the Ministry of Culture to transfer, by 1 January 1998, the functions of founder of the House of Artists of Lithuania to the Vilnius City Municipality.

2. To assign to the Vilnius City Municipality the following tasks:

2.1. by 1 January 1998, to transfer to the Ministry of Culture the functions of founder of the House of Signatories to the Act of Independence of Lithuania;

2.2. to transfer the building located at Pilies St. 26, Vilnius, area of 1234,16 sq. m., of the House of Signatories to the Act of Independence of Lithuania, which is possessed by the Vilnius City Municipality under the right of trust, to the Ministry of Culture for possession and use as state-owned property under the right of trust after the repair and restoration of this building are finished after the state commission has adopted it for use;

2.3. by 1 January 1998, to take over from the House of Artists of Lithuania the house located at Didžioji St. 31, Vilnius for possession and use as state-owned property under the right of trust;

2.4. when performing the functions of founder of the House of Artists of Lithuania, not to change the purpose of the House, nor the type of its activity and status, and to document this in a trilateral agreement on cooperation between the Vilnius City Board, the Ministry of Culture and the House of Artists of Lithuania.”

7. It should be noted that the impugned Item 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 regulates the relations linked to the House of Artists of Lithuania and it is inseparably related to Items 1 and 2.3 of this government resolution. Therefore, the investigation into the compliance of Item 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 with the Constitution and laws is inseparable from the investigation into the compliance of Items 1 and 2.3 of this government resolution with the Constitution and laws.

II

1. The petitioner has doubts as to whether the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) is not in conflict with Paragraph 2 of Article 120 of the Constitution wherein it is prescribed that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws. Moreover, the petitioner had doubts as to whether the provision “To assign to the Vilnius City Municipality the following tasks: <…> 2.4. when performing the functions of founder of the House of Artists of Lithuania, not to change the purpose of the House, nor the type of its activity and status, and to document this in a trilateral agreement on cooperation between the Vilnius City Board, the Ministry of Culture and the House of Artists of Lithuania” of Item 2 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 is not in conflict with, inter alia, Paragraph 2 of Article 120 of the Constitution.

2. The content of the indicated by the petitioner provision of Paragraph 2 of Article 120 of the Constitution that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws, may not be construed separately from other provisions of the Constitution, which consolidate the constitutional concept of local self-government, inter alia, the functioning of local self-government as a system of public power, as well as constitutional bases of relations between local self-government and state administration. The majority of these provisions are set forth in Chapter X “Local Self-Government and Administration” of the Constitution (Articles 119-124).

In its ruling of 24 December 2002, the Constitutional Court held that, under the Constitution, certain functions are vested exceptionally in the municipalities (respective competence of municipalities is directly entrenched in the Constitution); moreover, municipalities may be assigned also with commission of certain functions of the state by law. In this regard, the concept “functions of municipality” is a generalising one; it comprises all functions performed by municipalities according to the Constitution and laws, including those that are performed by municipalities due to the fact that pursuant to the Constitution these functions are assigned exceptionally to them, and those the performance of which must be guaranteed by the state, but which are performed, under laws, through municipalities or with certain participation of municipalities to (institutions or officials of) which respective competence (empowerments) is assigned. Thus, in the cases of constitutional justice, when deciding whether the law-established legal regulation by which the performance of certain functions is transferred to municipalities is not in conflict with Paragraph 2 of Article 120 of the Constitution, as well as whether the legal regulation, established in laws and/or substatutory legal acts of the Government, by which municipalities (their institutions or officials) are assigned with certain competence (empowerments) which is needed in order to perform the functions transferred to municipalities is not in conflict with Paragraph 2 of Article 120 of the Constitution, one must take account of the norms of the Constitution and the principles of the Constitution, which establish constitutional bases of legal regulation of respective public relations, and interrelations of these norms and principles with provisions of the Constitution that entrench the constitutional concept of local self-government. In the constitutional justice case at issue, when deciding whether the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) and Items 1, 2.3 and 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 are not in conflict with Paragraph 2 of Article 120 of the Constitution, one should take account of the provisions of Article 42 of the Constitution which consolidate, inter alia, freedom of culture as well as constitutional bases of state support to culture and protection of cultural monuments and valuables, the provisions of Articles 23, 47 and 128 of the Constitution which consolidate the constitutional bases of relations of ownership in the Republic of Lithuania, as well as interrelations of respective provisions of Articles 23, 42, 47 ad 128 of the Constitution with the indicated by the petitioner provision of Paragraph 2 of Article 120 of the Constitution that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws, as well as other provisions of the Constitution that consolidate the constitutional concept of local self-government.

3. The Constitutional Court, when construing Paragraph 2 of Article 120 of the Constitution in the context of other provisions of the Constitution (inter alia, those that consolidate the constitutional concept of local self-government), has held in its rulings that governance of the state and local self-government are two systems of public power which are established in the Constitution. They are not identical. In the Constitution local self-government is consolidated as a local system of public administration, which acts on the basis of self-activity and is not under direct jurisdiction of institutions of state power: self-administration and self-activity of territorial communities of established in laws administrative units, as per competence which is defined in the Constitution and laws. Local self-government is power of territorial communities of administrative units, which is formed and which functions on the constitutional bases other than those of state power. Each above-mentioned system of public power performs functions that are characteristic of the particular system only. On the other hand, a self-governing territorial community constitutes a part of the whole community of the state—the civil Nation—therefore, the public interest of municipalities—territorial communities—may not be confronted with the public interest of the community of the entire state, which must be ensured by state institutions within their competence as well. An interrelation exists between administration of the state and local self-government, which manifests itself, inter alia, in the fact that centralised governance of the state in territorial administrative units is combined with de-centralisation, in the fact that one consolidates in laws the cooperation of institutions of central power and municipalities, in the fact that the state supports municipalities in various ways and forms, as well as the fact that the state, upon the forms established by law, supervises the activity of municipalities and coordinates joint actions of the state and municipalities, when important social objectives are being sought (the Constitutional Court’s rulings of 18 February 1998, 13 June 2000, 28 June 2001, 14 January 2002, 24 December 2002, 30 May 2003, and 13 December 2004).

In its rulings the Constitutional Court has held also more than once that the provision of Paragraph 2 of Article 120 of the Constitution that municipalities shall act freely and independently within their competence, which shall be established by the Constitution and laws, is the guarantee of participation of local communities in administration of respective territories.

4. It was mentioned that pursuant to the Constitution certain functions are vested exceptionally in municipalities, moreover, one may transfer, by law, certain functions of the state to be performed by municipalities as well. It should be noted that the possibility which originates from the Constitution to transfer by law certain functions of the state to be performed by municipalities means also that the aforementioned functions may be assigned by law to be performed by municipalities on the full-scale or only to a certain extent. In the latter case one must especially stress the requirement of clarity of legal regulation which originates from the Constitution: legal regulation which is established by law must be such where it is clear to what extent do municipalities perform a particular function, and to what extent the performance of this function is left to the state.

In the context of the constitutional justice case at issue it should be held that the performance of certain functions of the state, speaking objectively, may not, to a certain extent, be not transferred to municipalities, as, without doing so, one could not guarantee an effective performance of such functions.

It should be stressed that according to the Constitution functions of municipalities may be established only by law; it may not be done by substatutory legal act.

In the area of legal regulation of relation of local self-government, the legislature enjoys a broad discretion. This discretion comprises not only the right of the legislature to establish by means of a law as to which functions (full-scope or a certain extent of them) are transferred to municipalities, but to differentiate these functions, inter alia, according to freedom of decision-making and, on this basis, to set the types of functions that are transferred to municipalities as well. The level of self-dependence of municipalities when performing various functions that are established by law may differ: when performing some functions municipalities may enjoy more self-dependence, meanwhile, when performing other functions, freedom of activity of municipalities is restricted by respective decisions of the state institutions and/or officials (the Constitutional Court’s ruling of 24 December 2002).

It should be stressed also that when establishing the functions of municipalities and their types, the legislature must pay heed to the self-dependence of municipalities and freedom of their activity within the competence established by the Constitution and laws, the principles of co-ordination of interests of municipalities and the state, as well as the constitutional concept of local self-government.

In this context, it should be noted that, as already held by the Constitutional Court in its rulings of 24 December 2002 and 13 December 2004, the constitutional provision that municipalities act freely and independently within their competence, which shall be established by the Constitution and laws means also that in case certain functions are assigned to municipalities by the Constitution or laws, so the municipalities perform them (both the ones, that are performed by them due to the fact that these functions, pursuant to the Constitution, are assigned exceptionally to municipalities, and the ones the performance of which, according to the Constitution, must be guaranteed by the state, but which are performed, in order to guarantee, inter alia, a more efficient interaction between state power and citizens, as well as democracy of administration, all of them or some of them to a certain extent are transferred by law to be performed by municipalities), to the extent that they are assigned to the latter. However, none of these functions means absolute independence of municipalities in respective area; they are all regulated by law.

5. The Constitutional Court has held that one may not assign any functions to institutions of self-government, which they are not able to perform (the Constitutional Court’s ruling of 14 January 2002), and that in case the functions of the state are transferred by law to municipalities, as well as in case laws and other legal acts create duties of municipalities, funds needed for performance of these functions (fulfilment of duties) must be allocated as well (the Constitutional Court’s ruling of 24 December 2002). It was held in the Constitutional Court’s rulings of 14 January 2002, 24 December 2002, and 13 December 2003 that, according to the Constitution, municipalities must execute laws, including the laws by which municipalities are obligated to perform functions of the state that are assigned to them, and that funds, which are needed in order to ensure the fully-fledged functioning of self-government and performance of municipal functions, must be provided for in the state budget. It should be held that from the Constitution (inter alia, the provision of Paragraph 1 of Article 120 of the Constitution that the State shall support municipalities) stems a duty of the legislature to establish by law such legal regulation, where, having taken account of resources of the state and society, material and financial capabilities, as well as other important factors, funding for municipal functions might be guaranteed. On the other hand, the constitutional duty of the legislature to establish such legal regulation where, having taken account of resources of the state and society, material and financial capabilities, as well as other important factors, funding for municipal functions might be guaranteed, does not deny the duty of municipalities (their institutions or officials) to adopt decisions, within the competence established by the Constitution and laws, to collect funds needed for performing their functions and to use these funds in a due way; the aforesaid constitutional duty of the legislature does not deny the responsibility of municipalities (their institutions or officials) for the proper performance of the functions transferred to them. In this context it should be noted that according to the Constitution municipalities draft and confirm their budget (Paragraph 1 of Article 121 of the Constitution), that municipal budgets are independent (Paragraph 1 of Article 127), as well as that municipal councils have the right to establish local levies within the limits and in accordance with the procedure provided for by law, moreover, municipal councils may provide for preferences with respect to taxes and levies at the expense of their own budget (Paragraph 2 of Article 121 of the Constitution).

It should be noted that according to the Constitution no legal regulation, where, having established by law certain functions of municipalities, municipal institutions and/or officials through which these functions should be performed have no respective competence (empowerments), may exist. Otherwise, one would have to hold that the functions which were transferred to municipalities by law are the ones which municipalities are not able to perform.

6. The public interest which must be guaranteed by local self-government as well, as one of the systems of public power provided for in the Constitution, as well as particular tasks that are faced within a particular period by the whole society, the state and territorial communities, are dynamic and they are subject to change. Therefore, the legislature may, and, in certain cases, it even must, change by law (expand, narrow or correct it otherwise) the scope and content of functions that are transferred to municipalities, transfer new functions, which previously were not performed, to be performed by municipalities and/or stipulate that municipalities cease to perform certain functions, which were performed earlier; the legislature may, and in certain cases even must, also respectively correct the competence (empowerments) of municipalities (their institutions or officials), which is needed in order to perform the functions transferred to municipalities. When doing so the legislature must pay heed to the norms and principles of the Constitution, inter alia, the imperative which originates from the Constitution to establish by law such legal regulation, where, having taken into account the resources of the state and society, material and financial capabilities, and other important factors, the funding for the municipal functions is ensured; moreover, in case the scope of functions transferred to municipalities is being changed (expanded, narrowed or corrected otherwise), the legislature may, and in certain cases even must, respectively correct (increase or reduce) the funding for municipal functions. It should be noted in this context that, as already held in the Constitutional Court’s rulings of 14 January 2002, 24 December 2002, and 13 December 2004, in case additional functions of the state are transferred (other duties are assigned) to municipalities prior to the end of the budgetary year, the funds must be allocated for implementation of the latter as well.

It should especially be stressed that pursuant to the Constitution it is only by law how one may change (expand, narrow or correct otherwise) the scope and content of functions transferred to municipalities, transfer new functions, which were previously not performed, to be performed by municipalities and/or stipulate that municipalities cease to perform certain functions, which were performed earlier; this may not be done by substatutory legal act.

7. Municipalities perform all their functions (including those that are performed, as according to the Constitution they are vested solely in municipalities, and those the performance of which must be guaranteed by the state, however, in order to ensure, inter alia, a more efficient interaction between state power and citizens, as well as democracy of governance, they all or to a certain extent are transferred by law to be performed by municipalities) and implement their competence (empowerments) through institutions of self-government—municipal councils—the members of which have the mandate of territorial community, as well as through executive bodies that are established by and accountable to municipal councils and other institutions accountable to municipal councils (municipal establishments or enterprises). In its rulings of 24 December 2002, 17 March 2003, and 13 December 2004, the Constitutional Court held that municipal institutions are established in order to implement the interests of municipality, and to directly implement laws, resolutions of the Government and decisions of the municipal council; thus, pursuant to the Constitution, municipal councils, executive bodies that are accountable to them, and other institutions established by municipal councils should be considered municipal institutions as well. The concept “municipal institutions” expresses the subordination of respective institutions to respective municipality.

In this context, it should be mentioned that the Constitution directly consolidates the bases and procedure of forming (electing) self-government institutions, the municipal councils (Paragraph 2 of Article 119 of the Constitution); moreover, the Constitution expressis verbis requires that municipal councils establish executive bodies accountable to them (Paragraph 4 of Article 119 of the Constitution). In its ruling of 13 December 2004, the Constitutional Court held that in the established cases municipal councils (representative institutions) and executive bodies accountable to them (executive institutions) are granted authoritative empowerments, and that such municipal institutions are institutions of municipal power and public administration.

It should be stressed that municipal councils, i.e. institutions through which the right of self-government of territorial communities is implemented, according to the Constitution have the right to establish various institutions accountable to them—municipal establishments, enterprises—that are needed in order to perform functions transferred to municipalities, and in cases provided for by law they must establish such institutions (municipal establishments or enterprises). Paragraph 2 of Article 120 of the Constitution, wherein it is prescribed that municipalities act freely and independently within their competence, which shall be established by the Constitution and laws, and Paragraph 3 of Article 119 of the Constitution, wherein it is established, inter alia, that the procedure of activity of self-government institutions is established by law, imply also that the legislature has the duty to set by law the procedure of establishment of municipal establishments or enterprises, and municipal councils must establish municipal establishments or enterprises according to the requirements set in laws.

In the context of the case at issue, it should be noted that the legislature, while paying heed to the Constitution, may establish by law certain conditions and/or procedures, which must be followed by municipalities when implementing their rights of the founder of the establishments or enterprises founded by them, and one may establish also by law other limitations which to a certain extent restrict the rights of municipalities as founders of respective establishments or enterprises.

In its decision of 11 February 2004, the Constitutional Court held: if the laws provide that certain relations connected with the procedure (procedures) of implementation of requirements of laws, thus, also the requirements of the laws whereby municipal functions are established, are regulated by the Government, then the Government must do so; such legal regulation established by the Government is obligatory to municipal institutions as well; if it is established in the laws that certain relations connected with the procedure (procedures) of the implementation of laws, thus, also the laws establishing municipal functions, are regulated by an institution empowered by the Government (for example, a ministry), then the Government has a duty to establish, by means of a resolution, which state institutions have to do so, while the latter institution (its head) must issue a respective legal act; such legal regulation established by the institution (its head) empowered by the Government is obligatory to municipal institutions as well; if it is established in the laws that certain relations connected with the procedure (procedures) of the implementation of laws, thus, also the laws establishing municipal functions, are regulated by a ministry (minister) or another state institution (its head), then this ministry (minister) or another state institution (its head) must issue a corresponding legal act, and the legal regulation established by this ministry (minister) or other state institution (its head) is obligatory to municipal institutions as well; however, these government resolutions, substatutory legal acts issued by ministries (ministers) or other state institutions (their heads) cannot change or distort the legal regulation established in laws, these substatutory legal acts cannot establish any such legal regulation which would compete with that established in laws.

In this context, it should be noted that according to Article 122 of the Constitution municipal councils may apply to court regarding violation of their rights.

The right of municipal councils which originates from the Constitution and laws, to establish various institutions—municipal establishments that are needed in order to perform the functions transferred to municipalities—accountable to them implies also their right to liquidate, reorganise or upon the established procedure in any other way restructure the aforementioned institutions irrespective of the way how the liquidation, reorganisation or restructuring in any other way of municipal establishments or enterprises is called in laws or substatutory legal acts, including decisions of respective municipal councils.

The above-mentioned requirements that originate from the Constitution, inter alia, the duty of the legislature to set forth by law the procedure of establishment of municipal establishments or enterprises and the duty of municipal councils to establish municipal establishments or enterprises while following requirements that are set forth in laws, as well as the duty of municipal councils to follow requirements of the government resolutions, substatutory legal acts of ministries (ministers) or other state institutions (their heads), are applicable also mutatis mutandis to municipal councils’ decisions, by which municipal establishments or enterprises are being liquidated, reorganised or restructured in any other way, irrespective of the way how the liquidation, reorganisation or restructuring in any other way of municipal establishments or enterprises is called in laws or substatutory legal acts, including decisions of respective municipal councils.

It should be noted that the Constitution (in particular, having taken into account the fact that the principle of co-ordination of the interests of municipalities and the state is consolidated therein) does not prevent municipalities from holding the right of the founder of certain institutions (establishments or enterprises) through which the transferred to municipalities functions of the state are performed, if it is permitted by law, together with other subjects, inter alia, state institutions.

8. In its ruling of 24 December 2002, the Constitutional Court held that the executive bodies accountable to municipal councils have no right to adopt decisions which are not based on decisions of municipal councils, as well as decisions which are equal in their legal force to decisions of municipal councils. When construing this statement of the ruling of 24 December 2002, the Constitutional Court in its decision of 11 February 2004 held, inter alia, that the legislature, which has established by law that municipalities may establish their establishments or enterprises, may not set such legal regulation where decisions concerning the establishment of such establishments or enterprises are adopted by executive bodies accountable to municipal councils instead of the latter.

This provision is mutatis mutandis applicable also to decisions of municipal councils by which municipal establishments or enterprises are being liquidated, reorganised or restructured in any other way upon the established procedure irrespective of the way how the liquidation, reorganisation or restructuring in any other way of municipal establishments or enterprises is called in laws or substatutory legal acts, including decisions of respective municipal councils.

9. In its ruling of 13 December 2004 the Constitutional Court held: the system of state institutions comprises various state institutions; the variety of state institutions, their legal status and powers are determined by a variety of functions exercised by the state, particularities of managing the general affairs of the society, organisational and financial capabilities of the state, the content and expediency of the policy implemented during a concrete period of life of the society and development of the state, international obligations of the state, as well as other factors; certain state institutions are expressis verbis indicated in the Constitution; the Seimas, the President of the Republic, the Government, and courts are the institutions exercising state power; in the Constitution one has indicated also certain state institutions which are not assigned, pursuant to the Constitution, to the legislative, executive, or judicial branches of power; in the Constitution, the term “institution” comprises not only state institutions—it bears a broader sense as well, because in certain cases non-state institutions are called the same too.

In the Constitutional Court’s ruling of 13 December 2004 it is held also that according to the Constitution it is the Seimas and according to laws it is also the Government who enjoy the powers to establish state institutions other than those expressis verbis indicated in the Constitution, a need to establish which originates from the necessity to implement state governance, to administer affairs of the state, to ensure the performance of various state functions, that, while paying heed to the Constitution, law may also establish such legal regulation where certain state institutions may be established under the institution of the President of the Republic, the Head of State, as well as that law may also establish the legal regulation where certain state institutions that ensure independent administration of courts are founded under the judicial branch.

It should be held that various state institutions (including establishments and enterprises) may or, in certain cases even must, be established, within their competence and pursuant to the requirements of laws, also by the state institutions which are not assigned by the Constitution to the legislative, executive, or judicial branches of power.

In addition, it should be held that various state institutions (including establishments and enterprises) within their competence and in line with requirements of laws may, and in some cases even must, be also established by the state institutions which are not specified in the Constitution and which themselves were established according to the law by other state institutions as well.

In this context, it should be emphasised that the concept used in the Constitution “state institution” is a constitutional concept, it has a constitutional content and may not be construed on the grounds of the sole fact that an analogous concept is defined in laws or other legal acts; according to the Constitution all institutions (including establishments and enterprises) through which the state exercises its functions and the rights of the founder of which are owned by the state (its institutions), irrespective of the way how certain institutions are called in laws and/or substatutory legal acts, should be considered state institutions. In this regard the notion “state institutions” is a generalising one. In its ruling of 13 December 2004, the Constitutional Court held that the notion “state institutions” which is used in the Constitution is of general type comprises various state institutions through which the state exercises its functions, that the state institutions comprise a system, and that this system of state institutions is consolidated in legal acts of diverse legal force: some state institutions are expressis verbis specified in the Constitution, others, according to the Constitution, must be specified by law, still others are established on the grounds of a need to implement state governance, to administer affairs of the state, to ensure the performance of various state functions—the state institutions must be organised in order to perform such functions although their establishment is not explicitly provided for in the Constitution.

The indicated provisions concerning the establishment, based on laws, of the state institutions (including establishments and enterprises), through which the state exercises its functions, is mutatis mutandis applicable also to the liquidation, reorganisation or restructuring in any other way under established procedure, irrespective of the way how such liquidation, reorganisation or restructuring in any other way of the state institutions is called in laws or substatutory legal acts, of state institutions (including establishments and enterprises), through which the state exercises its functions.

One must note that the Constitution does not prevent the state institutions from holding the rights of the founder of certain establishments or enterprises together with other subjects, inter alia, municipalities, if this is permitted by law. Thus, the Constitution does not prevent state institutions from founding, within their competence and in line with the requirements of laws, certain establishments or enterprises together with other subjects, inter alia, municipalities.

10. It has been held in this ruling of the Constitutional Court that due to the fact the public interest, which must be guaranteed by local self-government as well, and specific tasks that are faced within a particular period by the whole society, the state and territorial communities, are dynamic and subject to change, the legislature may and in certain cases even must change by law (expand, narrow or correct otherwise) the scope and content of functions that are transferred to municipality, transfer new functions, which were previously not performed, to be performed by municipalities and/or stipulate that municipalities cease to perform certain functions, which were performed earlier, moreover, that the legislature may, and in certain cases even must, also respectively correct the competence (empowerments) of municipalities (their institutions or officials), which is needed in order to perform the functions transferred to municipalities.

The establishment of a public interest, which has to be guaranteed by local self-government as well, and changing, by law, the scope and content of the functions that are transferred to municipality, transferring new functions, which were previously not performed, to be performed by municipalities and/or stipulating that municipalities cease to perform certain functions, which were performed earlier, caused by dynamics of specific tasks that are faced by the whole society, the state and territorial communities, may be related to the assignment of certain establishments or enterprises to municipalities, inter alia, the transfer of the rights of the founder of these establishments or enterprises, which were previously held by certain state institutions, to municipalities. It should be especially noted that the aforementioned assignment of state establishments or enterprises to municipalities and transfer of rights of their founder to municipalities imply also that municipalities may also take over new duties related to the funding of respective establishments or enterprises or their support in another form, as well as control, supervision etc. of the above-mentioned establishments or enterprises. Thus, the state establishments or enterprises must be assigned to municipalities, while the rights of the founder must be transferred to municipalities without violating the constitutional concept of local self-government, the entrenched in the Constitution independence of municipalities and freedom of their activity within the competence established by the Constitution and laws, the principles of co-ordination of interests of municipalities and the state, and paying heed to the interests of municipality; the requirements, which municipalities are not able to implement, may not be established upon them; the funding of respective municipal functions must be respectively corrected, if needed. All this implies that in order to enable respective municipalities to be ready to properly discharge the functions transferred to them, inter alia, to sufficiently exercise the rights transferred to them as founders of the establishments or enterprises and to fulfil the duties related thereto, they must be informed about the anticipated assignment of certain state establishments or enterprises (inter alia, transfer of rights of the founders of these establishments or enterprises) to these municipalities.

It has been mentioned that the Constitution does not prevent municipalities from holding the rights of the founder of certain institutions (establishments or enterprises) through which the transferred to municipalities functions of the state are performed, if it is permitted by law, together with other subjects, inter alia, state institutions. Thus, according to the Constitution, it is not impossible to establish by law such legal regulation, where, in case the rights of the founder of certain institutions (establishments or enterprises), through which state functions assigned to municipalities are exercised, are transferred not only to certain municipalities, but also to other subjects (inter alia, state institutions), or, in case the rights of the founder of certain institutions (establishments or enterprises), through which state functions assigned to municipalities are exercised, are transferred to certain municipalities, but these rights are still held by the state institutions that used to hold such rights previously, municipalities would become and continue being the founders of institutions (establishments or enterprises through which functions of the state are exercised), which used previously to belong to certain state institutions, together with the state institutions.

11. It should be stressed that assignment of certain institutions (establishments or enterprises) to municipalities, inter alia, transfer of the rights of the founder of these establishments or enterprises, which were previously held by certain state institutions, in itself does not mean that respective functions of the state are assigned to municipalities alongside. quite to the contrary: the assignment of certain institutions (establishments or enterprises) to municipalities, inter alia, transfer of the rights of the founder of these establishments or enterprises, which were previously held by state institutions, to municipalities, must be based, pursuant to the Constitution, on the fact that respective functions of the state (all or some of them to a certain extent) are transferred by law to be performed to municipalities.

12. It has been held in this ruling of the Constitutional Court that the legislature, while paying heed to the Constitution, may establish by law certain conditions and/or procedures, which must be followed by municipalities when exercising their rights of the founders of the establishments or enterprises, which have been established by them; one may establish by law other limitations, restricting to a certain extent the rights of municipalities as founders of respective establishments or enterprises, as well.

Thus, in the context of the case at issue it should be noted that the transfer of rights of the founder of establishments or enterprises, which were held previously by certain state institutions, does not mean that one may not establish by law certain conditions and/or procedures, which must be followed by municipalities when exercising the rights of the founder of the above-mentioned establishments or enterprises transferred to them, moreover, this does not mean that one may not establish by law other limitations that restrict to a certain extent the rights of municipalities as the founders of the establishments or enterprises that are newly assigned to them. When establishing the above-mentioned conditions, procedures or other restrictions, one must not violate the interests of municipalities and pay heed to the entrenched in the Constitution independence and freedom of activity of municipalities within the competence established by the Constitution and laws, as well as the principles of co-ordination of interests of municipalities and the state, which are defined in the Constitution and laws.

13. The constitutional requirements of legal clarity and legal certainty are applied to the legal acts by which certain state establishments or enterprises, inter alia, the rights of the founder of these institutions (establishments or enterprises), through which functions of the state are performed: the legal regulation must be such so that it is clear whether the rights of municipalities, as of the assignee of the rights of the founder of a respective institution (establishment or enterprise), through which functions of the state are performed, are restricted in any way, and whether no such restrictions have been established, moreover, it should not establish any uncertainty whether respective institutions (establishments or enterprises), through which functions of the state are performed, are financed or supported in any other way by the municipality, or the state (its institutions), or whether the burden of financing is divided in any way between the municipality and the state (its institutions), whether the powers of control or supervision over these institutions (establishments or enterprises), through which functions of the state are performed, belong to municipality (its institutions or officials), or the state (its institutions or officials), or both the municipality (its institutions or officials) and the state (its institutions or officials), etc.

14. It should be emphasised that assignment of any state institution or enterprise to a municipality, inter alia, transfer of the rights of the founder of this institution (establishment or enterprise), through which functions of the state are performed, to the municipality must be based on the law. The requirement that relations of such type should be regulated by means of a law originates from the Constitution—from the principle entrenched in the Constitution that administration of the state and local self-government are two non-identical systems of public power, from the constitutional imperative that municipal functions may be established by law only, from the principle of co-ordination of interests of municipalities and the state, as well as other provisions of the Constitution. The established by such law legal regulation, which is followed by the state institution enjoying the powers to issue legal acts, according to which a certain state institution (establishment or enterprise), through which functions of the state are performed, is assigned to the municipality, inter alia, the rights of the founder of this institution (establishment or enterprise), through which functions of the state are performed, are transferred, may be general (lex generalis) or special (lex specialis).

Thus, when deciding (inter alia, in the cases of constitutional justice) as to whether a legal act (inter alia, a government resolution), by which certain state institution (establishment or enterprise), through which functions of the state are performed, is assigned to a municipality, inter alia, the rights of the founder of this institution (establishment or enterprise), through which functions of the state are performed, are transferred to the municipality, is not in conflict with the Constitution, one must find out, whether the aforementioned assignment of the state institution (establishment or enterprise), through which functions of the state are performed, to municipality, inter alia, transfer of the rights of the founder of this institution (establishment or enterprise), through which functions of the state are performed, to the municipality, is based on the law (lex generalis or lex specialis), i.e. one must find out, first of all, whether the state institution that issued the respective legal act enjoyed the competence as per laws to adopt the decision to assign the said institution (establishment or enterprise), through which functions of the state are performed, to the municipality, inter alia, to transfer the rights of the founder of this institution (establishment or enterprise), through which functions of the state are performed, to the municipality, and, secondly, whether the above-mentioned decision to assign the state institution (establishment or enterprise), through which functions of the state are performed, to the municipality, inter alia, the transfer of the rights of the founder of this institutions (establishment or enterprise), through which functions of the state are performed, to the municipality, was adopted without violating the procedure established by law.

In this context, it should be noted that prior to 2 November 1992, when the Constitution of the Republic of Lithuania became effective, the national legal system was developed on the basis of the Provisional Basic Law, moreover, lots of legal acts issued prior to the restoration of the independent State of Lithuania were effective. When the Constitution became effective, the national legal system, as well as legal acts aimed at regulation of relations of local self-government, could be developed only on the basis of the Constitution. One of the features of creation of the national legal system, developed on the basis of the Constitution, was the transition to such model of interaction of public power and society, in which, while implementing the entrenched in the Constitution and declared in the Preamble thereof the striving of the Nation for an open, just, and harmonious civil society and State under the rule of law, one encourages the true self-government of a civil society (thus, of territorial communities as well). Under such circumstances the fact that municipalities-territorial communities could be supported by the state, especially if one takes into account the imperative of Paragraph 1 of Article 120 of the Constitution that the state provides support to municipalities, was an immediate public interest.

However, as it was held in the Constitutional Court’s rulings of 29 October 2003 and 5 March 2004, the creation and development of the national legal system is a gradual process. After the Constitution became effective, a legal situation, where most of the laws, which had to be issued according to the Constitution and on which, pursuant to the Constitution, one had to base all the decisions of state institutions (inter alia, the Government) and officials concerning the administration of certain areas of life of the state and society, had not been issued yet, was in place for a certain period. One must pay heed also to this fact in the cases of constitutional justice, in which one has to decide whether the government resolutions adopted within the aforementioned period, immediately after the date of coming into effect of the Constitution, are not in conflict with the Constitution.

The Government, inter alia, executes laws (Item 2 of Article 94 of the Constitution), administers the affairs of the country (Item 1 of Article 94 of the Constitution). When, after the coming into effect of the Constitution, a legal situation occurred where most of the laws establishing the powers of the Government to decide by its resolutions the affairs of administration of the country had not been issued yet, the Government used to adopt resolutions which were not directly based on laws that established respective powers of the Government. When deciding, in cases of constitutional justice, whether such government resolutions were not in conflict with the Constitution, one should also take account of the fact whether respective decisions were not determined by a necessity to immediately implement certain provisions of the Constitution, despite the fact that their implementation, thus, the powers of the Government in particular areas as well, had not been regulated by law yet.

Alongside, it should be noted that immediately after the Constitution became effective, a legal situation occurred where most of the laws, which had to be issued according to the Constitution and which had to be the basis, pursuant to the Constitution, for all government resolutions related to administration of certain areas of life of the state and society, had not been issued yet, in itself does not justify any legal act issued by the Government during the above-mentioned period, if it is not based on laws. In order not to recognise a government resolution which is not based on laws (neither lex generalis, nor lex specialis) as being in conflict with the Constitution, a respective government resolution had to be caused by the necessity to immediately implement certain provisions of the Constitution, the non-implementation of which would have resulted in a fundamental harm to certain values, entrenched in, as well as protected and defended by the Constitution. Besides, the aforementioned legal situation, which originated immediately after the coming into effect of the Constitution, should be considered as a notably short-term situation, i.e. the one of unavoidable transitional period; other construction of this situation would be absolutely inconsistent with the Constitution, inter alia, the principle of supremacy of the Constitution. It should be especially noted that the aforementioned transitional period, when the said specific legal situation was in place, is long over.

Thus, when deciding in cases of constitutional justice, whether a government resolution, by which a certain state establishment or enterprise is assigned to a municipality (inter alia, the rights of the founder of this establishment or enterprise are transferred), is not in conflict with the Constitution, one must find out not only whether the above-mentioned assignment of the state establishment or enterprise to the municipality (inter alia, the transfer of the rights of the founder of this establishment or enterprise) is based on the law, but also whether such government resolution was adopted during the aforementioned transitional period (right after the entry into effect of the Constitution) and whether the respective government resolution was based on the necessity to implement certain provisions of the Constitution, without implementation of which one would have inflicted harm on certain values, entrenched in and protected and defended by the Constitution (including the provisions, consolidating the constitutional concept of local self-government, inter alia, constitutional bases of the functioning of local self-government, as well as relations of local self-government and state administration).

15. As mentioned before, when deciding, in the constitutional justice case at issue, whether the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) and Items 1, 2.3 and 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 are not in conflict with Paragraph 2 of Article 120 of the Constitution, one should take into account the provisions of Article 42 of the Constitution, which entrench, inter alia, freedom of culture, as well as the constitutional bases of state support to culture and protection of cultural monuments and other culturally valuable objects, and the relation of these provisions with the indicated by the petitioner provision of Paragraph 2 of Article 120 of the Constitution that municipalities act freely and independently within their competence, which is established by the Constitution and laws, as well as other provisions of the Constitution that consolidate the constitutional concept of local self-government.

In this context, one should discuss the following provisions of Article 42 of the Constitution: culture, science and research, and teaching shall be free (Paragraph 1); the State shall support culture and science and shall protect Lithuanian historical, art, and cultural monuments and other culturally valuable objects (Paragraph 2). Thus, in Paragraph 1 of Article 42 of the Constitution the principle of freedom of culture is expressis verbis entrenched, and in Paragraph 2 the constitutional duty of the state to support culture, as well as to protect cultural monuments and other culturally valuable objects is consolidated.

16. The notion of culture is used in the Constitution not only in the indicated provisions of Article 42 of the Constitution, but also in other articles (paragraphs) thereof. The constitutional concept of culture is especially broad. It comprises various values held and fostered by the Nation and separate communities, the models and norms of behaviour that have originated in the society (including law, customs and traditions), historical experience, spoken and written language, institutions, world-view and convictions, etc. On the other hand, in the constitutional concept of culture (inter alia, in Article 42) one stresses the purposeful both material and spiritual creative activity of people and its results—art, science, education, architecture, technology, etc. Cultural values are transferred to the future generations, they are the foundation of survival and continuity of the Nation and the state, thus, they are protected and defended by the Constitution. Culture is a national value of universal importance. The Constitution obligates the state to ensure freedom of culture, to support culture, to protect cultural monuments and other culturally valuable objects. The ensuring of freedom of culture, state support to culture, protection of cultural monuments and other culturally valuable objects is a public interest and important function of the state—a function of state support and protection of culture.

In this context, one should especially stress the importance of provisions that are set forth in the Preamble to the Constitution: it is entrenched therein that the Lithuanian Nation, having created the State of Lithuania many centuries ago, having based its legal foundations on the Lithuanian Statutes and the Constitutions of the Republic of Lithuania, having for centuries persistently defended its freedom and independence, having preserved its spirit, native language, writing, and customs, embodying the innate right of the human being and the Nation to live and create freely in the land of their fathers and forefathers—in the independent State of Lithuania, fostering national concord in the land of Lithuania, striving for an open, just, and harmonious civil society and state under the rule of law, by the will of the citizens of the reborn State of Lithuania, adopts and proclaims this Constitution. Thus, the Lithuanian Nation has obligated the state created by it to foster the cultural values that are entrenched in the Preamble to the Constitution, and not to give them up under any circumstances. All other provisions of the Constitution, including the ones that are set forth in Article 42, must be construed so that one does not deviate from the imperatives originating from the Preamble to the Constitution.

17. The entrenched in Paragraph 1 of Article 42 of the Constitution freedom of culture should be construed by taking account of the fact that, as already mentioned, the constitutional concept of culture defines a purposeful material and spiritual creative activity of people and its results. In this regard the concept of freedom of culture comprises also freedom of science and research, as well as freedom of teaching, which are mentioned in Paragraph 1 of Article 42 of the Constitution as well. It should be noted alongside that cultural activity is not limited to scientific work, research and teaching, thus, the concept of freedom of culture is not limited to freedom of scientific work, research and teaching; it is much wider.

18. The Constitution distinguishes two aspects of freedom of culture as an innate freedom of a human being. The entrenched in the Constitution freedom of culture comprises: (1) freedom of creative activity, which, in its turn, comprises the right of every person to freely create material and spiritual cultural values (freedom of the process of creation) and the right to spread or distribute in any other way the created material and spiritual cultural values (freedom of spreading products of creative activity); (2) freedom of accessibility to cultural values, i.e. freedom of every person to use created cultural valuables.

19. In its ruling of 1 July 2004, the Constitutional Court held: “According to the Constitution, creative activities are activities in the area of science, technology, culture or art, aimed at creating a certain result, i.e. qualitatively new, original and specific material or spiritual values of science, technology, culture or art, which have never existed before. Creative activities may be continuous, professional, and of a one-off type (episodic).” The creation of material and spiritual values is impossible without freedom of creative activity.

The imperative of freedom of creative activity is consolidated not only in Article 42 of the Constitution (inter alia, Paragraph 1 thereof), other articles of the Constitution (their parts) that entrench human rights and freedoms, but in the provision of the Preamble to the Constitution, which consolidates the innate right of a person and the Nation to create freely in the independent State of Lithuania. Creation of material and spiritual values is realisation of creative potential and abilities of a human being. Thus, freedom of creative activity (comprising freedom of the process of creation and freedom of spreading products of creative activity) is one of the most important manifestations of freedom of self-expression, which is one of the universally recognised innate human rights and which is entrenched in, as well as protected and defended by the Constitution; on the other hand, the content of freedom of self-expression is broader than that of freedom of creative activity and is not limited thereby. Freedom of creative activity (as freedom of self-expression in general) is inseparably related to the entrenched in Article 25 of the Constitution human right to have his own convictions and freely express them (freedom of convictions and their expression) and freedom of searching for, obtaining and imparting information and ideas (freedom of information), which are in their turn directly interrelated.

20. When construing the content of the entrenched in the Constitution freedom of human convictions and their expression, the Constitutional Court has held: convictions are a spacious and diverse constitutional notion comprising political and economic convictions, religious feelings, cultural attitudes, ethic and aesthetic views, etc.; freedom of convictions means that a person is free to form his convictions himself, to form and express his attitudes, choose values of world-view; he is protected from any compulsion, his attitudes may not be subject to control; a duty of state institutions is to ensure and protect this freedom of the person; the content of convictions is a private matter of a human being; freedom of convictions and their expression entrenches ideological, cultural and political pluralism; no convictions or ideology may be declared compulsory and forced upon an individual; the state must be neutral in regard to convictions, it has no right to establish any compulsory system of convictions; the right to freely express convictions is inseparable from freedom of such convictions; freedom of expression of convictions is the possibility of expressing thoughts, views, and convictions without hindrance orally, in writing, in signs, and by applying other ways and means of spreading information; freedom of expression of convictions comprises also freedom not to disclose one’s convictions, and not to be forced to disclose them. The Constitutional Court has also held that freedom of convictions in general may not be limited, while freedom of expressing convictions may be limited only upon the procedure established by law and only when it is necessary in order to protect the values indicated in Paragraph 3 of Article 25 of the Constitution—health, honour and dignity, private life, and morals of a human being—or to defend constitutional order; according to Article 145 of the Constitution freedom of expression of convictions may also be limited temporarily by introducing a state of war or emergency (the Constitutional Court’s ruling of 13 June 2000). In this context it should be noted that the validity of a limitation on a human right or freedom may be assessed in a democratic state according to the criteria of reasonability and obvious necessity, it must be in line, inter alia, with the concept of justice (the Constitutional Court’s rulings of 13 February 1997 and 13 June 2000). In its rulings the Constitutional Court has held more than once that according to the Constitution human rights and freedoms may be limited only if the following conditions are met: this is done by law; the limitations are necessary in a democratic society in order to protect the rights and freedoms of other persons, the values that are entrenched in the Constitution, as well as constitutionally important objectives; by restrictions one does not deny the nature and essence of rights and freedoms; and when the constitutional principle of proportionality is followed.

21. When construing the content of the entrenched in the Constitution freedom of information as an innate freedom of a human being, the Constitutional Court has held: this freedom is one of the fundamentals of an open, just, and harmonious civil society and state under the rule of law, as well as an important pre-condition for the implementation of various rights and freedoms of the person which are entrenched in the Constitution, since the person can implement most of his constitutional rights and freedoms in an all-sufficient manner only if he has the right to seek, obtain and impart information unhindered. The Constitution guarantees and safeguards the interest of the public to be informed, inter alia, freedom of mass media (the Constitutional Court’s rulings of 23 October 2002 and 26 January 2004). It should be stressed alongside that freedom of expressing convictions and imparting information is incompatible with criminal actions—the instigation of national, racial, religious, or social hatred, violence and discrimination, slander and disinformation (Paragraph 4 of Article 25 of the Constitution); thus, the constitutional concept of freedom of information (as well as freedom of expression of convictions) does not comprise the seeming freedom, which denies the constitutional values in their essence, to perform criminal actions indicated in Paragraph 4 of Article 25 of the Constitution—to spread ideas, views, etc., by which national, racial, or social hatred, violence or discrimination is instigated, persons are being slandered or society or its separate members are being misinformed. Freedom of information is not absolute, its limits are defined in the Constitution. In this context, it should be noted that in exercising rights and freedoms, the human being must observe the Constitution and the laws of the Republic of Lithuania and must not impair the rights and freedoms of other people (Article 28 of the Constitution). Under the Constitution, it is not permitted to establish any such legal regulation by which, while consolidating the guarantees for implementation of freedom of information, conditions would be created to violate the other constitutional values and the balance among the constitutional values (the Constitutional Court’s ruling of 23 October 2002). However, any restrictions of freedom of information must be based on the same constitutional criteria, as in case of restrictions of other fundamental human rights and freedoms: freedom of information may be restricted, if this is done by law, if the restrictions are necessary in a democratic society in an attempt to protect the rights and freedoms of other persons and the values entrenched in the Constitution as well as the constitutionally important objectives, if the restrictions do not deny the nature and essence of the rights and freedoms, and if the constitutional principle of proportionality is followed (the Constitutional Court’s rulings of 23 October 2002 and 26 January 2004).

22. With regard to what has been said, freedom of creative activity of every human being (which comprises freedom of process of creation and freedom of spreading results of creative activity), which is entrenched in the Constitution, has much in common with the constitutional freedoms of convictions of a human being and their expression, as well as freedom of information. The constitutional freedom of creative activity of every human being (which comprises freedom of process of creation and freedom of spreading products of creative activity), as an innate right, implies the right of every human being to realise without hindering his creative powers or abilities in any area of purposeful creative activity of human beings, where such activity may (but not necessarily does) result in any material or spiritual values (art, science, architecture, technology, etc.) which, from the standpoint of the Nation and/or individual communities, should be held and fostered. In this regard freedom of creative activity is a condition of pluralism in the society, sapidity and variety of public life.

The human being uses freedom of the process of creation without any hindrance and control, he acts only at his own discretion, by following his own convictions. An encroachment upon freedom of creative process may also be linked with a violation of his right to privacy and freedom of convictions. It should be noted that the Constitution guarantees to every human being freedom of the process of creation irrespective of true or implied talents, abilities, his personal or other characteristics, legal status (inter alia, the fact whether one belongs or does not belong to any association of artists), as well as irrespective of possible results of creative activity of that person, i.e. irrespective of the fact whether or not these results will be regarded as cultural values (achievements) that have any permanent value. In its ruling of 1 July 2004, the Constitutional Court held: “The notion of creative activities, which is established in the Constitution, is integral and its content does not depend, inter alia, upon a person who is engaged in them.” According to the Constitution, the state may not discriminate any creative activity, prohibit or restrict any trend of creative activity only due to the fact that in the opinion of the legislature this creative activity and/or its possible results are seemingly not useful to society, though they are not detrimental either. The constitutional duty of the state to ensure freedom of process of creation for every human being comprises not only its duty not to discriminate any creative activity itself, but also to protect and defend this freedom of a human being from illegal encroachment upon it by other persons. Alongside, it should be stressed that one may not construe freedom of process of creation of every human being, which originates from the Constitution, as the one which implies also an opportunity for a human being to realise his creative powers and abilities, when such activity violates laws, as well as rights and freedoms of other persons; freedom of process of creative activity does not deny the liability of the person for his activity, by which one strives to create any material or spiritual cultural values.

Freedom of spreading products of creative activity is not absolute; the established in the Constitution limits of freedom of spreading products of creative activity are narrower in comparison to freedom of process of creative activity. Like the constitutional concept of freedoms of information and expression of convictions does not comprise an alleged freedom of spreading the ideas, attitudes, etc., by which national, racial, or social hatred, violence or discrimination is instigated, persons are slandered or society or its individual members are misinformed, the constitutional concept of freedom of spreading products of creative activity does not comprise an alleged freedom, which denies in essence the constitutional values, of spreading ideas, attitudes, etc., by which national, racial, or social hatred, violence or discrimination is instigated, persons are slandered or society or its individual members are misinformed, orally, in writing, in signs, or by applying other ways and means of transferring information, i.e. it does not comprise the aforementioned alleged freedom, which denies the constitutional values, to engage in criminal actions indicated in Paragraph 4 of Article 25 of the Constitution. The Constitution does not tolerate situations where one abuses freedom of spreading products of creative activity as freedom of expression in general or any other constitutional human right or freedom, where one uses it as a cover for the actions, by which certain values entrenched in and protected by the Constitution are denied in essence. The state has a constitutional duty to establish such legal regulation, where one is able to ensure that freedom of spreading products of creative activity will not be used as a cover while seeking to attain the aforementioned unconstitutional objectives. It should be noted also that according to the Constitution freedom of spreading products of creative activity, like freedom of information and freedom of expression of convictions, may be restricted upon the procedure established by law and this may be done in cases, where it is necessary to protect values indicated in Paragraph 3 of Article 25 of the Constitution—health, honour and dignity, private life, and morals of a human being, or to defend constitutional order (it may be, inter alia, temporarily limited by introducing martial law or a state or emergency). However, any restrictions of freedom of spreading products of creative activity must be based on the same constitutional criteria as the restrictions of other fundamental human rights and freedoms: this freedom may be restricted only if this is done by law, only if they are necessary in a democratic society in order to protect the rights and freedoms of other persons, the values that are entrenched in the Constitution, as well as constitutionally important objectives, only if by the restrictions one does not deny the nature and essence of rights and freedoms, and only if the constitutional principle of proportionality is followed.

23. By ensuring freedom of creative activity (comprising freedom of process of creation and freedom of spreading products of creative activity) and freedom of culture in general, pursuant to the Constitution the state has not only duties with negative content (inter alia, not to discriminate any creative activity and to protect this freedom from illegal encroachment upon it by other persons), but duties with positive content as well.

It has been held in this ruling of the Constitutional Court that every human being has the right to use freely the created cultural values. In the Constitution one has entrenched freedom of accessibility to cultural values. This freedom, protected and defended by the Constitution, is related with the entrenched in Article 25 of the Constitution freedom of a human being to search for and obtain information and ideas, and the compulsory condition of the aforementioned freedom—freedom of a human being to form his convictions and views himself—which also originates from the Constitution. Freedom of accessibility to cultural values is related also with the imperative of open society, which is consolidated in the Constitution: if this freedom is not ensured, the striving for an open society would suffer damage as well.

The entrenched in the Constitution freedom of accessibility to cultural values implies also the negative duty of the state to ensure that human being is not hindered from free use of the created cultural values, and the positive duty of the state to adopt such decisions, which would create material, organisational and legal pre-conditions for making cultural values available to a bigger number of people, and for allocating funds from the budget to the protection of monuments of science, art, history, architecture, other monuments and values of culture, as well as to the establishments of culture (museums, theatres, libraries, organisations arranging concerts, etc.). The constitutional imperative of accessibility to cultural values implies the duty of the state to establish and maintain state institutions (establishments or enterprises) through which functions of the state are performed, which are aimed at maintaining, propagating and developing national culture, the value protected and defended by the Constitution, (inter alia, establishments or enterprises providing public cultural services) or at initiating and encouraging in other way the establishment and maintenance of other, non-governmental, institutions, the purpose of which is development of culture. The legislature enjoys a broad discretion in the area of establishment of bases of the system of cultural establishments and other institutions (inter alia, of the establishments or enterprises providing services of public culture), the purpose of which is to take care of development of culture; institutions of the executive branch, within their competence, enjoy a broad discretion in this area as well; establishment of bases of the system of cultural institutions (inter alia, of the establishments or enterprises providing services of public culture), the purpose of which is to take care of development of culture, is a matter of cultural policy of the state. On the other hand, when forming and implementing the cultural policy, one must pay heed to the resources of the state and society, material and financial capabilities of the state and society, as well as other important factors, inter alia, expediency. However, it should be stressed that, according to the Constitution, there may be no such legal regulation where the state does not substantially support the system of institutions contributing to development of culture.

24. The entrenched in the Constitution freedom of culture should be construed while taking account also of the right of union of citizens or freedom of association, one of the fundamental rights of a citizen of a democratic state, which is consolidated in Article 35 of the Constitution. To belong or not to any association—the person makes this decision on his free will (the Constitutional Court’s rulings of 21 December 2000 and 1 July 2004). The unions provided for in the Constitution are founded and act in the interests of their members. The basic element of the constitutional legal status of the unions provided for in the Constitution is their autonomy in regard to the state governing bodies, and other state or municipal institutions, in other words—public power. Only being autonomous in regard to the state governing bodies, and other state and municipal institutions the unions may efficiently act as an important element of the civil society, be a form of self-expression of citizens of a democratic state and a guarantee of public activity (the Constitutional Court’s ruling of 1 July 2004).

One may enjoy freedom of culture (comprising freedom of creative activity and freedom of accessibility to cultural values), like most of the other constitutional rights and freedoms, not only individually, but through the unions provided for in Article 35 of the Constitution as well. It is not permitted to establish any requirements or limitations on the activity of artists, nor to prevent them or other persons from founding associations that spread culture and/or defend material and spiritual interests of artists.

25. A necessary condition of freedom of culture, as an innate freedom of a human being (which comprises freedom of creative activity and freedom of accessibility to cultural values) is support to culture, as well as protection of cultural monuments and values. It has been mentioned that it is established in Paragraph 2 of Article 42 of the Constitution that the state supports culture and science and protects Lithuanian historical, art, and cultural monuments and other culturally valuable objects. It has been held in this ruling of the Constitutional Court that the support and protection of culture by the state is an important function of the state and a public interest. It should be stressed that the provisions of Paragraph 2 of Article 42 of the Constitution are imperative: not only do they specify that culture must be supported, that cultural monuments and culturally valuable objects must be protected, but also they consolidate the subject, which has both positive and negative duties to ensure that culture is supported and cultural monuments and culturally valuable objects are protected, which namely is the state.

Paragraph 2 of Article 42 of the Constitution should be construed by taking account of the fact that, as already mentioned, the constitutional concept of culture comprises various values held and nourished by the Nation and individual communities, including historical experience, spoken and written language, etc., as well as of the fact that in the constitutional concept of culture one defines a purposeful material and spiritual creative activity of human beings and its results, inter alia, art and science. In this regard the constitutional bases, entrenched in Paragraph 2 of Article 42 of the Constitution comprise also the established in this paragraph duty of the state to support science, while the constitutional bases of protection of cultural monuments and culturally valuable objects, entrenched in Paragraph 2 of Article 42 of the Constitution, comprise also the consolidated in this paragraph duty of the state to take care of monuments of Lithuanian history and art.

The provisions of Paragraph 2 of Article 42 of the Constitution that the state supports culture and science and takes care of Lithuanian historical, art, and cultural monuments and other culturally valuable objects mean that the state is constitutionally obligated to support and foster culture as a national value of universal importance—the material and spiritual creative activity and its results that should be transferred to future generations; according to the Constitution, the state must not only refrain from hindering the natural development of culture (inter alia, from discriminating against any creative activity), but by its positive decisions (inter alia, legal regulation) encourage and support by using state funds and other resources the creation, spreading, propagation and preserving material and spiritual cultural values. It should be noted that decisions of institutions of public power regarding the state support to institutions or separate artists engaged in cultural activity, as well as separate initiatives developing culture (projects, programs) must be adopted while paying heed to the principles of equal rights of all persons and honest competition, as well as the requirement of publicity, which are entrenched in the Constitution. The imperative of a just society and social harmony, which is consolidated in the Constitution, implies that while supporting culture (inter alia, creative activity) one must pay heed to the resources of the state and society, material and financial capabilities and other important factors, inter alia, expediency.

26. It has been held in this ruling of the Constitutional Court that state support to culture, and protection of cultural monuments and culturally valuable objects is a public interest and an important function of the state. It has also been held that pursuant to the Constitution there may be no such legal regulation where the state does not substantially support the system of institutions contributing to development of culture. The constitutional consolidation of culture as a publicly important value results in the support of culture on the national scale.

The Seimas enjoys the discretion to establish which institutions form and implement the policy of culture, and perform the function of state support to culture and its protection. In Lithuania there is an established tradition (similar to majority of states) it is the Ministry of Culture that enjoys wide range of powers when implementing the cultural policy.

27. It has been mentioned that certain state functions of may also be transferred by law to municipalities for execution, and that the legislature enjoys a broad discretion to establish by law, what functions (all or some of them to a certain extent) are assigned to municipalities. It has also been mentioned that performance of certain functions of the state may not be objectively non-transferred (at least to a certain extent) to municipalities, because otherwise an efficient performance of such functions would not be ensured.

In the context of the constitutional justice case at issue, it should be stressed that it is such function of the state which constitutes support and protection of culture. The fact that the above-mentioned function of the state may not be not transferred at least to a certain extent to municipalities is caused by the nature of both this function and local self-government as self-administration and self-activity according to the competence defined in the Constitution and laws of the territorial communities of administrative units that are provided for in laws. The spread of culture is, first of all, its spread in the closest environment, territorial surroundings among those who live in the respective area on whose territory certain cultural objects are located; accessibility to cultural values implies first of all their accessibility to the members and residents of community, in the territory of which respective cultural objects are located; cultural establishments (museums, theatres, libraries, concert organisations, etc.) function in certain administrative territorial units, localities; cultural monuments and other objects of culture are located also in certain territories, the local authorities (their institutions or officials) possessing which may not avoid respective obligations related to the maintaining of these monuments, the ensuring of their accessibility etc.; creators are also members of territorial communities; associations of creators function in particular administrative territorial units, thus, the state support to creators and their associations may be rational and efficient only if one takes account of the local conditions, in which creators act and their association function; etc. Moreover, state support and development of culture as a constitutionally protected and defended value would be impossible, if culture was not developed in regions, separate parts of the territory of the state, separate self-governing territorial communities, which form a part of the entire community of the state—the civil Nation.

The extent to which the performance of the function of the support and protection of culture should be transferred to municipalities is subject to the state policy of culture. The legislature enjoys a broad discretion in this regard. However, it must pay heed to the independence of municipalities and freedom of their activity within the competence established by the Constitution and laws, the principles of co-ordination of interests of municipalities and the state, as well as the constitutional concept of local self-government.

Alongside it should be noted that the fact that the support and protection of culture as a function of the state may not be to a certain extent not transferred to municipalities does not mean that the state (its institutions) may opt out from the performance of this function. It was held that a relation exists between the administration of the state and local self-government, which manifests itself, inter alia, in the fact that centralised governance of the state in administrative territorial units is combined with decentralisation, that in the laws one consolidates cooperation of institutions of central power and municipalities, that the state supports municipalities in various ways and forms, as well as that the state, in the forms defined by law, supervises activity of municipalities and coordinates joint actions of the state and municipalities when striving for the important social objectives. Thus, to whatever extent the execution of the aforementioned function is transferred to municipalities, according to the Constitution the state still has a duty to ensure that this function is performed properly.

28. It has been mentioned that according to the Constitution functions of municipalities may be established only by means of a law; this may not be done by substatutory legal act. In this context, it should also be noted that the support and protection of culture in the Constitution is not expressis verbis consolidated as the function which is assigned exceptionally to municipalities (respective competence of municipalities is not directly consolidated in the Constitution). Thus, the duty of municipalities to perform (to a certain extent) the function of the support and protection of culture may be established by law only; one may establish respective competence of municipalities only by means of a law as well. The requirements of legal clarity, which stem from the Constitution, are applicable to such laws: the legal regulation established therein must be such that it is clear to what extent do municipalities perform this function and to what extent the performance of it is left to the state.

Due to the fact that, according to the Constitution, one may not assign to the institutions of self-government any such function which they are not able to perform, a duty arises for the legislature to establish by law such legal regulation, where, having taken into account resources, as well as material and financial capabilities of the state and society, and other important factors one would ensure (to a certain extent) the financing (inter alia, from the state budget) of the function of support and protection of culture, which is transferred to municipalities. The municipalities (their institutions or officials), the councils of which enjoy the powers, pursuant to the Constitution, to draw up and approve an independent budget, have also a duty to adopt decisions according to the competence defined by the Constitution and laws so that funds that are necessary for implementation of their functions are raised and used in a proper manner; they are in charge of sufficient execution of functions transferred to them. However, it should be held that the constitutional consolidation of culture as a national value of universal importance does not permit placing the burden of providing funds to the institutions that contribute to the development of culture on municipalities only.

29. It has been held in this ruling of the Constitutional Court that pursuant to the Constitution the state has a duty to found and provide funding to the state institutions (establishments or enterprises, through which functions of the state are performed) whose objective would be taking care of development of culture (inter alia, establishments or enterprises providing public cultural services), or to initiate or encourage founding and providing support to other—non-governmental—institutions, the purpose of which is taking care of development of culture, as well as that according to the Constitution there may be no legal regulation where the state does not substantially maintain the system of institutions contributing to the development of culture.

In order to perform (to the established extent) the function of supporting and protecting culture, which is transferred to them, and to implement their competence in this area municipalities may and, in certain cases, must have respective institutions that contribute to the development of culture (inter alia, institutions or enterprises that provide services of public culture), which are found, reorganised, restructured in any other way or liquidated by municipalities (their institutions) in line with requirements established in laws.

The legislature, while paying heed to the Constitution, may establish by law certain conditions and/or procedure, which must be followed by municipalities when implementing their rights of the founder of institutions or enterprises (inter alia, the establishments or enterprises that provide services of public culture) that are founded by them and that contribute to the development of culture, as well as other limitations that restrict to a certain extent the rights of municipalities as the founders of respective establishments or enterprises and guarantee that municipalities will properly perform the function of the support and protection of culture which is transferred to them (to the established extent).

30. It has been mentioned that due to the fact that the public interest, which must be ensured by local self-government as well, and particular tasks that are faced within a particular period by the whole society, the state and territorial communities, are dynamic and they are subject to change, the legislature may and, in certain cases, must change by means of a law (expand, narrow or correct it otherwise) the scope and content of functions that are transferred to municipalities, or transfer new functions, which were previously not performed, to be performed by municipalities and/or stipulate that municipalities cease to perform certain functions, which were performed earlier; in addition, it has been mentioned that the legislature may, and in certain cases even must also respectively correct the competence (empowerments) of municipalities (their institutions or officials), which is needed in order to perform the functions transferred to municipalities.

The cultural policy of the state cannot be non-dynamic, either; its formation and implementation are corrected by taking various factors into account. Therefore, the content of the function of support and protection of culture, which is transferred to municipalities by law, may be changed by law, the extent, to which the municipalities are assigned with performance of this functions may be extended or reduced by law. In the context of the case at issue, it should be held that in order to more efficiently ensure the interests of municipalities, to better take into consideration of the local conditions of the localities in which creators and their associations act, to bring the spread of culture closer to territorial communities, to decentralise administration of culture, as well as by other reasons (first of all the expediency), one may commission municipalities by law with the performance of the function of the support and protection of culture to a greater extent—the performance of this function (to a certain extent) may be transferred from the national level to municipal level. Alongside, the reverse process when the performance of the aforementioned functions (to a certain extent) is transferred from municipal level to the national level, is, in general, not impossible as well.

When transferring the performance (to a certain extent) of the function of the support and protection of culture from the national level to municipal level, one must pay heed to the constitutional concept of local self-government, the entrenched in the Constitution independence of municipalities and freedom of their activity within the competence established by the Constitution and laws, the principles of co-ordination of interests of municipalities and the state, and interests of municipalities; one may not establish to municipalities such obligations, which they are unable to fulfil; if necessary, one should correct (increase or reduce) the funding of the functions of respective municipalities.

31. The above-mentioned transfer of performance of functions (to a certain extent) of the support and protection of culture from the national level to municipal level may be related to the change of subordination of certain state institutions (establishments or enterprises), the purpose of which is to take care of development of culture (inter alia, the establishments or enterprises that provide services of public culture), whereby the administration of such establishments is transferred from the system of state administration to local self-government. The legislature, while paying heed to the Constitution, may establish by law certain conditions and/or procedures, which must be followed by municipalities when exercising the rights of the founders of the establishments or enterprises (inter alia, the establishments or enterprises that provide services of public culture) that are transferred to municipalities and contribute to the development of culture, as well as other limitations restricting to a certain extent the rights of municipalities as founders of respective establishments or enterprises, which would ensure the proper performance of the transferred to them (to a certain extent) function of support and protection of culture.

It has been held that assignment of any state establishment or enterprise to municipality (inter alia, transfer of rights of the founder of this establishment or enterprise) must be based on the law, and that this requirement originates from the Constitution. Thus, the change of subordination of state institutions (establishments or enterprises), the purpose of which is to take care of development of culture (inter alia, the establishments or enterprises that provide services of public culture) may not be based not on the law; this requirement originates from the Constitution as well. The constitutional requirements of legal clarity and legal certainty are applicable to the legal regulation, according to which a respective state institution enjoys the powers to issue legal acts, on the basis of which a particular state institution (establishment or enterprise), the purpose of which is to take care of the development of culture (inter alia, establishment or enterprise that provides services of public culture), is assigned to municipality (inter alia, the rights of the founder of this establishment or enterprise are transferred): it must be such, that it is clear whether the rights of municipalities, as of the holder (the sole holder or holder in partnership with other subjects, inter alia, state institutions) of the rights of the founder of a respective establishment or enterprise, are restricted to any extent or no such restrictions have been established, moreover, it should not establish any uncertainty whether respective establishments or enterprises are financed or supported in any other way by municipality, or the state (its institutions), or whether the burden of financing is divided in any way between municipality and the state (its institutions), whether the powers of control or supervision over these establishments or enterprises are vested in municipality (its institutions or officials), or the state (its institutions or officials), or both municipality (its institutions or officials) and the state (its institutions or officials), etc. Municipalities must be informed about the foreseen transfer of the above-mentioned institutions to them.

In the context of the case of the constitutional justice at issue, it should be noted that when the respective state institution transfers the cultural establishment or enterprise to the municipal level (inter alia, when one transfers the rights of the founder to municipality), the state may and, in certain cases, must establish by law various restrictions applicable to municipality, which must be followed by the latter when exercising the rights of the founder, inter alia, when adopting decisions on the reorganisation, liquidation or any other restructuring of establishments or enterprises that are transferred to municipalities. In certain cases, if the state establishes no such restrictions applicable to municipalities, performance of the function of support and protection of culture, which is transferred to the municipal level, would become more difficult or municipalities could even refuse to a certain extent the performance of the function of support and protection of culture, which is set as their function by law. This restriction of independence of municipalities originates from the Constitution and in itself should not be considered as disregard of interests of municipalities; by this restriction originating from the Constitution one ensures the co-ordination of interests of municipality and the state.

In this context, it should be mentioned that the observance of the Constitution and the laws, as well as the execution of the decisions of the Government by municipalities is supervised by representatives appointed by the Government (Paragraph 2 of Article 123 of the Constitution).

In its decision of 11 February 2004, the Constitutional Court held that while defining the competence of municipal councils and executive bodies accountable to them, the legislature can also establish the procedure of realisation of this competence, the supervision and control over municipal activities, as well as the officials who enjoy the powers to control or supervise the activities of municipal councils and executive bodies accountable to them; respective state officials (civil servants and other persons irrespective of how they are referred to in laws) have the right to adopt decisions upon which depend the adoption and implementation of decisions of municipal councils within their competence defined by the Constitution and laws. Thus, the powers of control and supervision over decisions of municipalities (their institutions or officials) may be assigned by law (while paying heed to the entrenched in the Constitution independence of municipalities and freedom of their activity within the competence established by the Constitution and laws, the principles of co-ordination of interests of municipalities and the state, as well as the constitutional concept of local self-government) to other state institutions (their officials) as well.

32. It has been held in this ruling of the Constitutional Court that one must provide funding (inter alia, from the state budget) for the function of the support and protection of culture that is transferred (to a certain extent) to municipalities, that the prohibition originates from the Constitution to place the burden of funding the institutions that contribute to the development of culture solely on municipalities, as well as the prohibition for the state not to substantially support the system of institutions that contribute to the development of culture. It has also been mentioned that in order to be able to perform the transferred to them (to a certain extent) function of the support and protection of culture and exercise their competence in this area municipalities may and, in certain cases, must have respective institutions that contribute to the development of culture (inter alia, the establishments or enterprises that provide services of public culture) and that are founded, reorganised or restructured in any other way, or liquidated by municipalities in line with the requirements established in laws, as well as the municipalities themselves (their institutions or officials) have a duty to adopt decisions according to their competence defined in the Constitution and laws, which are aimed at collecting necessary funds for performance of their functions and that these funds are used in a proper manner.

By right of ownership municipalities may own only the property which they need in order to perform the aforementioned function (to the established extent). Municipalities are subjects to the right of ownership. In addition, municipalities possess by right of trust certain property, needed in order to perform the above-mentioned functions (to the established extent), which is owned by the state by right of ownership. Both the property, which belongs by right of ownership to municipalities, and the property, which belongs by right of ownership to the state and which is possessed by municipalities by right of trust, comprise the material basis for the performance of the function of the support and protection of culture that is transferred (to a certain extent) to municipalities.

In this context, it should be stressed that the change of subordination of a certain state institution (establishment or enterprise) the purpose of which is to take care of the development of culture (inter alia, the establishments or enterprises that provide services of public culture), when the administration of this establishment is transferred from the system of administration of the state to self-government, in itself does not mean that in every case the state-owned property (its part) that is possessed by this institution by right of trust or other (non-ownership) right is transferred to municipal ownership. One may transfer state-owned property, inter alia, the one which is possessed by another person by right of trust, to municipal ownership only while paying heed to the Constitution and acting in line with laws.

33. It has been mentioned that in the constitutional justice case at issue, when deciding whether the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) and Items 1, 2.3 and 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 are not in conflict with Paragraph 2 of Article 120 of the Constitution, one should take account of the provisions of Articles 23, 47, and 128 of the Constitution that consolidate the constitutional bases of relations of ownership in the Republic of Lithuania, and links of these relations with the indicated by the petitioner provision of Paragraph 2 of Article 120 of the Constitution that municipalities act freely and independently within their competence, which shall be established by the Constitution and laws, and other provisions of the Constitution that consolidate the constitutional concept of local self-government.

34. It is established in Paragraph 2 of Article 128 of the Constitution that the procedure concerning the possession, use, and disposal of state-owned property shall be established by law.

When construing Paragraph 2 of Article 128 of the Constitution, the Constitutional Court held in its ruling of 30 September 2003: the constitutional imperative “ownership includes obligations” must also be addressed to the state and municipal institutions and officials that have the powers to adopt decisions concerning the possession, use and disposal of the property which belongs to the state by right of ownership; one may not establish any such legal regulation, where the property that belongs to the state by right of ownership would be possessed, used and disposed of in such a manner that the interests or needs of only one social group or separate persons would be satisfied and this property would not serve the public interest, need of society, welfare of the Nation (which may not be understood only in the material or financial sense); state-owned property is not an end in itself, it must render benefit for the society; state-owned property must be possessed, used and disposed of lawfully; this is supervised by the National Audit Office.

35. The provision of Paragraph 2 of Article 128 of the Constitution that procedure concerning the possession, use, and disposal of state-owned property is established by law should be construed in the context of the provision of Paragraph 1 of Article 23 of the Constitution that property shall be inviolable and the provision of Paragraph 2 of this article that the rights of ownership shall be protected by law.

Inviolability of property is a constitutional principle defended by law. Nobody may seize property arbitrarily and on other than legal basis. The right to demand that other persons do not violate his right of ownership and that the state ensures the protection of his ownership rights is guaranteed by the Constitution to the subject of ownership—the owner.

When construing Paragraph 2 of Article 128 of the Constitution together with Paragraphs 1 and 2 of Article 23 of the Constitution, the Constitutional Court has held that the provision of Paragraph 2 of Article 23 of the Constitution that the rights of ownership shall be protected by law means that the laws must protect the rights of all owners, therefore, thus, the right of ownership of the state as the organisation of the entire society as well (the Constitutional Court’s ruling of 30 September 2003). According to Paragraphs 1 and 2 of Article 23 of the Constitution, the rights of ownership of the state and municipalities (territorial communities) are protected and defended as well. The provision that the Constitution protects and defends the rights of ownership of municipalities as well is followed in the jurisprudence of the Constitutional Court (the Constitutional Court’s ruling of 23 June 1999).

36. Pursuant to the Constitution, state-owned property must be preserved and not misappropriated. Of course, this does not mean that it may not be transferred to ownership of other subjects (save the exceptions that originate from the Constitution itself).

When construing Paragraph 2 of Article 128 of the Constitution, the Constitutional Court has held that the transfer of property as ownership (also including its privatisation), which belongs by right of ownership to the state to other subjects may be constitutionally justifiable only if it renders more benefit to the society, when by this transfer significant, constitutionally grounded needs/interests of society are sought to be satisfied. Such transfer (both repayable and gratuitous) would be constitutionally unjustifiable if it caused evident harm to the society, and violated the rights of other persons. The transfer of the property which belongs by right of ownership to the state as ownership to other subjects must be based on the law. The laws must, inter alia, establish the state institutions which have the powers to adopt decisions concerning the transfer of the property which belongs by right of ownership to the state as ownership to other subjects, and the powers of these institutions to transfer the said property, as well as the conditions and procedure of this transfer of the property. It is not permitted to establish such legal regulation according to which the property that belongs to the state by right of ownership would be transferred as ownership to other subjects in order to satisfy the interests or needs of only one social group or individual persons, if this does not comply with the need of society, the public interest, or does not serve the welfare of the Nation (the Constitutional Court’s ruling of 30 September 2003).

Moreover, as already mentioned in the Constitutional Court’s ruling of 30 September 2003, the legislature, while observing the Constitution and taking account of various factors, may establish the legal regime (conditions and procedure of the use) of the property which is being transferred as ownership to other subjects in order to further safeguard the interests of the society, the welfare of the Nation, and to implement the values which are entrenched in the Constitution.

It should be held that one must pay heed to all these constitutional requirements also when the subordination of a particular state institution (establishment or enterprise) that contributes to the development of culture (inter alia, an establishment or company providing public cultural services) by transferring its administration from the system of state administration to self-government. Otherwise, one would violate the imperative of an open, just, and harmonious civil society, which is entrenched in the Constitution, and the constitutional principle of a state under the rule of law.

It has been mentioned that the change of subordination of a particular state institution (establishments or enterprise), the purpose of which is to take care of the development of culture, (inter alia, establishments or enterprises providing public cultural services) when the administration of this establishment or enterprise is transferred from the system of state administration to self-government, does not mean itself that in all cases the state-owned property (its part) that was possessed by municipality by right of trust or other (non-ownership) right is transferred to the ownership of the latter.

Alongside, it should be noted that when changing the subordination of a particular state institution (establishment or enterprise), the purpose of which is to take care of the development of culture, (inter alia, establishments or enterprises providing public cultural services) when the administration of this establishment or enterprise is transferred from the system of state administration to self-government, one may decide the issue of ownership of the state-owned property that was possessed by right of trust by the institution (establishment or enterprise) which is being transferred to the municipality. This (as well as other) state-owned property may be transferred to a respective municipality as ownership as well. This may be done only on the bases and upon the procedure established by law; if the aforementioned property, on the bases and upon the procedure established by law, is not transferred to a respective municipality as ownership, in all cases it remains ownership of the state, which may be possessed by right of trust or other (non-ownership) right by the respective municipality, institution or, if this is provided for by law, other persons.

37. The provision of Paragraph 2 of Article 128 of the Constitution that the procedure concerning the possession, use, and disposal of state-owned property shall be established by law should be construed also in the context of the provision of Paragraph 1 of Article 47 of the Constitution that the right of exclusive ownership of the subterranean, as well as internal waters, forests, parks, roads, historical, archaeological and cultural objects of state importance shall belong to the Republic of Lithuania.

It should be noted that despite several amendments to Article 47 of the Constitution, the aforementioned provision was present in the Constitution all the time (Paragraph 3 of Article 47 of the Constitution (wording of 25 October 1992), Paragraph 4 of Article 47 of the Constitution (wording of 20 June 1996), and Paragraph 1 of Article 47 of the Constitution which is effective at present (wording of 23 January 2003)) and it was not amended.

It should be held in this case of the constitutional justice at issue that while paying heed to the constitutional concept of culture (comprising, as already mentioned, quite diverse values held and nourished by the Nation and separate communities), the notion of cultural objects of state importance, which is used in Paragraph 1 of Article 47 of the Constitution, is general, it comprises historical and archaeological objects of state importance as well, but is not limited to them; it is much broader. This notion comprises diverse property—real property, movable property, property that should be categorised as belonging to the cultural heritage and recognised upon the established procedure as being of state importance. Moreover, other objects specified in Paragraph 1 of Article 47 of the Constitution (for example, parks of state importance) may be considered also as cultural objects of state importance.

38. Culture (when this notion is used in its constitutional sense) is always related with valuable objects. The Constitution does not create preconditions for recognising every cultural object that could be categorised as belonging to the cultural heritage, even of the greatest value, as the one of state importance. It is not any cultural object categorised as belonging to the cultural heritage, but only the cultural object whose permanent value and importance is great and the necessity to preserve it for the future generations is such insistent that without recognising it as being of state importance a threat would arise to its preservation and its accessibility to the public would not be ensured may be recognised as the one of state importance.

It should be noted that the recognition of cultural objects as the ones of state importance implies a special regulation of relations linked to the maintenance, protection and use of such cultural objects. Having taken into account the special permanent value and importance of the above-mentioned cultural objects, as well as the necessity to preserve them for future generations, in regard to the aforementioned cultural objects, in comparison to other objects, one must establish special, exceptional legal regime by law.

It has been mentioned that freedom of accessibility to culturally valuable objects—freedom of every human to use the created culturally valuable objects—is entrenched in the Constitution. Therefore, the legal regime established in regard to the cultural objects of state importance must be such where one ensures the accessibility to the aforementioned cultural objects to the public and, alongside, does not inflict damage upon these valuable objects, nor denies other constitutional values.

The law-established legal regime of cultural objects of state importance may comprise, inter alia, various prohibitions, obligations, other restrictions or limitations related to possession, use or disposal of these cultural objects. This legal regime may be differentiated by taking account of the character (inter alia, the fact whether the respective cultural objects are real property or movable property), features, and other factors of respective cultural objects.

The state (its respective institutions or officials) have the duty to control how the aforementioned legal regime is being followed.

39. The provision of Paragraph 1 of Article 47 of the Constitution that the right of exclusive ownership of the subterranean, as well as internal waters, forests, parks, roads, historical, archaeological and cultural objects of state importance shall belong to the Republic of Lithuania, means that the listed objects may belong by right of ownership solely to the state, save the exceptions that originate directly from the Constitution. The state (its institutions or officials) may not adopt any decisions that could become the basis for transferring these objects from the ownership of the state to the ownership of other subjects (save the exceptions permitted by the Constitution).

40. It has been mentioned that the constitutional concept of culture comprises various values held and fostered by the Nation and individual communities, as well as that in the constitutional concept of culture one stresses the purposeful material and spiritual creative activity of human beings and its results. The areas in which valuables objects of national and universal importance may be created and must be preserved are of a great variety: art, science, education, architecture, technology, etc.

The Constitution is an integral act (Paragraph 1 of Article 6 of the Constitution). Its norms and principles comprise a harmonious system. It is not permitted to construe any provision of the Constitution in such a manner where the content of another constitutional provision could be distorted or denied, since the essence of the whole constitutional regulation would thus be distorted and the balance of the constitutional values would thus be disturbed. The provision of Paragraph 1 of Article 47 of the Constitution that the right of exclusive ownership of the subterranean, as well as internal waters, forests, parks, roads, historical, archaeological and cultural objects of state importance shall belong to the Republic of Lithuania should be construed in the context of Article 23 of the Constitution as well. It has been mentioned that it is entrenched in Paragraph 1 of Article 23 of the Constitution that property shall be inviolable, and in Paragraph 2 that the rights of ownership shall be protected by law. In Paragraph 3 of this article it is prescribed that property may only be seized for the needs of society in accordance with the procedure established by law and shall be justly compensated for.

The Constitution, which consolidates the human rights and freedoms (inter alia, freedom of culture and the right of ownership) and recognises their innate nature, tolerates a situation where the objects of culture of even the greatest permanent value and obvious state or national importance belong by right of ownership not only to the state, but other subjects as well, of course subject to the condition that these other subjects acquired the respective cultural objects in a legal manner.

There are different ways how the above-mentioned cultural objects of state importance (similar to other objects indicated in Paragraph 1 of Article 47 of the Constitution, except the subterranean) may become the ownership of other persons, but not the state. A person (artist) may create them himself and become their owner. A person may acquire such cultural objects by transactions from another person—their legal owner; besides, the other party of such transaction need not necessarily be subject to the jurisdiction of the Republic of Lithuania. It should also be mentioned that after the restoration of independence in Lithuania the process of restitution commenced (and is not over yet)—still the existing real property that was nationalised and expropriated in any other unlawful manner by the occupation government is being returned to the former owners; thus, it is possible that even the property (for example buildings), which could be categorised as belonging to cultural objects of state importance, is being returned to the former owners. It is possible that a situation occurs where certain property, which legally belongs by right of ownership not to the state, but to another legal or natural person, due to its great permanent value and importance to the future generations is or will be declared upon the established procedure a cultural object of state importance. In all these as well as other cases, where cultural objects of state importance belong by right of ownership not to the state but other persons, according to the Constitution the state (its institutions or officials) must tolerate this. Otherwise, one would violate the constitutional imperative of an open, just, and harmonious civil society, violate the innate human rights and freedoms, as well as other values entrenched in, and protected and defended by the Constitution.

On the other hand, the institute of expropriation (eminent domain) is entrenched in the Constitution as well. According to Paragraph 3 of Article 23 of the Constitution, property may only be seized for the needs of society in accordance with the procedure established by law and shall be justly compensated for. The Constitutional Court, while construing, in the context of the problem of ownership of cultural objects of state importance, Paragraph 4 of Article 47 of the Constitution (wording of 20 June 1996), the text of which corresponds to the text of the current Paragraph 1 of Article 47 of the Constitution (wording of 23 January 2003), has held: the Constitution does not reject an opportunity to make separate cultural objects of state importance state-owned property; it would depend on the public significance and value of corresponding objects, as well as the necessity to guarantee an opportunity of its endurance and preservation for the future generations; 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 (the Constitutional Court’s ruling of 16 March 1999). It should be stressed that nationalisation of cultural objects is possible only after recognising them upon the established procedure as the ones of state importance. It should be noted that such nationalisation of cultural objects of state importance, which belong by right of ownership not to the state, but to other subjects, should be considered as an exceptional measure.

In this context, it should be mentioned that, as already held by the Constitutional Court in its ruling of 4 March 2003, under Paragraph 3 of Article 23 of the Constitution, property may be seized according, inter alia, to the following requirements: the needs of society, for which property is seized, are always particular and clearly expressed needs of society for a concrete object of property, which would not be objectively met if a certain concrete object of property were not seized; an individual decision concerning the seizure of property belonging to private ownership for the needs of society must be adopted upon the procedure established by law in every case; while adopting a decision on seizure of property for the needs of society, at the same time one must establish the amount of compensation for the property seized and the procedure of paying the compensation to the owner; the owner must be notified about the seizure of his property and the amount of the compensation for it as well as other conditions prior to the adoption of a decision on seizure of the property for the needs of society; the established compensation must be equivalent in value for the property seized; until the agreement is reached on the compensation for the property seized or until the dispute is not settled by court, the property may not be seized from the owner.

41. While taking account of the special permanent value and significance of cultural objects of state importance, as well as a need to preserve them for the future generations, the state has a constitutional duty to take care of these objects and protect them. It should be noted that the provision of Paragraph 2 of Article 42 of the Constitution that the state shall support culture and science and shall protect Lithuanian historical, art, and cultural monuments and other culturally valuable objects implies that the fact that certain cultural objects of state importance (similar to various other objects indicated in Paragraph 1 of Article 47 of the Constitution, except the subterranean) belong by right of ownership not to the state, but to other persons, does not relieve the state from the duty to ensure their protection and take care of them.

42. In this context, it should be stressed that the constitutional status of cultural objects of state importance implies the duty of the state to keep records of cultural objects of state importance, inter alia, the duty of the legislature to set by law a list of cultural objects of state importance and to mark separately which cultural objects of state importance belong to the state, and which—to other owners. If necessary, this list must be revised upon the established procedure, by taking into account the fact whether a need exists during a particular phase of development of society and the state to include additional cultural objects in this list (and/or a need to exclude certain cultural objects from the aforementioned list). It should be stressed that the inclusion of cultural objects of state importance in the aforementioned list cannot depend upon the fact whether respective cultural objects belong by right of ownership to the state or other legal or natural persons. It should be stressed also that the recognition of particular cultural objects that belong by right of ownership not to the state, but to other persons, as the ones of state importance does not mean their nationalisation.

It should be noted that no such list of cultural objects of state importance has been set by law yet.

The specified requirements that originate from the Constitution and are related to keeping record of cultural objects of state importance and the duty of the state to take care of cultural objects of state importance and to ensure their protection (irrespective of the fact whether the aforementioned cultural objects belong by right of ownership to the state or other legal or natural persons) are mutatis mutandis applicable to other objects indicated in Paragraph 1 of Article 47 of the Constitution as well.

43. It should be stressed that the duty of the state that stems from the Constitution also to take care of cultural objects of state importance that belong not to the state, but to other persons by right of ownership, and to ensure their protection may not be construed as the one which relieves their owners from the duty to contribute themselves to the preservation of the aforementioned cultural objects, and to follow the legal regime established in regard of these cultural objects that may comprise, inter alia, various prohibitions, obligations, other limitations or restrictions related to possession, use or disposal of these cultural objects. It should be emphasised that the above-mentioned prohibitions, obligations, limitations and restrictions must be reasoned—they must create preconditions for ensuring the preservation of cultural objects of state importance, as well as their accessibility to the public; they must be proportionate to the sought objective of universal importance and not restrict the rights of the owner more than it is necessary in order to attain the aforementioned objectives.

The state (its respective institutions or officials), while enjoying, under the Constitution, the powers to control how one follows the legal regime established in regard to cultural objects of state importance, has also the powers to control how the owners, to whom these objects belong by right of ownership, and the state or municipal institutions that possess these objects by right of trust or other (non-property) right, follow this legal regime.

In some cases the owners (for example, natural persons) may be unable to efficiently guarantee themselves that the cultural objects of state importance, belonging to them by right of ownership, will be preserved. It should be emphasised that the entire burden of preservation of the above-mentioned cultural objects and taking care of them cannot be placed on the owners. In this area one must find solutions ensuring a balance between the respective duties of the owner and the state.

It should also be mentioned that the legislature must establish such legal regulation, which would provide the possibility of ensuring both the accessibility to cultural objects of state importance, which belong not to the state but to other persons by right of ownership, to the public (thus, guaranteeing freedom of accessibility to valuable objects of culture as well) and the protection of rights and legal interests of the owner, and would not create preconditions for inflicting damage on the aforementioned cultural objects. In the cases where cultural objects of state importance belong by right of ownership not to the state, but other persons, the entire burden of ensuring the accessibility to the aforementioned objects of culture to the public should not be placed on the owners, either. In this area one must find solutions, guaranteeing the right balance between the rights of the owner, inter alia, the ownership rights and the right to privacy, and the rights of other persons.

44. It has been held in this ruling of the Constitutional Court that the material basis for performing the function of support and protection of culture, that is transferred to municipalities (to a certain extent), is comprised of the property, needed for the performance of this function, which belongs by right of ownership to municipalities and the property which belongs by right of ownership to the state, but is possessed by right of trust or other (non-property) right by municipalities.

It should be noticed that the property, which belongs by right of ownership to certain municipality, or the property, which belongs by right of ownership to the state, but is possessed by right of trust by a municipality, may be a cultural object of state importance or may become (be recognised) such cultural object in future. Such cultural objects must be included in the law-approved list of cultural objects of state importance, and such cultural objects may become subject to the legal regime established by law in regard to cultural objects of state importance, which may include, inter alia, various prohibitions, obligations, other restrictions or limitations concerning possession, use, and disposal of these cultural objects.

45. It should be noted that in order to more efficiently guarantee the function of support and protection of culture, entrenched in Paragraph 2 of Article 42 of the Constitution, while paying heed to the Constitution, cultural objects of state importance that belong to municipalities by right of ownership may be nationalised.

46. Is it to be held that the Constitution does not create preconditions for transferring cultural objects of state importance that belong to the state by right of ownership to municipal ownership solely due to the reason that subordination of a particular state institution (establishment or organisation) contributing to the development of culture (inter alia, establishments or enterprises providing public cultural services), is changed by replacing its administration from the system of state administration to self-government, and, for this reason, certain property is transferred to municipalities.

The indicated prohibition that originates from the Constitution does not mean that in the specified cases (when subordination of a particular state institution (establishment or organisation) contributing to the development of culture (inter alia, establishments or enterprises providing public cultural services) is changed by replacing its administration from the system of state administration to self-government, cultural objects of state importance may not be transferred to municipalities to be possessed by right of trust or other (non-property) right by establishing alongside such legal regime (conditions and procedure of use) of this property which would continue to ensure the interests of society, the welfare of the Nation, and implementation of values entrenched in the Constitution. In case the transfer of certain cultural objects of state importance to municipalities for possession by right of trust is related to the change of subordination of a certain state institution (establishment or enterprise) contributing to the development of culture (inter alia, establishments or enterprises providing public cultural services), when its administration is transferred from the system of state administration to self-government, one may and, in certain cases must, establish also such legal regime of this property, which would ensure that this property will continue to be used for the performance of the function of support and protection of culture, which is transferred to respective municipality (to the established extent).

47. In the context of the case of the constitutional justice at issue, it should be noted that the Constitution does not tolerate such change of subordination of a state institution (establishment or enterprise), inter alia, institution contributing to the development of culture, when its administration is transferred from the system of state administration to self-government, if the transfer of this institution is only a cover for transferring the state-owned property related to the aforementioned institution and/or possessed by, inter alia, the said institution or its founder—state institution (establishment or enterprise)—to be possessed by the municipality.

III

1. The petitioner—the Vilnius Regional Administrative Court—faced doubts concerning the compliance of the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) with the Constitution and the compliance of the provisions of the Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 with the Constitution and laws when it was considering an administrative case, in which the decision of the Vilnius City Municipality to liquidate the budgetary establishment, the House of Artists of Lithuania had been appealed against.

It is clear from the case material that the dispute concerning the liquidation of the House of Artists of Lithuania is related to possession, use and disposal of the building at Didžioji St. 31, Vilnius, in which the seat of the House of Artists of Lithuania is located.

2. When deciding, as to whether the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” is not in conflict with the Constitution, as well as whether Items 1, 2.3, and 2.4 of the Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 are not in conflict with the Constitution and laws, one has to find out the evolution of the legal status of the House of Artists of Lithuania, and how the possession, use and disposal of the building at Didžioji St. 31, Vilnius, in which the seat of the House of Artists of Lithuania is located, changed.

3. The building at Didžioji St. 31, Vilnius is a historical Vilnius City Hall. Historical sources indicate that in the place, where the aforementioned building is located from the 16th century institutions of self-government of Vilnius used to function. In 1845, the Russian power moved the magistrate away from the city hall. The building was used for other needs that were public as well.

4. In 1940, Lithuania was occupied, annexed and incorporated into another state—the Soviet Union. The occupation government nationalised and in other unlawful ways nationalised a great many objects of private and public ownership, inter alia, buildings of public purpose, which were declared state-owned property. The building of the Vilnius City Hall, Didžioji St. 31, was also treated as state-owned property. From 1940, the State Art Museum of Vilnius City was located therein. Names of this museum used to change (in 1941 it was named as the Vilnius State Art Museum, in 1965 as the Art Museum of the Lithuanian Soviet Socialist Republic, and in 1990 as the Art Museum of Lithuania). In 1995, the Art Museum of Lithuania was commissioned with the task to move away from this building.

It should be noted that even back in the Soviet times the aforementioned building, under the name of the Former City Hall (the then address: M. Gorkio St. 55), as a monument of architecture and history was included in the list of monuments of architecture of republic importance.

5. On 31 December 1971, the Minister of Culture issued order No. 458, whereby the House of Art Workers was founded therein as from 1 January 1972. In the above-mentioned order one indicated the seat of the House of Art Workers in Vilnius, which was then M. Kutuzovo sq. 3/8 (at present: S. Daukanto sq. 3).

On 15 November 1988, the Minister of Culture issued order No. 502, whereby the House of Art Workers was renamed as the House of Artists of the Lithuanian Soviet Socialist Republic.

On 11 March 1990, after the Supreme Council adopted the Law “On the Name of the State and the Coat of Arms”, names of enterprises, establishments, and organisations were changed, and the name of the House of Artists of the Lithuanian Soviet Socialist Republic was among them—it became the House of Artists of Lithuania.

6. On 11 March 1990, the Supreme Council adopted the Act “On the Re-establishment of the Independent State of Lithuania” whereby the independent State of Lithuania was restored. It was established in this act that, inter alia, no constitution of any other state shall be valid in Lithuania.

7. On 11 March 1990, the Supreme Council adopted the Republic of Lithuania’s Law “On the Provisional Basic Law of the Republic of Lithuania”, by Article 2 of which it approved the Provisional Basic Law of the Republic of Lithuania—the provisional constitution of the restored independent State of Lithuania. On the basis of the Provisional Basic Law one started to create the national legal system.

In Chapters 7, 12, and 13 of the Provisional Basic Law the system and principles of activity of bodies of state power of areas, cities, settlements, and districts, as well as formation of bodies of local self-government, were established.

8. When the Provisional Basic Law became effective, lots of legal acts that had been adopted prior to the restoration of the independent State of Lithuania remained effective as well. One of them is the Law on the Fundamentals of Local Self-Government, which was adopted on 12 February 1990. In this law one, inter alia, established the principles of local self-government (Article 2), as well as that the local council of people’s deputies in their territory unites and coordinates activity of other municipal bodies, and directs the public, economic and socio-cultural work (Paragraph 1 of Article 5), that the economic basis of municipality is comprised of the property of respective municipality (Paragraph 1 of Article 20), that the property of municipality is property that belongs to it and on its behalf is owned and used by the appropriate council or other legal or natural persons authorised by it (Paragraph 1 of Article 21), that, as a rule, enterprises, establishments and organisations of public education, culture and of cinematography are, inter alia, assigned to the local economy of municipality (Paragraph 2 of Article 22), that it is only the municipality that designates protected areas, national monuments of architecture, nature, history and culture of local importance, organises registration of national monuments and protects them (Item 13 of Article 24). By the aforementioned law municipalities were divided into municipalities of lower level (districts, settlements, rural districts and towns of the area (county)) and municipalities of higher level (districts (counties), and towns under the republic jurisdiction).

The above-mentioned law has been amended and supplemented, however, the legal regulation that is subject to discussion in essence remained the same.

9. By reforming and developing, on the basis of the Provisional Basic Law, the system of local self-government, one strengthened the material bases of local self-government. For example, on 19 July 1990 the Government adopted the Resolution (No. 245) “On the Procedure of Transferring State-owned Objects to Municipal Ownership”. By this resolution the Government resolved that it was reasonable to transfer to the ownership of municipalities of higher level, while paying heed to the general interests of the state and proposals by municipalities, inter alia, the following state-owned objects: the property of enterprises, establishments and organisations of education, culture and cinematography or other objects of social purpose, the services, work or all the production of which is meant solely for meeting social needs of production and residents of the territory of that particular municipality of higher level (Item 1).

10. Thus, already since the restoration of the independent State of Lithuania municipalities (their institutions) enjoy under the laws, inter alia, the Law on the Fundamentals of Local Self-Government, certain powers related to administration of establishments that contribute to the development of culture. These powers used to be expanded by legal acts.

11. In the context of the constitutional justice case at issue, it should be noted that neither the House of Artists of Lithuania (seat at S. Daukanto sq. 3, Vilnius), nor the Art Museum of Lithuania (seat at Didžioji St. 31, Vilnius), were transferred to the Vilnius City Municipality by legal acts of that period. The House of Artists of Lithuania and the Art Museum of Lithuania were state establishments funded from the state budget. The buildings in which the seats of these establishments were located were state-owned property.

12. By the referendum of the Nation, which took place on 25 October 1992, the Constitution of the Republic of Lithuania was adopted. It became effective on 2 November 1992. Since then the national legal system of Lithuania had to be created and developed only on the basis of the Constitution.

The Constitution consolidated the concept of local self-government, inter alia, the fundamentals of the functioning of local self-government as a system of public power, as well as the relations of local self-government and state administration. It was mentioned that according to the Constitution, municipalities are a subject of ownership rights.

It should be noted that a one-level system of local self-government if consolidated in the Constitution.

13. By the Order of the Ministry of Culture and Education (No. 183) “On the Regulations of the House of Artists of Lithuania” of 22 February 1993, the Regulations of the House of Artists of Lithuania were approved.

Pursuant to these regulations the House of Artists of Lithuania was a budgetary establishment, the founder of which was the Ministry of Culture and Education (Item 1.1). In this context, it should be mentioned that by Item 5 of the Republic of Lithuania’s Law “On Implementing the Law on the Government of the Republic of Lithuania” of 31 May 1994 the Ministry of Culture and Education was reorganised into the Ministry of Culture and the Ministry of Education and Science; it was the Ministry of Culture that became the founder of the House of Artists of Lithuania.

It was established in the Regulations of the House of Artists of Lithuania that were approved by the Order of the Ministry of Culture and Education (No. 183) “On the Regulations of the House of Artists of Lithuania” of 22 February 1993 that the House of Artists of Lithuania is a legal person (Item 1.2), its seat is located at S. Daukanto sq. 3/8, Vilnius (Item 1.3). The tasks and functions of the House of Artists of Lithuania were defined in Chapter 2 of the aforementioned regulations; it was established, inter alia, that the basic task of the House of Artists of Lithuania is to organise, upon the principles of artistry and public spirit, events related to art, which would be in line with the spirit of the time (Item 2.1). In the aforementioned regulations one established also that the House of Artists of Lithuania possesses, uses and disposes of the state property transferred to it (Item 5.1) and that the House of Artists of Lithuania may be liquidated upon the procedure established by law (Item 6.1).

14. It should be held that even after the Regulations of the House of Artists of Lithuania were approved by the Order of the Ministry of Culture and Education (No. 183) “On the Regulations of the House of Artists of Lithuania” of 22 February 1993, the legal status of the House of Artists of Lithuania did not change—they continued to be a state budgetary establishment, and the property owned by it was state-owned property. The seat of the House of Artists of Lithuania remained the same, S. Daukanto sq. 3/8, Vilnius.

15. On 28 October 1993, the Seimas adopted the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture”, wherein one prescribed that the establishments of culture that are assigned to the higher level of regulation by municipal councils may be reorganised or liquidated only upon written consent of the Ministry of Culture and Education.

In this context it should be noted that the notions “establishments (enterprises) belonging to the sphere of regulation by municipalities”, the content of which was neither particularised nor disclosed in any way, were used in the Lithuanian legal acts of that time. It is clear from the content of legal acts in which these notions are used that assignment of certain establishments or enterprises to the sphere of regulation by municipalities meant that municipalities (their institutions), according to the Constitution and laws, enjoyed power to adopt certain decisions concerning these establishments or enterprises.

It should be stressed that the specified in the legal acts of that time assignment of establishments or enterprises to the sphere of regulation by municipalities in itself did not mean that the state-owned property possessed by respective establishments or enterprises by right of trust was transferred to municipal ownership.

16. According to Article 37 of the Code of Civil Procedure of the Republic of Lithuania that was effective at that time (wording of 7 July 1964), the existence legal persons could be terminated by way of liquidation or reorganisation (merger, division or incorporation); the existence of state organisations, which were legal persons, used to be terminated upon the decision of the bodies, by decision of which they could be founded (Paragraph 2).

17. According to the laws that were effective at that time the House of Artists of Lithuania were not assigned to the sphere of regulation by municipal councils. It was a state budgetary establishment. Thus, the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture”, which was adopted by the Seimas on 28 October 1993, could not be applied in regard to the reorganisation or liquidation of the House of Artists of Lithuania; it could be reorganised or liquidated, pursuant to the Civil Code and other laws, by its founder—the then Ministry of Culture and Education (after the reorganisation of this ministry—by the Ministry of Culture).

18. On 17 May 1994, the Seimas adopted the Law “On Amending and Supplementing the Civil Code of the Republic of Lithuania”, by Article 55 whereof Article 95 of the Civil Code (wording of 30 November 1983) was, inter alia, supplemented with the provisions, in which the notion of public ownership is used expressis verbis. According to Paragraph 3 of Article 95 of the Civil Code (wording of 17 May 1994) public property comprised state-owned property and municipal property.

19. At that time the legal regulation of relations of local self-government underwent changes as well. In this context, it should be noted that on 7 July 1994 the Seimas adopted the Republic of Lithuania’s Law on Self-Government. According to Article 31 of this law, the latter had to become effective on the first day after elections of municipal councils. These elections took place on 25 March 1995, thus, the Law on Local Self-Government became effective on 26 March 1995. After coming into effect of the Law on Local Self-Government, the Law on the Fundamentals of Local Self-Government of 12 February 1990 (with any subsequent amendments and supplements) became no longer valid.

In the Law on Local Self-Government one consolidated a one-level system of local self-government. Local self-government was treated as a right and actual power of the institutions of a local government which is elected by the residents of an administrative unit of the territory of the Republic of Lithuania, to freely and independently on their own responsibility regulate and manage public affairs and meet the needs of local residents according to the Constitution and laws (Paragraph 1 of Article 1). In this law one, inter alia, consolidated such principles of local self-government like co-ordination of interests of municipality and the state, lawfulness and social justice, and economic independency (Article 2).

It was established in this law that the competence of self-government institutions shall be autonomous and that delegated by the state (Paragraph 1 of Article 14), as well as that the state functions shall be delegated to local authorities by this law and other laws (Paragraph 3 of Article 14). When implementing the independent competence, municipal councils enjoyed the powers, inter alia, to approve the general amount of allotments and wage funds for institutions and organisations which receive financing from the municipal budget (Item 13 of Article 15) and to adopt decisions on the establishment, reorganisation and liquidation of establishments, enterprises, and organisations maintained from the municipal budget funds (Item 16 of Article 15).

It was established in the Law on Local Self-Government that the basis of the economic activity of local power shall be municipal property—the property, which belongs to the municipality by right of ownership, the functions of owner whereof shall be implemented by the council according to laws (Paragraphs 1 and 2 of Article 21). The objects of municipal ownership had to be established by law (Paragraph 3 of Article 21); the right of ownership of could be acquired: by transferring state-owned objects to municipal ownership in accordance with the procedure established by law; in this case, there might be provisions, established by law, for the limitation on the disposal of such objects (Item 1 of Paragraph 4 of Article 21); by creating new objects of ownership (Item 2 of Paragraph 4 of Article 21); by concluding transactions or in other cases provided for in laws (Item 3 of Paragraph 4 of Article 21).

By the aforementioned law, inter alia, the function of taking care of development of the cultural level of residents and promotion of general and ethnic culture (Item 5 of Paragraph 4 of Article 17) was included in the competence of the mayor of municipality. To the competence of municipal council, inter alia, the function of control over the compliance with the requirements for the protection of landscape as well as architectural and cultural monuments was included (Item 6 of Paragraph 1 of Article 18).

The Law on Local Self-Government, which was adopted by the Seimas on 7 July 1994, was amended and supplemented more than once, however, the legal regulation that is subject to discussion remained basically unchanged until the Republic of Lithuania’s Law on Amending the Law on Local Self-Government, which was adopted by the Seimas on 12 October 2000 and by Article 1 whereof the Law on Local Self-Government (wording of 7 July 1994 with subsequent amendments and supplements) was set forth in a new wording, became effective.

20. The material basis of local self-government was strengthened also by means of the laws of that time.

In this context, one has to mention the Law “On the Assignment and Transfer of a Part of State Property into Municipal Ownership”, which was adopted by the Seimas on 20 December 1994 and became effective on 4 January 1995. By this law, a part of state-owned property was assigned to ownership of “municipalities of higher level” to carry out the functions established by law (Article 1); this state property had to be transferred to municipalities without compensation or consideration of the place of location thereof within the territory administered by one or another municipality (Paragraph 1 of Article 2). In the context of the constitutional justice case at issue it should be stated that by the aforementioned law one assigned to municipal ownership the state-owned property (basic equipment, material reserves, monetary funds, etc.), which was possessed, inter alia, by the following establishments of these municipalities: libraries (Item 3 of Paragraph 2 of Article 3); museums and galleries (Item 4 of Paragraph 2 of Article 3); establishments (clubs) for leisure activities (clubs, houses and centres of culture, houses of sports) (Item 5 of Paragraph 2 of Article 3); theatres and studios for theatrical performances, performances of choirs, and musical performances (Item 6 of Paragraph 2 of Article 3). Moreover, pursuant to this law the facilities for social purpose and other property, inter alia, buildings, in which institutions of self-government are located, or parts of such buildings and separate premises that are necessary to perform the functions of local self-government and which were in the balance of municipalities were assigned to municipal ownership (Item 2 of Paragraph 3 of Article 3). The Government had to transfer the property, which was assigned to municipal ownership, individually to every municipality through the persons authorised by government resolution (Paragraph 1 of Article 4); the right of ownership of municipality to the transferred real property had to come into effect from the legal registration thereof (Article 5).

21. On 20 December 1994, the Seimas adopted the Law “On the Implementation of the Republic of Lithuania’s Law ‘On the Assignment and Transfer of a Part of State Property into Municipal Ownership’”, which became effective on 4 January 1995. In this law it was established, inter alia, that, according to the Law “On the Assignment and Transfer of a Part of State Property into Municipal Ownership”, the property that was assigned to municipal ownership and inventoried must be transferred to municipalities upon the established procedure by 20 March 1995 (Article 1), and that municipalities have to carry out the legal registration of the accepted property by 24 March 1995 (Article 2).

22. It has to be mentioned that no other law regulating the transfer of state-owned property to municipalities existed at that time.

23. By Item 1.1. of the Government Resolution (No. 199) “On the Procedure of Transfer of Part of State Property to Municipal Ownership” of 7 February 1995 one approved the list of persons who were authorised by the Government to transfer to municipalities the state-owned property, which was assigned under the Law “On the Assignment and Transfer of a Part of State Property into Municipal Ownership” to municipal ownership, by Item 1.2 thereof one comprised the governmental commission for the disputes of municipalities and persons authorised by the Government concerning the transfer of a part of state-owned property to municipal ownership, and by Item 1.3 thereof one approved the procedure of transfer of the state-owned property, which was assigned to municipal ownership under the Law “On the Assignment and Transfer of a Part of State Property into Municipal Ownership” to municipalities.

24. In the context of the constitutional justice case at issue it has to be stressed that the property of the House of Artists of Lithuania (including the building at Daukanto sq. 3, Vilnius) at that time did not constitute property possessed by any municipal establishment, it was not included in the balance of municipalities as an object for social purpose or other property. It was mentioned that at that time the House of Artists of Lithuania was a state budgetary institution (the founder of which was the Ministry of Culture), and the property possessed by it was state-owned property. Thus, the property possessed by the House of Artists of Lithuania could not be assigned and transferred to municipal ownership under the Law “On the Assignment and Transfer of a Part of State Property into Municipal Ownership” that was adopted on 20 December 1994, either.

25. It should be noted that the Law “On the Assignment and Transfer of a Part of State Property into Municipal Ownership” and the Law “On the Implementation of the Republic of Lithuania’s Law ‘On the Assignment and Transfer of a Part of State Property into Municipal Ownership’” were changed and amended respectively by the Law “On Amending and Supplementing the Republic of Lithuania’s Law ‘On the Assignment and Transfer of a Part of State Property into Municipal Ownership’”, which was adopted by the Seimas on 5 July 1995, and the Republic of Lithuania’s Law “On Amending and Supplementing the Republic of Lithuania’s Law ‘On the Implementation of the Republic of Lithuania’s Law “On the Assignment and Transfer of a Part of State Property into Municipal Ownership”’”, which was adopted by the Seimas on 5 July 1995.

It should be mentioned also that by Item 7 of the Government Resolution (No. 1251) “On the Procedure of the Transferring of a Part of State Property into Municipal Ownership” of 20 September 1995, the Government Resolution (No. 199) “On the Procedure of the Transferring of a Part of State Property into Municipal Ownership” of 7 February 1995 was recognised as no longer effective. By Item 1.1 of the Government Resolution (No. 1251) “On the Procedure of the Transferring of a Part of State Property into Municipal Ownership” of 20 September 1995 one confirmed the list of persons who were authorised by the Government of the Republic of Lithuania to transfer to municipalities the state-owned property assigned to municipalities under the Republic of Lithuania’s Law “On the Assignment and Transfer of a Part of State Property into Municipal Ownership”, and by Item 1.2 thereof one approved the procedure of transferring the state-owned property to municipalities, to which is was assigned under the Republic of Lithuania’s Law “On the Assignment and Transfer of a Part of State Property into Municipal Ownership”. The Government Resolution (No. 1251) “On the Procedure of the Transferring of a Part of State Property into Municipal Ownership” of 20 September 1995 was amended by the Government Resolution (No. 899) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 1251) ‘On the Procedure of the Transferring of a Part of State Property into Municipal Ownership’ of 20 September 1995” of 29 July 1996 and by the Government Resolution (No. 261) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 1251) ‘On the Procedure of the Transferring of a Part of State Property into Municipal Ownership’ of 20 September 1995” of 23 March 1997.

It should be held that after amending and changing the aforementioned laws and government resolutions these legal acts could not be applied in regard to the House of Artists of Lithuania as a state establishment, the founder of which is the Ministry of Culture, and, according to them, the property possessed by the House of Artists of Lithuania could not be assigned and transferred to municipal ownership, it remained state-owned property.

26. While seeking to implement, inter alia, the provisions of Paragraph 2 of Article 42 of the Constitution, laws and other legal acts were adopted and amended at that time, thereby one regulated relations linked to the protection of cultural monuments and valuable objects.

In this context, it should be mentioned that, on 22 December 1994, the Seimas adopted the Law on Protection of Immovable Culturally Valuable Objects, which became effective on 1 February 1995. In this law one indicated its purpose—to guarantee the protection and increase of culturally valuable objects, as well as their transfer to the future generations (Paragraph 1 of Article 2). The established and assessed immovable values of culture had to be entered on the Republic of Lithuania Registry of Values of Culture (Paragraph 4 of Article 8). Municipalities were permitted to have local registries of immovable culturally valuable objects, about which they had to inform the Department of Cultural Heritage (Paragraph 6 of Article 8). It was established in the aforementioned law also that the Seimas, upon the submission by the Government, approves a list of historical, archaeological and cultural objects of state importance (Paragraph 1 of Article 10), that upon the proposal of the Department of Cultural Heritage and approval of the State Commission for the Protection of Cultural heritage, and upon the submission of the Minister of Culture, the Government declares the most significant immovable culturally valuable objects as cultural monuments (Paragraph 2 of Article 10).

27. In this context it should also be noted that on 24 January 1995 the Seimas adopted the Republic of Lithuania’s Law on the Implementation of the Law on Protection of Immovable Culturally Valuable Objects, which became effective on 27 January 1995. In Article 9 of this law it was established, inter alia, that the objects that are included into the list of historical and cultural monuments of republican and local importance, the List of Newly Established Historical and Cultural Monuments and the provisional registry of historical and cultural monuments must be protected as immovable culturally valuable objects until a decision is passed concerning their inclusion into the Republic of Lithuania Registry of Culturally Valuable Objects.

28. It has been mentioned that during the Soviet regime the so-called Former City Hall was included in the list of monuments of architecture of republican importance as a monument of architecture and history. It was never excluded from the list.

It should be held that during the period of validity of the Law on Protection of Immovable Culturally Valuable Objects and the Law on the Implementation of the Law on Protection of Immovable Culturally Valuable Objects the building of the City Hall was considered to be a monument of architecture and history.

In this context, it should be mentioned that, by the Order (No. 66) “On Inclusion of Objects into the Registry” of the Department of protection of Cultural Values at the Ministry of Culture of 8 July 1996, one included, inter alia, the City Hall, address Didžioji St. 31, Vilnius, in the List of Buildings of the Republic of Lithuania Registry of Immovable Culturally Valuable Objects and indicated the architectural and historical value of the building.

It should also be mentioned that, by the Government Resolution (No. 612) “On Declaring the Immovable Culturally Valuable Objects as Monuments of Culture” of 19 May 1998, the Vilnius City Hall was declared as a cultural monument. By the same government resolution one declared as a cultural monument the old town of Vilnius (where the aforementioned building is located) as well.

29. It was mentioned that on 28 October 1993 the Seimas adopted the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture”. This law was amended by the Republic of Lithuania’s Law “On Amending the Republic of Lithuania’s Law ‘On the Procedure of the Reorganisation and Liquidation of Establishments of Culture’”, which was adopted by the Seimas on 13 June 1995 and became effective on 28 June 1995.

The Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) was set forth as follows: “To set down that the establishments of culture that belong to the area of regulation by municipal councils may be reorganised or liquidated only upon written consent of the Ministry of Culture of the Republic of Lithuania”.

30. It should be held that at the time of entry into effect of the Law “On Amending the Republic of Lithuania’s Law ‘On the Procedure of the Reorganisation and Liquidation of Establishments of Culture’” the House of Artists of Lithuania was a state budgetary establishment (the founder of which was the Ministry of Culture), the property possessed by it was state-owned property, this establishment was not assigned to the area of regulation by municipal councils.

This means that at that time the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) could not be applied in regard to the House of Artists of Lithuania.

31. During the period which is subject to discussion, as already mentioned, the building at Didžioji St. 31, was the seat of the Art Museum of Lithuania, and the seat of the House of Artists of Lithuania was located at S. Daukanto sq. 3, Vilnius.

On 21 June 1995, the Government adopted the Resolution (No. 868) “On Placing the Office of the President of the Republic of Lithuania in the 19th Century Representative Palace Ensemble at S. Daukanto sq. 3/8, Totorių St. 28, and Universiteto St. 6, Vilnius”. By this government resolution one decided, inter alia: to transfer the 19th century representative palace ensemble, located at S. Daukanto sq. 3/8, Totorių St. 28, and Universiteto St. 6, Vilnius, with all the buildings, constructions and territory belonging to it from the balance of the House of Artists of Lithuania to the balance of the Office of the President of the Republic of Lithuania (Item 1); to transfer the architectural monument of republican importance—the ensemble of Chodkevičiai palace (Didžioji St. 4, Bokšto St. 5, Vilnius) to the balance of the Art Museum of Lithuania (first section of Item 2); to transfer the building of the Vilnius City Hall (Didžioji St. 31, Vilnius) from the balance of the Art Museum of Lithuania to the balance of the House of Artists of Lithuania. It was established also in the above-mentioned government resolution that the Vilnius City Hall, which is intended for the performance of functions of the House of Artists of Lithuania, is used also for the representative functions of the State of Lithuania and the Vilnius City Municipality (Item 3), that the Art Museum of Lithuania must move out from the building of the Vilnius City Hall (Didžioji St. 31, Vilnius) by 30 December 1995 (Item 5.3), and the House of Artists of Lithuania must move out from the buildings at S. Daukanto sq. 3/8, Totorių St. 28, and Universiteto St. 6, Vilnius by 30 December 1995 (Item 6).

32. It has been mentioned that during the period which is subject to discussion the House of Artists of Lithuania was a state budgetary establishment.

In this context, it should be noted that, on 5 December 1995, the Seimas adopted the Republic of Lithuania’s Law on Budgetary Establishments, which became effective on 1 January 1996. In Article 1 of this law one indicated the purpose thereof is to establish “the foundation, reorganisation, liquidation, possession, and funding of establishments that are fully or partially financed from the budget of the Republic of Lithuania and municipal budgets, as well as other essential moments related to their activity”. According to Article 7 of the aforementioned law, budgetary establishments are financed from the state budget or municipal budgets, depending on who is the founder. The budgetary establishment is a state or municipal institution, which is founded upon the procedure established by law, fully or partially financed from the budget and referred to as such in the founding statement and rules (Article 2); the legal basis for founding budgetary establishments that are financed from the budget of the State of Lithuania is the founding statement which may be adopted by the Seimas, the Government, ministries, governors of counties or other state institutions (Paragraph 1 of Article 3); the founding statements of budgetary establishments that are financed from municipal budgets are adopted by local municipal councils upon the procedure established by law (Paragraph 2 of Article 3); budgetary establishments are reorganised or liquidated by their founders upon the procedure established by the government, unless laws provide otherwise (Article 4); budgetary establishments are registered, re-registered and excluded from the register upon the procedure established by law (Article 13).

On 5 December 1995, the Seimas also adopted the Republic of Lithuania’s Law on the Implementation of the Law on Budgetary Establishments which became effective on 22 December 1995. In this law one established, inter alia, that the Government approves by 1 March 1996 the Procedure of the Reorganisation and Liquidation of Budgetary Establishments and Write-off as well as Sale of Their Material Values (Item 1), as well as guaranteed that by 1 July 1996 ministries, other state institutions and executive institutions of municipalities—founders of budgetary establishments—particularise, according to the Law on Budgetary Establishments, the regulations of their subordinate budgetary establishments (Item 2).

After coming into effect of the Law on Budgetary Institution and Law on the Implementation of the Law on Budgetary Establishments, decisions related to the foundation, reorganisation and liquidation, possession, financing and their other activity might be adopted pursuant to these laws, if no other laws regulated these relations in a different manner.

33. On 7 February 1996, the Government adopted the Resolution (No. 227) “On the Approval of the General Regulations of Establishments and Organisations of Culture that are Maintained from the Budget of the State of Lithuania and Municipal Budgets”, which became effective on 15 February 1996 and by which one approved the General Regulations of Establishments and Organisations of Culture that are maintained from the budget of the State of Lithuania and municipal budgets (Item 1), as well as prescribed that founders of all the establishments of culture that are maintained from the budget of the State of Lithuania and municipal budgets, by 1 July 1996 coordinate the regulations of establishments of culture with the General Regulations of Establishments and Organisations of Culture that are maintained from the budget of the State of Lithuania and municipal budgets (Item 2).

It is established in the General Regulations of Establishments and Organisations of Culture that are Maintained from the Budget of the State of Lithuania and Municipal Budgets, which were approved by the Government Resolution (No. 227) “On the Approval of the General Regulations of Establishments and Organisations of Culture that are Maintained from the Budget of the State of Lithuania and Municipal Budgets” of 7 February 1996, inter alia, that: they regulate the founding, registration, financing, possession, reorganisation and liquidation of establishments and organisations of culture which are partially or fully maintained from the budget of the State of Lithuania and municipal budgets and the basic activity of which is creation, spreading and protection of culture, as well as the rights and duties of cultural establishments (Item 1); cultural establishments are divided into national, republican, regional and local (municipal) ones (Item 5); every cultural establishment, irrespective of the fact whether it has the status of a legal person, acts according to the regulations that are approved by the founder (first section of Item 6); the regulations of national cultural establishments are approved by the Government (second section of Item 6); national cultural establishments are founded by the Ministry of Culture and a decision concerning the founding of a national cultural establishment or reorganisation of a cultural establishment into a national cultural establishment is adopted by the Government upon a submission of the Ministry of Culture (Item 7.1); republican cultural establishments are founded by the Ministry of Culture or other institutions of state administration (Item 7.2); regional cultural establishments are founded by county governors or the Ministry of Culture (Item 7.3); local (municipal) cultural establishments are founded by municipalities upon the procedure established by law (Item 7.4); it is considered that a cultural establishment has been founded, after the founder adopts a decision on its founding and approves the regulations of the establishment (Item 22); cultural establishments are registered by the Ministry of Culture upon the procedure established by the Regulations of the Registry of Cultural Establishments that are approved by the Government (Item 23).

The abovementioned general regulations prescribed that a cultural establishment may be reorganised or liquidated only upon receipt of permission of the Ministry of Culture (first section of Item 9), and that national cultural establishment is reorganised by government decision upon proposal of the Ministry of Culture (Item 10).

In the General Regulations of Cultural Establishments and Organisations that are Maintained from the Budget of the State of Lithuania and Municipal Budgets, which were approved by the Government Resolution (No. 227) “On the Approval of the General Regulations of Establishments and Organisations of Culture that are Maintained from the Budget of the State of Lithuania and Municipal Budgets” of 7 February 1996, reorganisation of a cultural establishment was defined as incorporation, division or merger, as well as change of type of activity and aims, which is related to transformation of organisation of work of the cultural establishment (second section of Item 9). In order to reorganise a cultural establishment the founder of the cultural establishment had to prepare a project of its reorganisation, submit it to the Ministry of Culture one month prior to the date of making a decision on reorganisation of the cultural establishment and get its permission; in the project of reorganisation one had to include the name and address of the establishment, purpose and way of reorganisation, time and basis of reorganisation, property assessment, takeover of obligations and their terms, basic tasks and functions of the establishment, which is being reorganised or is already reorganised; together with the project of reorganisation one had to submit draft regulations of the cultural establishment, which would be effective after the reorganisation (first section of Item 11). The Ministry of Culture had to adopt a decision on reorganisation of the establishment within 2 weeks from the date of receipt of the application (first paragraph of Item 12); the founder had the right to appeal against the refusal of the Ministry of Culture to permit the reorganisation of the cultural establishment (second section of Item 12).

In the General Regulations of Cultural Establishments and Organisations that are Maintained from the Budget of the State of Lithuania and Municipal Budgets, which were approved by the Government Resolution (No. 227) “On the Approval of the General Regulations of Establishments and Organisations of Culture that are Maintained from the Budget of the State of Lithuania and Municipal Budgets” of 7 February 1996, liquidation of a cultural establishment was defined as termination of activity of the establishment (Item 13); in order to liquidate a cultural establishment the founder of the cultural establishment had to prepare a project of its liquidation, submit it to the Ministry of Culture 1.5 months prior to the date of making decision on liquidation of the cultural establishment and get its permission to liquidate the cultural establishment; in the project of liquidation one had to include the name and address of the establishment, time and basis of the liquidation, as well as property assessment (first section of Item 14); the Ministry of Culture had to make a decision on liquidation of the cultural establishment within a month from the date of receipt of an application; if no consent to the liquidation of the cultural establishment was given, the applicant had to be informed about the reasons of this decision (Item 15); the founder had the right to appeal against the refusal of the Ministry of Culture to permit the liquidation of the cultural establishment (Item 15).

34. The House of Artists of Lithuania is a cultural establishment. It was mentioned that the founder of the House of Artists of Lithuania was the Ministry of Culture.

It has been mentioned that by Order of the Ministry of Culture and Education No. 183 “On the Regulations of the House of Artists of Lithuania” of 22 February 1993 one approved the Regulations of the House of Artists of Lithuania. According to the Government Resolution (No. 227) “On the Approval of the General Regulations of Establishments and Organisations of Culture that are Maintained from the Budget of the State of Lithuania and Municipal Budgets” of 7 February 1996, the founders of all cultural establishments that were maintained from the budget of the State of Lithuania and municipal budgets (thus, the House of Artists of Lithuania included) had to coordinate by 1 July 1996 the regulations of respective cultural establishments with the General Regulations of Establishments and Organisations of Culture that are Maintained from the Budget of the State of Lithuania and Municipal Budgets.

By the Order of the Ministry of Culture (No. 186) “On the House of Artists of Lithuania” of 15 May 1996 one recognised the Order of the Ministry of Culture and Education (No. 183) “On the Regulations of the House of Artists of Lithuania” of 22 February 1993 as no longer effective and approved new regulations of the House of Artists of Lithuania.

According to the new Regulations of the House of Artists of Lithuania the House of Artists of Lithuania is a budgetary establishment, the founder of which is the Ministry of Culture (Item 2), its seat is located in Didžioji St. 31, Vilnius (Item 3), its financed from the budget of the State of Lithuania (item 8). The following is established in these regulations: the basic objective of the House of Artists of Lithuania is to popularise art and to organise high quality events (Item 6); in order to achieve this objective the House of Artists of Lithuania, inter alia, organises various cultural events, popularise the newest and most important achievements, forums, conferences on creative practise and theory of art, propagates art of Lithuania and other countries, develops international relations between artists, organises meetings of Lithuanian artists with fellow-countrymen residing abroad (Item 7); the Council of the House of Artists of Lithuania which comprises 7 members and is made in equal parts of members elected at the general meeting of the staff and representatives appointed by the administration, and the founder of the House of Artists appoints its representative to the council, participates in the possession of the House of Artist of Lithuania with an advisory vote (Item 15).

35. It should be held that according to the General Regulations of Cultural Establishments and Organisations that are Maintained from the Budget of the State of Lithuania and Municipal Budgets, which were approved by the Government Resolution (No. 227) “On the Approval of the General Regulations of Establishments and Organisations of Culture that are Maintained from the Budget of the State of Lithuania and Municipal Budgets” of 7 February 1996 and new Regulations of the House of Artists of Lithuania that were approved by the Order of the Ministry of Culture (No. 186) “On the House of Artists of Lithuania” of 15 May 1996, the House of Artists of Lithuania was considered to be a republican cultural establishment. It could be reorganised or liquidated only its founder, the Ministry of Culture. Property possessed by the House of Artists of Lithuania, including the building at Didžioji St. 31, Vilnius, was state-owned property.

36. When implementing the Republic of Lithuania’s Law on the Implementation of the Law on Budgetary Establishments, according to which the Government had, inter alia, to approve the Procedure of the Reorganisation and Liquidation of Budgetary Establishments, the Government on 10 May 1996 adopted the Resolution (No. 554) “On the Approval of the Procedure of the Reorganisation and Liquidation of Budgetary Establishments”, which became effective on 18 May 1996 and by which one approved the Procedure of the Reorganisation and Liquidation of Budgetary Establishments.

It is established in Item 1 of the aforementioned procedure that it is applicable to all state and municipal budgetary institutions, and in Item 5 that budgetary establishments are reorganised or liquidated upon the decision of the founders, if the laws do not provide differently.

The following was established in the Procedure of the Reorganisation and Liquidation of Budgetary Establishments that was approved by the Government Resolution (No. 554) “On the Approval of the Procedure of the Reorganisation and Liquidation of Budgetary Establishments” of 10 May 1996: budgetary establishments cease to exist by way of reorganisation (when they are joined by merger, or divided, or incorporated into other establishments, etc.) (Item 3); in the cases established by law the founder of the budgetary establishment, who intends to reorganise the establishment, has to prepare the project of reorganisation and submit it to the respective ministry, county governor or other state institution (Item 6); in the project of reorganisation of budgetary establishment one must indicate the name and address of the establishment, the purpose and way of reorganisation, the phases and time of reorganisation, its basis, property assessment, the procedure of property assessment and inventory, property distribution, as well as accepting for storage of book-keeping and financial accountability documents, takeover of obligations and their terms, the basic tasks and functions of the reorganised establishment as well as its structure; the draft regulations of the cultural establishment which would be effective after the reorganisation must be attached to this project (Item 7); the deadline for submitting the project of reorganisation of budgetary establishments is set by a respective ministry, county governor or other state institution (Item 7).

It is established in the Procedure of the Reorganisation and Liquidation of Budgetary Establishments that was approved by the Government Resolution (No. 554) “On the Approval of the Procedure of the Reorganisation and Liquidation of Budgetary Establishments” of 10 May 1996 that budgetary establishments are liquidated when their activity is fully terminated (Item 4); in order to liquidate the establishment the founder of the budgetary establishment must prepare the project of its liquidation, submit it in the cases established by law to a respective ministry, county administrator or other state institution and get their permission; in the project of liquidation one must indicate the name and address of the establishment, basis and term of liquidation, property assessment, the procedure of property assessment and inventory, property distribution, as well as accepting for storage of book-keeping and financial accountability documents (Item 10); the deadline for submitting the project of liquidation of budgetary establishments is set by a respective ministry, county governor or other state institution (Item 10); a liquidation commission is set up in order to liquidate a budgetary establishment, it is formed and its chairperson is appointed by the founder (Item 11); the budgetary establishment acquires the status of the establishment under liquidation as from the date of making a decision to liquidate it; one informs about the liquidation of the establishment in the most popular dailies or other means of public information (Item 11).

In Item 15 of the aforementioned procedure one establishes the procedure, upon which decisions concerning the change of subordination of budgetary establishments are made. In case an establishment is transferred from the sphere of regulation by one ministry, other state institution and county to the sphere of regulation by another ministry, state institution and county, a decision on the change of its subordination is made by the Government upon the submission of the institutions concerned, which is coordinated with the Ministry of Finance (Item 15.1); in case a budgetary establishment is transferred from the sphere of regulation of the municipality of a certain area or city to the sphere of regulation of the municipality of another area or city, in order to perform the delegated functions of the state, a decision concerning the change of its subordination is made by the Government upon the submission of municipalities of cities or areas, which is coordinated with the Ministry of Finance (Item 15.2.1); or in order to perform independent functions that are transferred to municipalities, a decision concerning the change of its subordination is made upon the procedure established by law (Item 15.2.2); in case a budgetary establishment is transferred from the sphere of regulation by the state to the sphere of regulation by a municipality and from the sphere of regulation by a municipality to the sphere of regulation by the state, a decision concerning the change of its subordination is made upon the procedure established by law (Item 15.3).

37. It has to be noted that in the Law on Budgetary Establishments there was no provision regulating the change of subordination of budgetary establishments the purpose of which is to take care of development of culture (inter alia, establishments that provide services of public culture) from the sphere of regulation by the state to the sphere of regulation by a municipality and from the sphere of regulation by a municipality to the sphere of regulation by the state. Other laws that were effective at that time contained no provisions regulating this issue, too.

Meanwhile, the Procedure of the Reorganisation and Liquidation of Budgetary Establishments, which was approved by the Government Resolution (No. 554) “On the Approval of the Procedure of the Reorganisation and Liquidation of Budgetary Establishments” of 10 May 1996, contained separate chapters “Reorganisation and Liquidation of Establishments” and “Change of Subordination of Establishments”.

This means that in the Procedure of the Reorganisation and Liquidation of Budgetary Establishments, which was approved by the Government Resolution (No. 554) “On the Approval of the Procedure of the Reorganisation and Liquidation of Budgetary Establishments” of 10 May 1996, the change of subordination of budgetary establishments, inter alia, the change of their subordination from the sphere of regulation by the state to the sphere of regulation by a municipality and from the sphere of regulation by a municipality to the sphere of regulation by the state is considered to be an independent legal institute, which is not covered by the institutes of reorganisation and liquidation of budgetary establishments.

38. The Constitution establishes the constitutional principle of a state under the rule of law. The essence of this principle is the rule of law. The constitutional imperative of the rule of law means that freedom of state power is limited by law, to which all the subjects of legal relations, including the law-making subjects, must obey (the Constitutional Court’s ruling of 13 December 2004).

The Government is bound by its own resolutions (the Constitutional Court’s ruling of 28 June 2001). The Government must follow the requirements set therein until the government resolution is amended or annulled.

39. Thus, the provision of Item 15.3 of the Procedure of the Reorganisation and Liquidation of Budgetary Establishments, which was approved by the Government Resolution (No. 554) “On the Approval of the Procedure of the Reorganisation and Liquidation of Budgetary Establishments” of 10 May 1996, that in case a budgetary establishment is transferred from the sphere of regulation by the state to the sphere of regulation by a municipality (as well as from the sphere of regulation by a municipality to the sphere of regulation by the state), a decision concerning the change of its subordination is made upon the procedure established by law, means that until a respective law is adopted, no state institution, including the Government, may adopt a decision to transfer any budgetary establishment from the sphere of regulation by the state to the sphere of regulation by a municipality (as well as from the sphere of regulation by a municipality to the sphere of regulation by the state).

In the context of the case of the constitutional justice at issue, it should be noted that at the time when the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997, the compliance of Item 2.4 of which with the Constitution is impugned by the petitioner, was adopted and became effective, no law regulating the transfer of budgetary establishments from the sphere of regulation by the state to the sphere of regulation by a municipality was adopted.

40. On 10 March 1997, the Council of Vilnius City adopted the Decision (No. 225) “On the Return of Vilnius City Hall”, whereby it was decided to request the Government to return the building of the Vilnius City Hall (Didžioji St. 31) to the Vilnius City Municipality.

41. By letter No. 09-01-414 of 13 March 1997, the Mayor of Vilnius City addressed the Government with a request to discuss the possibility of returning the historical Vilnius City Hall (Didžioji St. 31) to the Vilnius City Municipality. The request was based on the fact that from the date of the construction of the Vilnius City Hall till the 19th century it was the seat of the Magistrate, and that the Vilnius City Municipality “is, from the historical point of view, the true and only heir to the Vilnius City Hall”. It is especially stressed in the latter that the Vilnius City Hall will retain the function of an establishment meant for cultural purposes.

42. It should be held that the Council of Vilnius City and the Mayor of Vilnius City addressed the Government with the request to transfer to the Vilnius City Municipality not the House of Artists of Lithuania—a cultural establishment financed from the budget of the state—but the building at Didžioji St. 31, Vilnius, in which the seat of the above-mentioned state establishment is located.

43. It has been mentioned that on 8 November 1997 the Government adopted the Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania”, by which, inter alia, the Ministry of Culture was commissioned to transfer by 1 January 1998 the functions of the founder of the House of Artists of Lithuania to the Vilnius City Municipality (Item 1), and the Vilnius City Municipality was commissioned by 1 January 1998 to take over from the House of Artists of Lithuania the building at Didžioji St. 31, Vilnius, for possession and use by right of trust as state-owned property (Item 2.3), and while discharging the functions of the founder of the House of Artists of Lithuania, not to change the purpose of the House, type of its activity nor its status, and to document this in a trilateral agreement on cooperation between the Vilnius City Board, the Ministry of Culture and the House of Artists of Lithuania (Item 2.4). This Government resolution became effective on 6 December 1997.

44. The provision of Item 1 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 that the Ministry of Culture has to transfer by 1 January 1998 the functions of the founder of the House of Artists of Lithuania to the Vilnius City Municipality means that the Government decided to change the subordination of the House of Artists of Lithuania: the House of Artists of Lithuania had to be converted from a state budgetary establishment—republican cultural establishment to a municipal budgetary establishment—local (municipal) cultural establishment.

45. The provision of Item 2.3 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 that the Vilnius City Municipality has to take over from the House of Artists of Lithuania the building at Didžioji St. 31, Vilnius, for possession and use by right of trust as state-owned property means by 1 January 1998 that the aforementioned building remained state-owned property and the Vilnius City Municipality had the right to possess and use it by right of trust. At the time when the Government resolution became effective, the above-indicated item of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 could not be construed as the one which creates legal preconditions for transferring the aforementioned building to the ownership of the Vilnius City Municipality.

46. The provision of Item 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 that while discharging the functions of the founder of the House of Artists of Lithuania, the Vilnius City Municipality may not change the purpose of the House, type of its activity nor its status, and must document this in a trilateral agreement on cooperation between the Vilnius City Board, the Ministry of Culture and the House of Artists of Lithuania, means that the Government, even if it decided that the House of Artists of Lithuania had to be converted from a state budgetary establishment into a municipal budgetary establishment, consolidated status quo, i.e. the purpose of the House of Artists of Lithuania, type of its activity and its status could not be changed in comparison to the purpose, type of activity and status that were in place prior to adoption of this government resolution, by which one decided that the rights of the founder of the House of Artists of Lithuania must be transferred to the Vilnius City Municipality. Thus, the House of Artists of Lithuania had to continue being a budgetary cultural establishment; its basic purpose had to continue being popularisation of art and organisation of events of good quality; in order to achieve this purpose the House of Artists of Lithuania had to continue, inter alia, organising various cultural events, popularising the newest and most important achievements in art, organising forums and conferences on the issues of creative practice and theory of art, propagating art of Lithuania and other countries, developing international relations of artists, organising meetings of Lithuanian artists with fellow country-men residing abroad; the Council of the House of Artists of Lithuania had to continue contributing to the possession of the House of Artists of Lithuania with an advisory vote; etc.

The provision of Item 2 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 “To commission the Vilnius City Municipality <…> while discharging the functions of the founder of the House of Artists of Lithuania not to change the purpose of the House, type of its activity and its status, and document this in a trilateral agreement on cooperation between the Vilnius City Board, the Ministry of Culture and the House of Artists of Lithuania” means that the Vilnius City Municipality has to accept an obligation by the aforementioned trilateral agreement not to take any actions and not to adopt any decisions, by which the purpose of the House of Artists of Lithuania, type of its activity and its status could be changed or preconditions could be created for changing the purpose of the House of Artists of Lithuania, type of its activity and its status in the future.

The formula “trilateral agreement on cooperation” of Item 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 implies that activity of the House of Artists of Lithuania must be based on cooperation between the Vilnius City Municipality, the Ministry of Culture and the House of Artists of Lithuania, and that the parties to the above-mentioned cooperation agreement may agree on the forms and procedures of cooperation. Such cooperation must be aimed at developing the activity of the House of Artists of Lithuania in a way, which would ensure the continuity of the entrenched in this government resolution purpose of the House of Artists of Lithuania, type of its activity and its status. The provision of the above-mentioned government resolution concerning the trilateral agreement on cooperation between the Vilnius City Board, the Ministry of Culture and the House of Artists of Lithuania should be regarded as an additional guarantee that the status quo of the House of Artists of Lithuania will not be changed—its purpose, type of activity and status will remain the same as they were at the time of adoption of this government resolution.

47. It should be noted that at the time when the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 was adopted and became effective, the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) was effective, according to which cultural establishments that belonged to the sphere of regulation by municipal councils could be reorganised or liquidated only upon written consent of the Ministry of Culture.

Having held that the Government by the Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 decided to change the subordination of the House of Artists of Lithuania and that the House of Artists of Lithuania had to be converted from a state budgetary establishment—a republican cultural establishment—to a municipal budgetary establishment, a local (municipal) cultural establishment, it should also be held that by the aforementioned resolution of the Government this establishment was assigned (transferred) from the sphere of regulation by the state to the sphere of regulation by the Council of the Vilnius City Municipality.

The prohibition imposed on the Vilnius City Municipality to change the status of the House of Artists of Lithuania, which is consolidated in Item 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997, means also that the Vilnius City Municipality as the founder of the House of Artists of Lithuania had no right to liquidate the House of Artists of Lithuania, thus, it had no right to apply to the Ministry of Culture with the request to permit the liquidation of the House of Artists of Lithuania as well. If the Vilnius City Municipality decided nevertheless to address the Ministry of Culture with such a request, according to the aforementioned item of the government resolution, the Ministry of Culture may not grant such permission (although, according to the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) it had the power to decide whether to consent to the liquidation of the House of Artists of Lithuania as a cultural establishment, which was assigned to the sphere of regulation by the Council of the Vilnius City Municipality).

IV

On the compliance of the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) with Paragraph 2 of Article 120 of the Constitution.

1. It has been mentioned that it was established in the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) that cultural establishments that belong to the sphere of regulation by municipal councils may be reorganised or liquidated only upon written consent of the Ministry of Culture.

2. It was held in this ruling of the Constitutional Court that:

Paragraph 2 of Article 120 of the Constitution wherein it is prescribed that municipalities act freely and independently within their competence, which shall be established by the Constitution and laws, and Paragraph 3 of Article 119 of the Constitution, wherein it is established, inter alia, that procedure of activity of self-government institutions is established by law implies also that the legislature has the duty to set by law the procedure of establishment of municipal establishments or enterprises, and municipal councils must establish municipal establishments or enterprises according to the requirements set in laws; that the right of municipal councils to establish various accountable to them institutions—municipal establishments or enterprises that are necessary to municipalities in order to perform the functions transferred to them—implies also their right to liquidate, reorganise or upon the established procedure in any other way restructure the aforementioned institutions (irrespective of the way how such liquidation, reorganisation or restructuring in any other way of municipal establishments or enterprises is called in laws or substatutory legal acts, including decisions of respective municipal councils);

the legislature, while paying heed to the Constitution, may establish by law certain conditions and/or procedure, which must be followed by municipalities when they implement their rights of the founder of institutions or enterprises that are founded by them, moreover, one may set by law other restrictions that restrict to a certain extent the rights of municipalities as the founders of respective establishments or enterprises;

the transfer of rights of the founder of establishments or enterprises, which were held previously by certain state institutions, does not mean that one may not establish by law certain conditions and/or procedures, which must be followed by municipalities when the exercise of the rights of the founder of the above-mentioned establishments or enterprises transferred to them, moreover, this does not mean that one may not establish by law other limitations that restrict to a certain extent the rights of municipalities as the founders of establishments or enterprises that are newly assigned to them; when establishing the above-mentioned conditions, procedures or other limitations, one must not violate the interests of municipalities and pay heed to the entrenched in the Constitution independence and freedom of activity of municipalities within the competence established by the Constitution and laws, as well as principles of co-ordination of interests of municipalities and the state;

the legislature, while paying heed to the Constitution, may establish by law certain conditions and/or procedure, which must be followed by municipalities when they implement their rights of the founder of establishments or enterprises (inter alia, the establishments or enterprises that provide services of public culture) that are founded by them and that contribute to the development of culture, as well as other limitations that restrict to a certain extent the rights of municipalities as the founders of respective establishments or enterprises and guarantee that municipalities will properly perform the function of the support and protection of culture which is transferred to them (to the established extent);

when a respective state institution transfers the establishment or enterprise of culture to the municipal level (inter alia, having transferred the rights of the founder to municipality), the state may and, in certain cases must, establish by law various restrictions applicable to the municipality, which must be followed by the latter when it exercises the rights of the founder, inter alia, when it adopts decisions on the reorganisation, liquidation or any other restructuring of establishments or enterprises that are transferred to municipalities; in certain cases, if the state establishes no such restrictions applicable to municipalities, the performance of the function of support and protection of culture, which is transferred to the municipal level, would become more difficult or municipalities could even refuse to a certain extent the performance of the function of support and protection of culture, which is set as their function by law; this restriction of independence of municipalities originates from the Constitution and in itself should not be considered as disregard of interests of municipalities; by this restriction originating from the Constitution one ensures the co-ordination of interests of municipality and the state.

3. By the requirement established in the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) that prior to the liquidation or reorganisation of cultural establishments belonging to the sphere of their regulation municipal councils must receive written consent of the Ministry of Culture one seeks to attain a publicly important objective—to ensure the execution of the support and protection of culture as the function of the state that is consolidated in the Constitution, to ensure the preservation of public interest, the existence of the system of institutions that are aimed at taking care of the development of culture (inter alia, the establishments or enterprises that provide services of public culture) and implementation of national policy of culture.

By such legal regulation one does not fail to pay heed to the interests of municipality nor are the constitutional principles of independence and freedom of activity of municipalities according to the competence defined in the Constitution and laws, the principles of co-ordination of the interests of municipalities and the state, as well as the constitutional concept of local self-government, violated.

4. Taking account of the aforementioned arguments, the conclusion should be drawn that the Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) was not in conflict with Paragraph 2 of Article 120 of the Constitution.

V

On the compliance of Items 1, 2.3 and 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 with Paragraph 2 of Article 94 of the Constitution and the constitutional principle of a state under the rule of law.

1. It has been mentioned that by the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 8 November 1997, inter alia, the Ministry of Culture was commissioned to transfer the functions of the founder of the House of Artists of Lithuania to the Vilnius City Municipality by 1 January 1998 (Item 1), and the Vilnius City Municipality was commissioned to take over from the House of Artists of Lithuania the building at Didžioji St. 31, Vilnius, for possession and use by right of trust as state-owned property by 1 January 1998 (Item 2.3), and while discharging the functions of the founder of the House of Artists of Lithuania, not to change the purpose of the House, type of its activity and its status, and to document this in a trilateral agreement on cooperation between the Vilnius City Board, the Ministry of Culture and the House of Artists of Lithuania (Item 2.4).

2. It was held in this ruling of the Constitutional Court that:

assignment of any state institution or enterprise to a respective municipality, inter alia, the transfer of the rights of the founder of this institution (establishment or enterprise), through which functions of the state are performed, to the municipality must be based on the law; the established by such law legal regulation, which is followed by the state institution enjoying the powers to issue legal acts, according to which a respective state institution (establishment or enterprise), through which functions of the state are performed, is assigned to the municipality, inter alia, the rights of the founder of this institutions (establishment or enterprise), through which functions of the state are performed, are transferred, may be general (lex generalis) or special (lex specialis);

the requirement to regulate relations of changing the subordination of state institutions (establishments or enterprises) the purpose of which is to take care of the development of culture (inter alia, the establishments or enterprises that provide public services) by law originates from the Constitution.

3. The Government, inter alia, executes laws (Item 2 of Article 94 of the Constitution), administers the affairs of the country (Item 1 of Article 94 of the Constitution).

It was held that the constitutional principle of a state under the rule of law and the constitutional imperative of the rule of law mean that freedom of state power is limited by law, to which all the subjects of legal relations, including the law-making subjects, must obey. It was held also that the Government is bound by its own resolutions and the Government must follow the requirements set therein until the government resolution is amended or annulled.

4. When deciding whether Items 1, 2.3 and 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 are not in conflict with the Constitution, it should be noted that at the time of the adoption and coming into effect of the aforementioned Government resolution the Government Resolution (No. 554) “On the Approval of the Procedure of the Reorganisation and Liquidation of Budgetary Establishments” of 10 May 1996 was effective, by Item 15.3 of the Procedure of the Reorganisation and Liquidation of Budgetary Establishments that was approved thereby one prescribed that in case the budgetary establishment is transferred from the sphere of regulation by the state to the sphere of regulation by a municipality and from the sphere of regulation by a municipality to the sphere of regulation by the state, a decision concerning the change of its subordination is made upon the procedure established by law.

It has been held in this ruling of the Constitutional Court that:

at the time when the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 was adopted and went into effect, in the Law on Budgetary Establishments there was no provision regulating the change of subordination of budgetary establishments the purpose of which is to take care of development of culture (inter alia, establishments that provide services of public culture) from the sphere of regulation by the state to the sphere of regulation by a municipality and from the sphere of regulation by a municipality to the sphere of regulation by the state; other laws that were effective at that time contained no provisions regulating this issue, either;

the provision of Item 15.3 of the Procedure of the Reorganisation and Liquidation of Budgetary Establishments which was approved by the Government Resolution (No. 554) “On the Approval of the Procedure of the Reorganisation and Liquidation of Budgetary Establishments” of 10 May 1996 that in case a budgetary establishment is transferred from the sphere of regulation by the state to the sphere of regulation by a municipality (as well as from the sphere of regulation by a municipality to the sphere of regulation by the state), a decision concerning the change of its subordination is made upon the procedure established by law means also that until a respective law is adopted, no state institution, including the Government, may adopt a decision to transfer any budgetary establishment from the sphere of regulation by the state to the sphere of regulation by a municipality (as well as from the sphere of regulation by a municipality to the sphere of regulation by the state);

at the time when the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 was adopted and became effective, the compliance of Item 2.4 of which with the Constitution is impugned by the petitioner, no law regulating the transfer of budgetary establishments from the sphere of regulation by the state to the sphere of regulation by a municipality was adopted.

5. It has been held that by the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 one decided to change the subordination of the House of Artists of Lithuania and they had to be transformed from a state budgetary establishment, a republican cultural establishment, into a municipal budgetary establishment, a local (municipal) institution, as well as that by the aforementioned Government resolution this establishment was transferred from the sphere of regulation by the state to the sphere of regulation by the Council of the Vilnius City Municipality.

Thus, the Government, which by its Resolution 1320 “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 commissioned the Ministry of Culture to transfer to the Vilnius City Municipality the rights of the founder of the House of Artists of Lithuania (Item 1) and prescribed that the Vilnius City Municipality becomes the founder of the House of Artists of Lithuania (Items 1 and 2.4), i.e. which changed the subordination of the House of Artists of Lithuania and transferred them from the sphere of regulation by the state to the sphere of regulation by the Council of the Vilnius City Municipality, failed to follow the requirements that it itself had set—the provision of Item 15.3 of the Procedure of the Reorganisation and Liquidation of Budgetary Establishments that was approved by the Government Resolution (No. 554) “On the Approval of the Procedure of the Reorganisation and Liquidation of Budgetary Establishments” of 10 May 1996 that in case a budgetary establishment is transferred from the sphere of regulation by the state to the sphere of regulation by a municipality, a decision concerning the change of its subordination is made upon the procedure established by law.

6. It was mentioned that immediately after the Constitution became effective, a legal situation occurred where most of the laws establishing the government powers to decide by resolutions issues of administration of the country have not been adopted yet and the Government used to adopt resolutions which were not directly based on laws establishing respective powers of the Government as well. In addition, it has been mentioned that when deciding in the cases of constitutional justice whether such government resolutions are not in conflict with the Constitution, one should also take into account the fact whether respective government resolutions were not caused by the necessity to immediately implement some provisions of the Constitution, despite the fact that their implementation, thus, the government powers in respective areas, had not been regulated by law yet.

It was held also that the aforementioned transitional period, when the said specific legal situation was in place, is long over.

It should be noted in the context of the constitutional justice case at issue that this period had expired already prior to the adoption of the Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 by the Government.

It should also be mentioned that the issues which were decided by the aforementioned government resolution are not to be considered the decisions caused by the necessity for the Government, which under the Constitution enjoys the powers to administer state affairs, to immediately implement some provisions of the Constitution.

7. Thus, at the time of the adoption of the Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 the Government had no power directly arising from the law or from the Constitution to commission the Ministry of Culture to transfer to the Vilnius City Municipality the functions of the founder of the House of Artists of Lithuania, nor to stipulate that the Vilnius City Municipality becomes the founder of the House of Artists of Lithuania (to change the subordination of the House of Artists of Lithuania and transfer it from the sphere of regulation by the state to the sphere of regulation by the Council of the Vilnius City Municipality).

8. By such legal regulation established in Items 1 and 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 one failed to pay heed to the constitutional principle of a state under the rule of law and the requirement of Item 2 of Article 94 of the Constitution that the Government executes laws.

9. Taking account of the above-mentioned arguments, it should be concluded that Items 1 and 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 are in conflict with Item 2 of Article 94 of the Constitution and the constitutional principle of a state under the rule of law.

10. It has been mentioned that it is established in Item 2.3 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 that the Vilnius City Municipality must take over from the House of Artists of Lithuania the house located at Didžioji St. 31, Vilnius for possession and use as state-owned property under the right of trust by 1 January 1998.

It has been mentioned also that the impugned Item 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 regulates relations linked to the House of Artists of Lithuania and it is inseparably related to Items 1 and 2.3 of this government resolution.

11. After it was consolidated in Items 1 and 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 that the Vilnius City Municipality becomes the founder of the House of Artists of Lithuania, preconditions were created for stipulating that the Vilnius City Municipality must take over from the House of Artists of Lithuania the house located at Didžioji St. 31, Vilnius, in which the seat of the House of Artists of Lithuania is placed, for possession and use as state-owned property under the right of trust. The provision with this particular content is consolidated in Item 2.3 of this government resolution.

It was held in this ruling of the Constitutional Court that Items 1 and 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 are in conflict with Item 2 of Article 94 of the Constitution and the constitutional principle of a state under the rule of law.

Having held this, it should also be held that Item 2.3 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 is in conflict with Item 2 of Article 94 of the Constitution and the constitutional principle of a state under the rule of law as well.

12. Having held that Items 1, 2.3 and 2.4 of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 are in conflict with Item 2 of Article 94 of the Constitution and the constitutional principle of a state under the rule of law, the Constitutional Court will not investigate in this case as to whether these items are not in conflict with Paragraph 2 of Article 120 of the Constitution, Paragraph 1 of Article 3, Paragraphs 2 and 5 of Article 4, and Paragraph 1 of Article 6 of the European Charter of Local Self-Government, as well as Item 4 of Paragraph 1 of Article 4 and Item 13 of Paragraph 1 of Article 6 of the Republic of Lithuania’s Law on Local Self-Government.

VI

1. After coming into effect of the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997, the legal regulation of relations of possession of property owned by the state and municipalities, its use and disposal, which was established by law and government resolutions, was changed.

During this period various state institutions and institutions of the Vilnius City Municipality (their officials) performed actions and adopted decisions related to the House of Artists of Lithuania and the building at Didžioji St. 31, Vilnius, in which the seat of the House of Artists of Lithuania is located.

2. It is clear from the material of the case, inter alia, that:

the building at Didžioji St. 31, Vilnius was registered as the one, which belongs under the right of ownership to the Vilnius City Municipality. Later the Vilnius City Municipality founded a budgetary establishment, the Vilnius City Hall, and on 18 December 1998 by its decision No. 301 approved the Regulations of the Vilnius City Hall. After that, on 13 December 1999, the Council of the Vilnius City Municipality adopted the Decision (No. 439) “On Transfer and Use of the Building at Didžioji St. 31 to the Vilnius City Hall”, by Item 1 of which one transferred to the budgetary establishment “Vilnius City Hall” the building at Didžioji St. 31, Vilnius, to be possessed and used under the right of trust, and by Item 3 the possessor of this budgetary establishment was commissioned “to allocate premises under the principle of use for the permanent activity of the House of Artists of Lithuania”. However, at present the Vilnius City Hall, which possesses and uses the aforementioned building, is no longer a municipal budgetary establishment, but a public establishment:

on 28 November 2001, the Council of the Vilnius City Municipality adopted the Decision (No. 444) “On Liquidation of the Budgetary Establishment ‘The House of Artists of Lithuania’”, by Item 1 of which one decided to liquidate the budgetary establishment “The House of Artists of Lithuania”, and by Item 2 of which the Vilnius City Board was authorised “to perform all the actions related to the liquidation of the establishment and its exclusion from the registry”. It should be held that at present the House of Artists of Lithuania is basically inactive as an establishment.

3. It was mentioned in this ruling of the Constitutional Court that the Constitution does not tolerate such change of subordination of a state institution (establishment or enterprise), inter alia, an institution contributing to the development of culture, when its possession is transferred from the system of state administration to self-government, if the transfer of this institution is only a cover for transferring the state-owned property, related to the aforementioned institution and/or possessed by, inter alia, the said institution or its founder—a state institution (establishment or enterprise)—to be possessed by the municipality.

It was mentioned that the building at Didžioji St. 31, Vilnius is the historical Vilnius City Hall, a monument of culture. It is obvious from the material of the case that this building belonged under the right of ownership to the state not only at the time when the Government Resolution (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 was adopted and became effective, but even some time afterwards, and on 29 December 1997 it was registered as the one which belongs to the Vilnius City Municipality under the right of ownership.

It should be stressed that the building at Didžioji St. 31, Vilnius, could become ownership of the Vilnius City Municipality only on the basis of the law.

The Constitution does not tolerate any decisions or actions, by which such an object of culture like the building of the Vilnius City Hall (which, inter alia, is of historical architectural value) could be transferred from state ownership to municipal ownership on the basis other than the law.

The Constitution does not tolerate also any decisions or actions, by which preconditions are created for such cultural object as the building of the Vilnius City Hall to become eventually ownership of other persons instead of the state or municipality.

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 gives the following

ruling:

1. To recognise that the Republic of Lithuania’s Law “On the Procedure of the Reorganisation and Liquidation of Establishments of Culture” (wording of 13 June 1995) was not in conflict with the Constitution of the Republic of Lithuania.

2. To recognise that Items 1, 2.3 and 2.4 of the Resolution of the Government of the Republic of Lithuania (No. 1320) “On the House of Signatories to the Act of Independence of Lithuania and the House of Artists of Lithuania” of 28 November 1997 are in conflict with Item 2 of Article 94 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law

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

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

Justices of the Constitutional Court:           Armanas Abramavičius

                                                                                Toma Birmontienė

                                                                                Egidijus Kūris

                                                                                Zenonas Namavičius

                                                                                Ramutė Ruškytė

                                                                                Vytautas Sinkevičius

                                                                                Stasys Stačiokas

                                                                                Romualdas Kęstutis Urbaitis