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On the restoration of the rights of ownership in state parks and state reserves

Case No. 03/04-15/04-05/06

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF ITEM 1 (WORDING OF 2 APRIL 2002) OF PARAGRAPH 2 OF ARTICLE 5 AND PARAGRAPH 7 (WORDINGS OF 13 MAY 1999 AND 11 DECEMBER 2001) OF ARTICLE 16 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE RESTORATION OF THE RIGHTS OF OWNERSHIP OF CITIZENS TO THE EXISTING REAL PROPERTY WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

5 July 2007

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

Seimas members Antanas Bosas, Gintaras Šileikis and Valdemar Tomaševski, as well as Darius Karvelis, a senior advisor of the Seimas Committee on Environment Protection, acting as the representatives of the Seimas of the Republic of Lithuania, the 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, in its public hearing, on 27 June 2007, considered case No. 03/04-15/04-05/06 subsequent to the following:

1) the petition of the Klaipėda Regional Administrative Court, a petitioner, requesting an investigation into whether Paragraph 7 (wording of 13 May 1999) of Article 16 of the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property to the extent that it provides that land and forest in state parks and state reserves shall be given back only to the citizens who reside in the region in which a state park or state reserve is situated, by respectively assigning to the ownership a plot of land or forest of the value equal to the one possessed previously, is not in conflict with Articles 18, 29 and 32 of the Constitution of the Republic of Lithuania (petition No. 1B-01/2004);

2) the petition of the Šiauliai Regional Administrative Court, a petitioner, requesting an investigation into whether Paragraph 7 (wording of 11 December 2001) of Article 16 of the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property to the extent that it provides that land, forest or water bodies in state parks and state reserves shall without payment be assigned to ownership in an area of land, forest or water body of equal value, without parcelling out the plot into parts, except land of an individual farm, only to those citizens who use land for an individual farm in these territories or who, on 17 August 2001, resided and possessed by right of ownership residential houses or flats, parts thereof in a state park and state reserve, and in villages and small towns adjoining them, is not in conflict with Article 29 of the Constitution of the Republic of Lithuania and with the principle of a state under the rule of law which is, according to the petitioner, consolidated in the Preamble to the Constitution of the Republic of Lithuania (petition No. 1B-14/2004);

3) the petition of the Vilnius Regional Administrative Court, a petitioner, requesting an investigation into whether Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property to the extent that it provides that the area of the vacant (non-built-up) land given back in kind shall be reduced to the size of a plot of land of one hectare, provided that plots of land are designed on it, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of this article and they cannot be designed within other territories of the town due to the lack of vacant (non-built-up) land in this town, is not in conflict with Paragraph 3 of Article 23 of the Constitution of the Republic of Lithuania (petition No. 1B-05/2006).

By the 27 September 2006 decision of the Constitutional Court of the Republic of Lithuania, petition No. 1B-01/2004 of the Klaipėda Regional Administrative Court, petition No. 1B-14/2004 of the Šiauliai Regional Administrative Court and petition No. 1B-05/2006 of the Vilnius Regional Administrative Court were joined into one case and it was given reference No. 03/04-15/04-05/06.

The Constitutional Court

has established:

I

1. The Klaipėda Regiwonal Administrative Court, a petitioner, considered an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 7 (wording of 13 May 1999) of Article 16 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (hereinafter also referred to as the Law) to the extent that it provides that land and forest in state parks and state reserves shall be given back only to the citizens who reside in the region in which a state park or state reserve is situated, by respectively assigning to the ownership a plot of land or forest of the value equal to the one possessed previously, is not in conflict with Articles 18, 29 and 32 of the Constitution (petition No. 1B-01/2004).

2. The Šiauliai Regional Administrative Court, a petitioner, considered an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Paragraph 7 (wording of 13 May 1999) of Article 16 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property to the extent that it provides that land, forest or water bodies in state parks and state reserves shall without payment be assigned to ownership in an area of land, forest or water body of equal value, without parcelling out the plot into parts, except land of an individual farm, only to those citizens who use land for an individual farm in these territories or who, on 17 August 2001, resided and possessed by right of ownership residential houses or flats, parts thereof in a state park and state reserve, and in villages and small towns adjoining them, is not in conflict with Article 29 of the Constitution and with the principle of a state under the rule of law which is, according to the petitioner, consolidated in the Preamble to the Constitution (petition No. 1B-14/2004).

3. The Vilnius Regional Administrative Court, a petitioner, considered an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting an investigation into whether Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property to the extent that it provides that the area of the vacant (non-built-up) land given back in kind shall be reduced to the size of a plot of land of one hectare, provided that plots of land are designed on it, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of this article and they cannot be designed within other territories of the town due to the lack of vacant (non-built-up) land in this town, is not in conflict with Paragraph 3 of Article 23 of the Constitution (petition No. 1B-05/2006).

II

1. The petition of the Klaipėda Regional Administrative Court, a petitioner, is grounded on the following arguments.

The constitutional rights and freedoms should be treated by taking account of Article 18 of the Constitution, which consolidates the innate nature of human rights and freedoms. If the limitations (which are established by law or other legal act) of the constitutional rights lack clear legal substantiation, they should be recognised to be in conflict with the Constitution. Laws prohibit or limit such activity in state parks, which might inflict harm on the protected complexes and objects, as well as recreational resources. The aim and purpose of such limitation is understandable. However, according to the Klaipėda Regional Administrative Court, a petitioner, the limitation on the circle of the subjects who have the right to receive gratis a land plot as ownership, which is of the value equal to the one possessed previously in a state park, by indicating neither the aim, nor the purpose of the said limitation, should not be recognised as grounded. The legal regulation established in Paragraph 7 (wording of 13 May 1999) of Article 16 of the Law limits, by indicating neither the aim, nor the purpose of such limitation, the circle of the subjects who have the right to restore the rights of ownership in a state reserve or a state park in equivalent kind. Thus, in the opinion of the Klaipėda Regional Administrative Court, a petitioner, the human rights and freedoms are groundlessly limited and the innate nature of the rights and freedoms entrenched in Article 18 of the Constitution is disregarded. In addition, such legal regulation links the restoration of the rights of ownership with the features of the subjects of the rights, since the rights of ownership are restored to the persons who reside in the area in which the state park or the state reserve is situated, while this, in the opinion of the Klaipėda Regional Administrative Court, a petitioner, violates the principle of equal rights, which is entrenched in Article 29 of the Constitution, as well as the constitutional principle of a state under the rule of law. In the opinion of the Klaipėda Regional Administrative Court, a petitioner, the impugned legal regulation also limits the right of a person freely to choose the place of residence, which is consolidated in Article 32 of the Constitution, since a conflict is created between the right to freely choose the place of residence and the right to possess property: the right of the person to choose the place of residence, according to the petitioner, “ is limited according to the place of the land plot that he is willing to receive as ownership”, therefore, a person, while implementing his one constitutional right, loses an opportunity to implement another constitutional right.

2. The petition of the Šiauliai Regional Administrative Court, a petitioner, is grounded on the following arguments.

Before 11 December 2001, when Paragraph 7 of Article 16 of the Law was amended, the right to restore the rights of ownership to land by a land plot in state parks and reserves of the value equal to the one possessed previously was related with the condition that the aspirant resided in the territory of the state park, the state reserve, or in the adjoining territory. Such legal regulation created an expectation to the citizens that provided they met the conditions established in the law, they would be assigned, under procedure and conditions established in the law, a land plot in the state park or reserve in equivalent kind. However, under Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law, different, more difficult requirements were established for implementation of this right to the citizens who seek to restore the rights of ownership in state parks and state reserves by means of assigning a plot of land or forest of the value equal to the one possessed previously. In the opinion of the Šiauliai Regional Administrative Court, a petitioner, such legal regulation whereby upon the beginning of legal regulation of the same contents new requirements are established violates the principle of equal rights entrenched in Article 29 of the Constitution as well as the constitutional principle of a state under the rule of law.

3. The petition of the Vilnius Regional Administrative Court, petitioner, is based on the following arguments.

After it was established in Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law that “the area of the vacant (non-built-up) land given back in kind shall be reduced to the size of a plot of land of one hectare, provided that plots of land are designed on it, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of this Article and they cannot be designed within other territories of the town due to the lack of vacant (non-built-up) land in this town”, one limited the area of land to which it is permitted to restore the right of ownership. Such quantitative limitation does not permit the restoration of the rights of ownership to the entire vacant and non-built-up land, to which there is not any concrete need of society. According to the Vilnius Regional Administrative Court, a petitioner, it is not permissible to limit the restoration of the rights of ownership to vacant (non-built-up) land in kind, if there is not any concrete need of society to that concrete land, otherwise Paragraph 3 of Article 23 of the Constitution whereby property may be taken over only for the needs of society according to the procedure established by law and shall be justly compensated for is violated.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the representatives of the Seimas, the party concerned, who were Seimas member A. Bosas and D. Karvelis (who represented the Seimas, the party concerned, in the part of the case subsequent to petition No. 1B-14/2004 of the Šiauliai Regional Administrative Court, a petitioner) and from Seimas member V. Tomaševski (who represented the Seimas, the party concerned, in the part of the case subsequent to petition No. 1B-05/2006 of the Vilnius Regional Administrative Court, a petitioner).

1. It is maintained in the explanations of Seimas member A. Bosas and D. Karvelis that the impugned Paragraph 7 (wording of 13 May 1999) of Article 16 of the Law to the extent that it provides that land, forest or water bodies in state parks, except Nemunas Delta Regional Park, and state reserves shall without payment be assigned to ownership in an area of land, forest or water body of equal value, without parcelling out the plot into parts, except land of an individual farm, only to those citizens who use land for an individual farm in these territories or who, on 17 August 2001, resided and possessed by right of ownership residential houses or flats, parts thereof in a state park and state reserve, and in villages and small towns adjoining them, is not in conflict with the Constitution. The position of these representatives of the Seimas, the party concerned, is based on the following arguments.

The impugned provisions abolished the absolute prohibition (which had existed for some time until then) on assigning to the owners a land plot in state parks and state reserves which is of the value equal to the one possessed previously. By this one sought to restore the balance of the social relations—to preserve the most valuable territories of this country and, alongside, to protect the rights of ownership of the residents of those territories. Such legal regulation did not deny the right of ownership of the persons, but it only limited the implementation of this right to the persons who actually do not reside in the state park of the state reserve, who do not possess a residential house, flat or part thereof by right of ownership in it and who do not use the land for individual needs. Thus, the impugned provisions have provided for only one group of persons—citizens, who reside in or who possess residential houses or flats in a state park or reserve—and they do not consolidate that the persons of this group implement their rights differently; therefore, in the opinion of Seimas member A. Bosas and D. Karvelis, the constitutional principle of equal rights of persons is not violated, since it does not deny an opportunity to regulate the legal status of certain persons, who are in different situations, in a differentiated manner.

2. It is maintained in the explanations of the representative of the Seimas, the party concerned, Seimas member V. Tomaševski that Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law to the extent that it provides that the area of the vacant (non-built-up) land given back in kind shall be reduced to the size of a plot of land of one hectare, provided that plots of land are designed on it, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of this article and they cannot be designed within other territories of the town due to the lack of vacant (non-built-up) land in this town, is in conflict with Paragraph 3 of Article 23 of the Constitution.

IV

1. At the Constitutional Court’s hearing, representatives of the Seimas, the party concerned, who were Seimas members A. Bosas and V. Tomaševski, as well as D. Karvelis, virtually reiterated the arguments presented in their written explanations.

2. At the Constitutional Court’s hearing, a representative of the Seimas, the party concerned, who was Seimas member G. Šileikis, presented his explanations.

3. At the Constitutional Court’s hearing, representatives of the Seimas, the party concerned, who were Seimas members A. Bosas, G. Šileikis, and V. Tomaševski, held, inter alia, that the legal regulation of the restoration of the rights of ownership to the existing real property has been amended many a time; this determined the inconsistency, discrepancy and different treatment of provisions of corresponding legal acts.

4. At the Constitutional Court’s hearing the following specialists took the floor: S. Staliūnas, Director of the Land Management Department of the National Land Service under the Ministry of Agriculture, and J. Liaskovskaja, Head of the Law Division of the National Land Service under the Ministry of Agriculture.

The Constitutional Court

holds that:

I

1. In the constitutional justice case at issue, the compliance of the articles (parts thereof) of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property with the Constitution is investigated.

2. Since 1994 the Constitutional Court has investigated in numerous aspects the constitutionality of the legal acts (inter alia, laws) that regulate the relations of the restoration of the rights of ownership in a great many constitutional justice cases. The Constitutional Court’s acts have formulated a broad official constitutional doctrine of restitution—the restoration of the rights of ownership of citizens to the existing real property. It is grounded on the following principled provisions, which have been stated many a time.

After the occupation government, in 1940 and later, nationalised and in other unlawful ways expropriated residential houses, parts thereof, flats, land, forests, water bodies and other private property, the human innate right itself to possess private property was denied. On the grounds of such arbitrary acts of the occupation government could not appear, nor did appear any lawful state or public property, since no law (right) can appear on the basis of unlawfulness, thus, the property expropriated from the people should be regarded only as property which is in fact managed by the state. When, on 15 November 1990, the Supreme Council adopted the principled decision that it is necessary to restore the rights of ownership, it was held that the continuity of the rights of ownership of citizens of Lithuania is unquestionably recognised, that citizens of Lithuania have the right to retrieve in kind, within the limits and under procedure defined by law, the property that had belonged to them, while in case there are no possibilities of retrieving it, then to receive compensation for it. The provision that in case there are no possibilities of retrieving the property in kind, then compensation must be assigned, is not in conflict with the principles of the inviolability of property and protection of the right of ownership, since fair compensation also ensures the restoration of the rights of ownership, however, it is important that the conditions which are established by law and which regulate the relations of the restitution, due to which the property cannot be retrieved in kind, be in line with the constitutional provisions of protection of ownership.

It was impossible to restore the denied rights of ownership by invoking the laws that were valid at the time when the said principled decision was adopted to restore the rights of ownership. While regulating the restoration of the denied rights of ownership, it was necessary to take account of the fact that during the years of occupation, other property, social and economic relations of people came into being, that other objective circumstances occurred due to which it was impossible to completely restore the rights of ownership (to go back to status quo ante). Therefore, in the Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property” adopted by the Supreme Council on 18 June 1991, one chose not restitutio in integrum, but limited restitution; such choice was determined, among other factors, by the extent of the restoration of the rights of ownership and the limited material and financial capabilities of the state. This law (with subsequent amendments and supplements), under which the restoration of the rights of ownership were begun, was a special (ad hoc) law designed to regulate the restitution relations and the restoration of the rights of ownership; such its character was determined by the following: it was applied not to all property relations, but only to those which appeared due to the restoration of the rights of ownership to the existing real property; it was applied not to all former owners and successors to their rights, but only to those who met the conditions established in this law; the restoration of the rights of ownership was executed not under the norms of civil law, but only under the procedure established in this law.

3. The Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property” adopted by the Supreme Council on 18 June 1991 was amended and supplemented more than once.

4. The process of the restitution was temporarily suspended from 22 January 1997 to 8 July 1997, subsequent to Article 1 of the Republic of Lithuania’s Provisional Law on the Suspension of the Validity of the Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property” adopted by the Seimas on 16 January 1997 in which it was prescribed that the validity of the Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property” shall be temporarily suspended until the “adoption of a new law”.

The constitutionality of this legal regulation has been impugned before the Constitutional Court. On 13 November 1997, having considered a petition of a group of members of the Seimas, the petitioner, requesting an investigation into whether the Provisional Law on the Suspension of the Validity of the Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property” was not in conflict with Articles 23, 106, 109, 114, and 145 of the Constitution, the Constitutional Court adopted the Decision “On the Petition of a Group of Seimas Members Requesting an Investigation into Whether the Provisional Law on the Suspension of the Validity of the Republic of Lithuania’s Law ‘On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property’ Is in Compliance with the Constitution of the Republic of Lithuania”, whereby, taking account of the fact that on 1 July 1997 the Seimas had passed the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership to the Existing Real Property Item 3 of Article 22 whereof provides that upon the entry into force of this law, the Provisional Law on the Suspension of the Validity of the Republic of Lithuania’s Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property” shall become null and void, the instituted legal proceedings were dismissed. Alongside, it needs to be noted that, as the Constitutional Court held in the said decision, “suspension of validity of laws is not characteristic of law-making and, as a rule, is linked with situations pointed out in the Constitution”. It needs to be mentioned that such a situation is provided for in Paragraph 4 of Article 106 of the Constitution which provides that “the presentation by the President of the Republic for the Constitutional Court or the resolution of the Seimas asking for an investigation into the conformity of an act with the Constitution shall suspend the validity of the act”.

The quoted provision of the official constitutional doctrine means, inter alia, that the Constitution does not permit the legislature to adopt the laws whereby the validity of valid laws is suspended; that, as long as the law is valid, it must be applied; that, in case it is necessary not to apply a law (parts thereof), one must recognise that it (parts thereof) is no longer valid, but not that the validity of that law (parts thereof) is suspended. On the other hand, the Seimas can establish as from when a law, which is adopted by it and which has come into force, must be applied, and that the date of the entry into effect of the law and that of its application might not necessarily coincide (the Constitutional Court’s ruling of 24 December 2002).

5. The Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property adopted by the Seimas on 1 July 1997 came into force on 9 July 1997. It needs to be noted that although the title of this law is different from the law that used to regulate the restoration of the rights of ownership previously, i.e. the Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property”, it regulates the relations of the same character, i.e. those of restitution. The Preamble to the Law provides that “the rights of ownership acquired by the citizens of the Republic of Lithuania before the occupation are not revoked and have continuity”, that “the Constitution <…> adopted by the will of citizens of the Republic of Lithuania in 1992, guarantees and defends the rights and property of the State and its citizens”, and that “the restoration of continuation of the rights of ownership is based on the provision of the 18 June 1991 Law of the Republic of Lithuania ‘On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property’—the existing real property shall be returned to citizens of the Republic of Lithuania, and in the event it is impossible to do so, they shall be compensated properly”. As well as the previously valid the Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property”, the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (also with subsequent amendments and supplements) is a special (ad hoc) law designed to regulate the relations of restitution and to implement the restoration of the rights of ownership; it must be applicable as long as the restoration of the rights of ownership is taking place, while when the restitution is over, it will become senseless and will have to be recognised as no longer valid.

6. After the rights of ownership were begun to be restored by the Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property”, citizens held the legitimate expectation that they would be able to restore the rights of ownership to the existing real property under the conditions and procedure established by law, while the state undertook the constitutional obligation to execute (continue) the started restitution until the rights of ownership to the existing property will be restored, under the conditions and procedure established in the law, to all citizens who have the right to restore the rights of ownership. The said legitimate expectation of citizens (that that the rights of ownership to the existing real property will be restored to them under the conditions and procedure established by law) is defended and protected by the Constitution, which came into force on 2 November 1992.

7. Protection of legitimate expectations is one of the elements of the principle of a state under the rule of law, which is consolidated in the Constitution. It implies, inter alia, that the state is under obligation to ensure the certainty and stability of legal regulation, to protect the rights (as well as the acquired rights) of the subjects of legal relations, and to respect legitimate interests. In its rulings of 4 March 2003, 4 July 2003, and 3 December 2003, one of the elements of the principle of legitimate expectations is the protection of rights which are acquired under the Constitution as well as laws and other legal acts which are not in conflict with the Constitution. It was also held in the Constitutional Court’s ruling of 13 December 2004 that the Constitution generally does not prevent from protecting and defending in certain special cases also such acquired rights of the person arising from the legal acts recognised later as being in conflict with the Constitution (substatutory legal acts—as being in conflict with the Constitution and/or the laws), which, if not defended or protected, would result in greater harm to the person, other persons, society or the state, than the harm inflicted in case of total non-defence or non-protection or partial defence or protection of the said rights. When deciding whether the acquired rights gained by the person during the period of validity of the legal act which was recognised later as being in conflict with the Constitution (substatutory legal acts—as being in conflict with the Constitution and/or the laws) should be protected and defended or not (and if so, to what extent), in each case it is necessary to find out whether in case of failure to protect and defend such acquired rights, other values protected by the Constitution would not be violated, and whether the balance between the values entrenched in and protected and defended by the Constitution would not be disturbed. However, it needs to be emphasised that the Constitution does not protect and defend the acquired rights of persons which are privileges in their essence; the protection and defence of privileges would mean that the constitutional principle of equal rights of persons and the constitutional principle of justice, the imperative of a harmonious civil society enshrined in the Constitution, and, therefore, the constitutional principle of a state under the rule of law, are violated (the Constitutional Court’s ruling of 13 December 2004).

The principle of protection of legitimate expectations implies a duty of the state as well as that of the institutions implementing state power as well as other state institutions to keep the obligations undertaken by the state. This principle also means the protection of acquired rights, i.e. persons have the right to reasonably expect that their rights which have been acquired according to valid laws and other legal acts, which are not in conflict with the Constitution, will be retained within the established time and will be implemented in reality.

8. From the very beginning of the restitution, i.e. since 1991, the legal regulation of the legal relations of restoration of citizens’ rights to the existing real property has been amended more than once; on the one hand, by the amendments and supplements of the legal acts one expanded the circle of the persons to whom the rights of ownership could be restored and the list of the property to which the rights of ownership cold be restored; on the other hand, sometimes the circle of the persons to whom the rights of ownership to corresponding property could be restored used to be narrowed by continuing to create different conditions under which the rights of ownership could be restored.

It needs to be emphasised that the instability of the legal regulation of the restitution relations greatly determined the lack of legal certainty: the subjects of the legal relations, who acquired an expectation at a certain time period that they would be able to restore the rights of ownership to corresponding property under the conditions and procedure established in the law, quite often find themselves in a situation, where they are not certain whether this expectation will actually be implemented due to the continually changing legal regulation.

In this context, it needs to be noted that, at the Constitutional Court’s hearing, the representatives of the Seimas, the party concerned, who were Seimas members A. Bosas, G. Šileikis and V. Tomaševski, also stated that the process of the restitution had been inconsistent and contradictory due to the fact that the legal regulation of the restoration of the rights of ownership to the existing real property had been amended more than once and that the corresponding provisions of legal acts used to be treated differently.

9. It needs to be emphasised specially that the constitutional imperatives of a harmonious, just and open civil society, the constitutional requirements of protection of legal certainty, legal security, and legitimate expectations imply that the begun restitution process may not last groundlessly long; thus, the amendments of corresponding relations of the legal regulation cannot be such so that they would create preconditions for procrastinating this process for an unreasonably long period. Due to the unreasonably long time during which the rights of ownership to the existing real property are restored, the essence of the restitution institute itself can be distorted or even denied, the constitutional rights of ownership as well as other rights of the person can be violated and the trust of the people in the state and law can be undermined.

II

1. Under Item 1 of Paragraph 2 of Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 1 July 1997 and which came into force on 9 July 1997, the rights of ownership to the land which, prior to 1 June 1995, was situated within the territory that was, in the prescribed manner, assigned to towns used to be restored “by transferring without payment into the ownership of the citizens who have residential houses or other structures by right of ownership, a plot of land in use by them, the boundaries whereof are established in the territorial planning documents, adjoining these structures or a plot of land designated for another purpose (kitchen garden, garden and other), established in the territorial planning documents, except in the town of Neringa, but not exceeding 0.2 hectares in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas, and not exceeding 0.3 hectares in other towns. When a utilised plot of land, adjoining structures, lies within the land held by right of ownership, the whole area of this utilised plot of land adjoining the structures shall be transferred into the right of ownership without payment, regardless of the drawn up territorial planning documents of that locality, but not exceeding 1 hectare”.

Paragraph 6 (wording 1 July 1997) of Article 16 of the Law used to provide that “land and forest in state parks and state reserves shall be given back by transferring into ownership a plot of land or a plot of forest respectively, which must be of equal value to the one held previously, only to the citizens who reside within these territories”.

2. The Law has been amended and/or supplemented more than once, inter alia, Articles 5 and 16 (wording of 1 July 1997) thereof have been amended as well.

3. On 13 May 1999, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 2, 4, 5, 10, 12, 13, 15, 16, 18, 20, 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which came into force on 2 June 1999.

3.1. By Article 3 of the said law one amended and supplemented Paragraph 2 (wording of 1 July 1997) of Article 5 of the Law and set it forth in a new wording.

Under Item 1 (wording of 13 May 1999) of Paragraph 2 of Article 5 of the Law, the rights of ownership to the land which, prior to 1 June 1995, was situated within the territory that was, in the prescribed manner, assigned to towns shall be restored: <…> “by transferring without payment into the ownership of the citizens who have residential houses or other structures by right of ownership, a plot of land in use by them, the boundaries whereof are established in the territorial planning documents, adjoining these structures or a plot of land designated for another purpose (kitchen garden, garden and other), established in the territorial planning documents, except within the territory of Curonian Spit National Park, but not exceeding 0.2 hectares in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas, and not exceeding 0.3 hectares in other towns. When a utilised plot of land, adjoining structures, lies within the land held by right of ownership and its area exceeds 0.2 hectares or 0.3 hectares respectively, upon the citizen’s request, this larger utilised plot of land adjoining the structures shall be transferred into the right of ownership without payment, as well as a remaining, free (without constructions) area of the plot of land possessed by the owner which adjoins the said utilised plot of land (when there are several citizens enjoying the right to restore the right of ownership to such land—upon their request, this larger utilised, free (without constructions), remaining area of the plot of land adjoining the structures shall be transferred without payment into joint ownership or into the ownership of the owner of the structures), regardless of the drawn-up territorial planning documents of that locality, but not exceeding 1 hectare of total area in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas and not exceeding 1.5 hectares of total area in other cities”.

3.2. Under Article 8 of the Law on Amending and Supplementing Articles 2, 4, 5, 10, 12, 13, 15, 16, 18, 20, 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, Paragraph 6 (wording 1 July 1997) of Article 16 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property became Paragraph 7 (Paragraph 2), while the said paragraph was amended and set forth in a new wording (Paragraph 3).

It was established in Paragraph 7 (wording 13 May 1999) of Article 16 of the Law that “land and forest in state parks and state reserves shall be given back by transferring into ownership a plot of land or a plot of forest respectively, which must be of equal value to the one held previously, only to the citizens who reside in the region in which the state park or state reserve is situated”.

4. On 2 April 2001, subsequent to the petition of a group of members of the Seimas, the petitioner, requesting an investigation into whether Paragraphs 2, 3, 4, and 5 of Article 5, Item 3 of Article 12 of the Law on the Restoration of Citizens’ Rights of Ownership to the Existing Real Property were in compliance with the common provisions of the same law, Articles 23, 29, 46 and 47 of the Constitution, Articles 15 and 21 of the Republic of Lithuania’s Law on Land, Article 8 of the Constitutional Law on the Subjects, Procedure, Terms, Conditions and Restrictions of the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania, and whether the second sentence of Paragraph 3 of Article 16 and Item 5 of Paragraph 9 of Article 16 of the Republic of Lithuania’s Law on the Restoration of Citizens’ Rights of Ownership to the Existing Real Property were in compliance with Paragraph 3 of Article 23 and Article 29 of the Constitution, the Constitutional Court adopted the Ruling “On the compliance of Paragraphs 2, 3, 4, and 5 of Article 5, Item 3 of Article 12 and Paragraph 3 of Article 16 as well as Item 5 of Paragraph 9 of the same article of the Republic of Lithuania’s Law on the Restoration of Citizens’ Rights of Ownership to the Existing Real Property with the Constitution of the Republic of Lithuania and on the compliance of Paragraphs 2, 3, 4, and 5 of Article 5 as well as Item 3 of Article 12 of the same law with Article 8 of the Constitutional Law on the Subjects, Procedure, Terms, Conditions and Restrictions of the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania” in which it ruled that Paragraph 2 of Article 5 of the Law to the extent that it provides that vacant (not built over) land is not returned in kind if the citizen does not have a residential house or another structure adjoining the land previously held by him by right of ownership even though there is not any particular need of society for this vacant (not built over) land, and Item 3 of Article 12 of the same law to the extent that it provides that the portion of land which remains after the utilised plot of land adjoining the residential house or other structure has been transferred to the citizen without payment is purchased by the state even though there is not any particular need of society for this vacant (not built over) land conflicted with Paragraph 3 of Article 23 of the Constitution.

5. The Law (wording of 1 July 1997 with the amendments and supplements made by the Law on Amending and Supplementing Articles 2, 4, 5, 10, 12, 13, 15, 16, 18, 20, 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property which was adopted by the Seimas on 1 July 1997) was amended and/or supplemented by the following: the Republic of Lithuania’s Law on Supplementing Article 4 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 4 January 2000 and which came into force on 19 January 2000; the Republic of Lithuania’s Law on Amending Article 4 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 18 July 2000 and which came into force on 31 July 2000; the Republic of Lithuania’s Law on Supplementing Article 2 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 10 October 2000 and which came into force on 25 October 2000; the Republic of Lithuania’s Law on Amending and Supplementing Article 13 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 10 April 2001 and which came into force on 1 July 2001.

Item 1 (wording of 13 May 1999) of Paragraph 2 of Article 5 and Paragraph 7 (wording of 13 May 1999) of Article 16 of the Law were not amended and/or supplemented by these laws.

6. On 3 August 2001, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 2, 4, 6, 10, 12, 16 and 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which came into force on 17 August 2001. By Paragraph 2 of Article 6 of the said law one amended Paragraph 7 (wording of 13 May 1999) of Article 16 of the Law.

6.1. It was established in Paragraph 7 (wording of 3 August 2001) of Article 16 of the Law that “land and forest in state parks and state reserves shall not be given back by transferring into ownership a plot of land or a plot of forest respectively, as that of equal value to the one held previously”.

Thus, one abolished the opportunity that had existed until then to get land or forest in state parks and state reserves as ownership of equal value to the land or forest held previously in another location or to the land or forest held previously in other part of the territory of the state parks or state reserves.

6.2. By Article 1 of the Law on Amending and Supplementing Articles 2, 4, 6, 10, 12, 16 and 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property one prolonged the terms for submission of the applications requesting the restoration of the rights of ownership: it was prescribed that such applications could be submitted till 31 December 2001. Later the terms for submission of the applications requesting the restoration of the rights of ownership were not prolonged.

7. On 11 December 2001, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 12, 13 and 16 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property which came into force on 28 December 2001. By Article 3 of this law Paragraph 7 (wording of 3 August 2001) of Article 16 of the Law was amended and set forth in a new wording.

Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law, the compliance of the provisions of which with the Constitution is impugned in the constitutional justice case at issue, provides:

Land, forest or water bodies in state parks, except Nemunas Delta Regional Park, and state reserves shall without payment be assigned to ownership in an area of land, forest or water body of equal value, without parcelling out the plot into parts, except land of an individual farm, only to those citizens who use land for an individual farm in these territories or who, prior to 17 August 2001, resided and possessed by right of ownership residential houses or flats, parts thereof in a state park and state reserve, and in villages and small towns adjoining them, as well as to the citizens who resided in these territories prior to 17 August 2001, whose spouses had a residential house or a flat, or a part thereof in these territories. Land in Nemunas Delta Regional Park shall be assigned to ownership in a plot of land of equal value without parcelling out it into parts, except land of an individual farm, to those citizens who resided in the territory of the said regional park, as well as in the Šilutė and Pagėgiai municipalities. On the basis of land survey plans of the land reform approved prior to 17 August 2001, land, forest or water bodies in state parks and state reserves shall be given back to the citizens who resided and possessed by right of ownership residential houses or flats, parts thereof in the region in which a state park or state reserve is situated, by respectively assigning to the ownership without payment a plot of land, forest or a water body of the value equal to the one possessed previously.”

8. Later, the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (wording of 1 July 1997 with subsequent amendments and supplements) was amended and/or supplemented by the following: the Republic of Lithuania’s Law on Amending and Supplementing Articles 2, 8, 12, 15, 16, 18, 20 and 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 15 January 2002 and which came into force on 18 January 2002; the Republic of Lithuania’s Law on Amending Articles 4 and 12 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 28 March 2002 and which came into force on 17 April 2002.

The aforementioned laws did not amend and/or supplement Item 1 (wording of 13 May 1999) of Paragraph 2 of Article 5 and Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law.

9. On 2 April 2002, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 5, 12 and 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which came into force on 19 April 2002. By Article 1 of this law Paragraph 2 (wording of 13 May 1999) of Article 5 of the Law was set forth in a new wording.

Under Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law, the compliance of the provisions of which with the Constitution is impugned in the constitutional justice case at issue, the rights of ownership to the land, which was situated prior to 1 June 1995 within the territory that was assigned in the prescribed manner to towns, shall be restored “by giving back in kind to a citizen or citizens the vacant (non-built-up) land in the former locality by the right of joint ownership, as well as to a citizen, possessing the buildings by the ownership right, a plot of land in use by this citizen the boundaries of which are defined in territorial planning documents, with the exception of the land categorised, under Article 12 of this Law, as land subject to purchase by the State, as well as the land a citizen does not wish to be given back in the former locality. The area of the vacant (non-built-up) land given back in kind shall be reduced to the size of a plot of land of one hectare, provided that plots of land are designed on it, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of this Article and they cannot be designed within other territories of the town due to the lack of vacant (non-built-up) land in this town. The plans of vacant (non-built-up) land plots which are provided for returning in kind at the locality previously possessed shall be confirmed by municipal councils under procedure established by the Government”.

Thus, the area of town vacant (non-built-up) land to be returned to citizens may not be bigger than 1 ha, provided that plots of land are designed on this vacant (non-built-up) land, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of this article and they cannot be designed within other territories of the town due to the lack of vacant (non-built-up) land in this town.

10. Later the Law (wording of 1 July 1997 with subsequent amendments and supplements) was amended and supplemented by the following: the Republic of Lithuania’s Law on Amending Articles 10 and 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 15 October 2002 and which came into force on 25 October 2002; the Republic of Lithuania’s Law on Amending and Supplementing the Preamble and Articles 2, 12, 13, 15, 16 and 20 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 29 October 2002 and which came into force on 22 November 2002; the Republic of Lithuania’s Law on Amending Article 10 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 19 June 2003 and which came into force on 30 June 2003; the Republic of Lithuania’s Law on Amending and Supplementing Articles 2, 10, 12, 15, 17, 20 and 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 14 October 2003 and which came into force on 29 October 2003; the Republic of Lithuania’s Law on Amending Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 23 March 2004 and which came into force on 10 April 2004.

The aforementioned laws did not amend and/or supplement Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 and Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law.

11. On 12 October 2004, the Seimas adopted the Republic of Lithuania’s Law on Amending Article 10 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which came into force on 26 October 2004. Article 1 of the same law left the same term, which was 31 December 2001, to be valid for the applications requesting the restoration of the rights of ownership, however, alongside, it was prescribed that the term for submission of the application may be renewed for the persons who missed the term due to the reasons which are recognised as relevant by a court.

12. Later, the Law (wording of 1 July 1997 with subsequent amendments and supplements) was amended and supplemented by the following: the Republic of Lithuania’s Law on Amending Article 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 26 May 2005 and which came into force on 9 June 2005; the Republic of Lithuania’s Law on Amending and Supplementing Articles 4, 5, 12 and 13 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 16 November 2006 and which came into force on 21 November 2006.

By Article 2 of the Law on Amending and Supplementing Articles 4, 5, 12 and 13 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property one amended and supplemented Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law and set it forth in a new wording, however, the provisions impugned by the Vilnius Regional Administrative Court, a petitioner, were not amended.

The aforesaid laws did not amend and/or supplement Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law.

III

1. It has been mentioned that the Constitutional Court’s acts have formulated a broad official constitutional doctrine of restitution—the restoration of the rights of ownership of citizens to the existing real property.

In the course of considering whether Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 and Paragraph 7 (wordings of 13 May 1999 and 11 December 2001) of Article 16 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property are not in conflict with the Constitution, the official constitutional doctrine is developed on the grounds of the provisions formulated in previous constitutional justice cases.

2. While regulating the relations of the restoration of the relations of the rights of ownership, the legislature enjoys the discretion to establish the conditions and procedure for the restoration of the rights of ownership. While doing so, the legislature is bound by the Constitution, thus, it must heed the constitutional principles of the protection of the rights of ownership, the constitutional striving for an open, just and harmonious civil society and other constitutional values. In the Constitutional Court’s ruling of 4 March 2003 it was held that when one establishes, by means of laws, the conditions and procedure of restoration of the rights of ownership, it is necessary to take account of the changed social, economic, and other conditions. In the Constitutional Court’s ruling of 27 October 1998 it was held that in the process of the restoration of the rights of ownership it is necessary to co-ordinate the interests of the persons who seek to restore the rights of ownership and the needs of society; that, in the course of restoration of the rights of some persons, it is not permitted to violate the rights of other persons, and that it is impossible to attain justice by recognising the interests of only one group or one person and by denying the interests of others at the same time.

The Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property may prescribe that objects of property (which are purchased by the state) are not returned in kind to the persons who have the right to the restoration of the rights of ownership; the provision of the Law that if it is impossible to retrieve the property in kind, compensation must be given, is not in conflict with the principles of inviolability of property and of the protection of ownership rights, since fair compensation also ensures restoration of ownership rights (the Constitutional Court’s rulings of 27 May 1994 and 23 August 2005).

In the context of the constitutional justice case at issue, it needs to be emphasised specially that the legislature, while enjoying the powers to establish the conditions and procedure for the restoration of the rights of ownership, alongside has the powers to establish (of course, without overstepping the limitations established explicitly and implicitly in the Constitution) also that in case there is not any possibility of restoring in kind namely the property that used to belong to the person by right of ownership prior to the unlawful nationalisation or other unlawful expropriation, the rights of ownership are restored by other ways, inter alia, by granting a plot of land, forest, or water body of equal value in another locality, i.e. by granting property, which has never belonged to that person by right of ownership.

3. While interpreting Article 23 of the Constitution in the context of the restoration of the rights of ownership, the Constitutional Court has held that it is impossible to identify the state-purchase of the existing real property from the citizens to whom the right of ownership is restored with the seizure of property from the owner for the needs of society, that, while deciding whether the compensation for the existing real property which has not been returned in kind is a just one, one has to take account of the fact that it was not the State of Lithuania that unlawfully nationalised or expropriated in other unlawful ways the property of the owner. The State of Lithuania, while striving to restore justice in part at least, i.e. to restore the violated rights of ownership, chose restricted restitution, but not restitutio in integrum; the restoration of justice when the owners are compensated for the existing real property which has not been returned in kind has two sides: it is justice in regard of the owner as well as the entire society; the unlawful actions of the occupation government inflicted enormous damage not only on the owners whose rights of ownership were denied but also on the whole society and the entire state; while restoring justice in regard of the owners, one cannot ignore justice in regard of the entire society whose members are also the owners as well; in the process of the restoration of the rights of ownership one must strive for a balance between the persons whose rights are being restored and the interests of the entire society (the Constitutional Court’s ruling of 4 March 2003).

4. The Constitution does not prohibit the regulation, by means of a law, of the restoration of the rights of ownership to the existing real property in a differentiated manner also in the aspect that the conditions and procedure of the restoration of the rights of ownership may also differ, inter alia, according to the fact as to what kind of ownership (land, forest, water body) the rights of ownership are restored, as well as according to the fact in what territory the property to which the rights of ownership are restored is situated. However, one must heed the constitutional principle of a state under the rule of law which includes, inter alia, the protection of legitimate expectations, legal certainty and legal security.

Alongside, it needs to be emphasised that although the constitutional principle of a state under the rule of law implies the requirements of legal certainty, legal security, protection of legitimate interests and other requirements, inter alia, those raised to the legal regulation of the restitution relations, it is not permitted to construe the said principle that it, purportedly, does not in general permit the legislature, after it began the restoration of the rights of ownership under certain conditions, to change these conditions later, inter alia, to establish new, additional conditions, when by this one seeks to protect certain constitutional values, upon which harm might be inflicted or conditions for such harm to appear might be created, in case the conditions of the restoration of the rights of ownership to the existing real property established earlier were not changed. Quite to the contrary, should it become clear that certain values protected and defended by the Constitution, upon which harm might be inflicted or conditions for such harm to appear might be created, the legislature not only may, but also must correspondingly amend the conditions and procedure for the restoration of the rights of ownership to the existing real property which were established previously. However, also in such cases one must heed the constitutional principle of proportionality under which the applicable measures established by legal acts must be proportionate to the objective sought, while the rights of the person cannot be limited more than necessary to reach the legitimate and generally important as well as constitutionally grounded objective.

5. In the constitutional justice case at issue, inter alia, the provisions of Paragraph 7 (wordings of 13 May 1999 and 11 December 2001) of Article 16 of the Law are impugned regarding the restoration of the rights of ownership, where a person is assigned gratis a plot of land, forest or water body which is in a state park or state reserve and which is of equal value to that possessed previously.

5.1. Land, forests and water bodies are special objects of property law, since proper use and protection of land, forests and water bodies is a condition of survival and development of the human being and society, and as the basis of the welfare of the Nation; the Constitution treats the natural environment, its fauna and flora, individual objects of nature and districts of particular value as national values of universal importance; their protection and securing that natural resources be used moderately and that they be restored and augmented are a public interest the guaranteeing of which is a constitutional obligation of the state (the Constitutional Court’s rulings of 13 May 2005 and 14 March 2006).

5.2. Article 54 of the Constitution provides that the state shall take care of the protection of the natural environment, wildlife and plants, individual objects of nature and areas of particular value and shall supervise a sustainable use of natural resources, their restoration and increase (Paragraph 1); the destruction of land and the underground, the pollution of water and air, radioactive impact on the environment as well as depletion of wildlife and plants shall be prohibited by law (Paragraph 2). It also needs to be mentioned that, under Paragraph 3 of Article 53 of the Constitution, the state and each person must protect the environment from harmful influences.

The general notion “areas of particular value” of Paragraph 1 of Article 54 of the Constitution implies that certain parts (areas) of the territory of Lithuania which, due to their ecological, cultural, historical, scientific and other significance, differ from other parts (areas) of the territory of Lithuania, provided this is constitutionally grounded, not only may but also must be categorised as areas of particular value. Under the Constitution, the legislature enjoys the powers and discretion to decide which areas should be categorised as areas of particular value, however, the categorisation of the areas as areas of particular value must be reasoned. Individual areas may be categorised as areas of particular value according to the criteria established by legal acts (taking account of their ecological, cultural, historical, scientific and other value, etc.).

5.3. In the context of the notion “areas of particular value”, as a general notion, of Paragraph 1 of Article 54 of the Constitution, it needs to be mentioned that the Constitution does not prevent usage of other words or formulas in laws and other legal acts than those used in the text of the Constitution, that treating the requirement to describe the same phenomena in laws and other legal acts always in the same words and formulas unreservedly would mean not only the seeking to artificially restrict and stop the development of language, inter alia, legal terminology, when not only words (formulas) describing the same phenomena, which are different from the text of the Constitution, are used in the laws and other legal acts, but new terms (formulas) in general, which were not yet created at the time of drawing the text of the Constitution, but it might also provoke to correct the text of the Constitution according to the terminology (words, formulas) entrenched in the laws and other legal acts also in such cases, when the intervention into the text of the Constitution, which as the supreme law must be a permanent act, is not legally necessary (the Constitutional Court’s rulings of 16 January 2006 and 19 August 2006). Thus, the areas of particular values mentioned in Article 54 of the Constitution may be named in laws differently, provided due to this the content of the constitutional notion “areas of particular value” is not distorted or denied at all.

In the context of the constitutional justice case at issue, it needs to be noted that certain parts of the territory of Lithuania are referred to in laws as protected territories. Under the Republic of Lithuania’s Law on Protected Territories (wording of 4 December 2001), protected territories shall mean the land and/or water areas which have clearly defined boundaries, an acknowledged scientific, ecological, cultural and other value and for which a special protection and use regime (procedure) has been introduced by legal acts (Paragraph 32 of Article 2); also such territories which are named “state parks” and “state reserves” are assigned to protected territories: state (national and regional) parks shall mean the large protected territories established in the territories which are complex from the natural, cultural and recreational points of view and are particularly valuable and whose protection and management is related to designation of territories’ functional and landscape management zones; “reserves” shall mean the protected territories established for the preservation of the natural and/or cultural sites valuable from the scientific or cognitive point of view, the territorial complexes and objects (properties) of natural and cultural heritage located therein, landscape and biological diversity as well as gene pool; preservation of the properties located in these territories shall be ensured without terminating economic activities therein (Paragraph 8 of Article 2).

Thus, state parks and state reserves are regarded as territories of particular value. It needs to be noted that the notions “state park” and “state reserve” employed in the Law on Protected Territories (wording of 4 December 2001) do not distort let alone deny the content of the constitutional notion “areas of particular value”.

5.4. While enjoying the powers to categorise certain areas as areas of particular value, the legislature, while taking account of a special imperishable value of the objects of nature which are in the territories of special value, their significance and the necessity to preserve them for posterity, the constitutional duty that falls upon the state to take care of the preservation of areas of particular value and rational use thereof, also enjoys the powers to establish a special regime of the protection and use of these areas. It was held in the Constitutional Court’s ruling of 14 March 2006 that such special legal regime implies, inter alia, certain conditions of, limitations and prohibitions on the economic and other activity in these areas, due to which the landscape, individual objects which are in corresponding areas can be changed, etc.

Under the Constitution, the state has the duty to take care also of these natural objects of state significance, which belong by right of ownership to other persons, but not to the state, and to secure their protection. This duty of the state cannot be interpreted as releasing the owners of corresponding natural objects from a duty to contribute themselves to the preservation of the said natural objects and to observe the legal regime established with regard to these natural objects.

Thus, due to the fact that in areas of particular value natural and other objects can belong by right of ownership to very varied subjects—the state, municipalities, as well as legal and natural persons—the discussed limitations and prohibitions may be established not only to the state and municipalities, but also to natural and legal persons. While seeking to secure the protection of areas of particular value, one can interfere by such limitations and prohibitions with the rights of ownership of all owners, including those of private land plots, forests, parks and water bodies. All said limitations and prohibitions must be constitutionally grounded, they must not restrict the rights of the owners and other persons more than it is necessary to achieve the universally important objectives (the Constitutional Court’s ruling of 14 March 2006).

6. In the context of the constitutional justice case at issue, it needs to be noted that the circumstance that the property to which the rights of ownership are restored is in the area which is categorised as an area of particular value, is a sufficient basis for the legislature to regulate the restoration of the rights of ownership to such property, by taking account of, inter alia, the legal status of the area. It needs to be emphasised that the legislature, while establishing the conditions and procedure for the restoration of the rights of ownership to land, forest and water bodies, which are in areas of particular value, cannot disregard the imperative arising from the Constitution to regulate these relations in the manner so that the protection of the areas of particular value is not undermined, since, as mentioned before, areas of particular value are a national value of universal significance, it is necessary to preserve them for posterity, the protection is a public interest to guarantee which is a constitutional obligation of the state.

7. From the Constitution (inter alia, the provision of Paragraph 2 of Article 128 thereof that the procedure for the possession, use and disposal of state property shall be established by law) follows the requirement to treasure state-owned property, not to waste it and manage it rationally. Under the Constitution, laws must protect the rights of all owners, thus, including the right of ownership of the state as the organisation of the entire society. It is not permitted to establish any such legal regulation according to which the property that belongs to the state by right of ownership would be possessed, used or disposed of in such a manner so that the interests or needs of only one social group or individual persons are satisfied and that this property does not serve the public interest, the need of society, and the welfare of the nation, or that this property belonging 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).

In its rulings the Constitutional Court has held more than once that on the basis of arbitrary acts of the occupation government there could not appear, nor there appeared any lawful state or public property and that the property expropriated from people in such fashion should be regarded only as property which is in fact possessed by the state. In such a situation, where the state in fact temporarily possesses and uses the property, which does not belong to it by right of ownership, the said property must also be possessed and used by heeding the same constitutional requirements as in the possession and usage of property which belongs to the state by right of ownership.

If the objects of nature which are in areas of particular value belong by right of ownership to the state, then, regardless of whether or not they are recognised as objects of state importance, they may be transferred to ownership of other persons only in the case (and only in this manner), when this is constitutionally grounded; inter alia, the legal regulation whereby land, forests, parks and water bodies which are in areas of particular value and which belong by right of ownership to the state may be transferred to ownership of certain other subjects either gratis or for an unreasonably small price, as well as the legal regulation whereby land, forests, parks and water bodies which are in areas of particular value and which belong by right of ownership to the state may be transferred to ownership of other persons when the rights of ownership is being restored to them in equivalent kind, i.e. when one transfers to ownership of the person, who did not have the ownership right to the object that is in areas of particular value—land, forest, park, or water body—precisely such object in kind, would lack such constitutional grounds (the Constitutional Court’s ruling of 14 March 2006).

8. In the context of the constitutional justice case at issue, it needs to be especially emphasised that the legislature, while enjoying the powers to establish also such a way of the restoration of the rights of ownership of citizens, where, in case there is no possibility of restoring in kind the plot of land, forest or water body which had belonged to the person by right of ownership prior to the unlawful nationalisation or other unlawful expropriation, the rights of ownership are restored by assigning to the person a plot of land, forest or water body which is in another locality, but which is of equal value to the former one, however, under the Constitution, it cannot establish any such way of the restoration of the rights of ownership to the existing real property, where instead of a previously possessed plot of land, forest or water body in another locality the person is assigned land, forest or a water body as property of equal value which, however, is in the areas categorised as areas of particular value. Such legal regulation would create legal preconditions for the occurrence of the qualitative changes in the areas of particular value, to control which would be very difficult, and it would not be in line with Article 54, Paragraph 2 of Article 128 of the Constitution and the constitutional principle of a state under the rule of law.

9. As mentioned before, the Constitution does not prohibit the regulation, by means of a law, of the restoration of the rights of ownership to the existing real property in a differentiated manner also in the aspect that the conditions and procedure of the restoration of the rights of ownership may also differ, inter alia, according to the fact as to what kind of ownership (land, forest, water body) the rights of ownership are restored, as well as according to the fact in what territory the property to which the rights of ownership are restored is situated, however, one must heed the constitutional principle of a state under the rule of law which includes, inter alia, the protection of legitimate expectations, legal certainty and legal security.

In the context of the constitutional justice case at issue, it needs to be noted that the legislature can also establish the legal regulation whereby in the territory of areas of particular value (in state parks and state reserves) the person is returned precisely the land, forest, water body in kind, which had belonged to him by right of ownership prior to the unlawful nationalisation or other unlawful expropriation, provided they are not purchased by the state.

10. In the context of the constitutional justice case at issue, it needs to be held that there are not any constitutional arguments which would permit asserting that also such legal regulation is in general impermissible whereby in the course of restoration of the rights of ownership to a person, who resides in the territory of a state park or a state reserve, and who used to possess land, forest, water body by right of ownership in the territory of the same state park or state reserve, which, according to the law, is not permitted to be returned in kind (it is purchased by the state), is (instead of the formerly possessed land, forest, water body) assigned a plot of land, forest, water body respectively of equal value in another part of that state park or the state reserve. However, such a way of restoration of the rights of ownership to the existing real property should not create any legal preconditions for the occurrence of the qualitative changes in the areas of particular value, to control which would be very difficult (which could occur, e.g., due to the too active economic or other activity in the state park or state reserve). Thus, such a way of the restoration of the rights of ownership to the existing real property is not impermissible with regard to the persons who used to possess by right of ownership land, forest, a water body in the territory of a state park or a state reserve, which, according to the law, cannot be returned in kind (it is purchased by the state) and who reside in the territory of the said state park or the state reserve; such restoration of the rights of ownership to the said persons should not pose a threat to the preservation of the state parks or the state reserves as areas of particular value.

11. The legal regulation whereby a certain plot of land, forest or a water body in the territory of a state park or a state reserve is assigned to citizens as property of equal value for the previously possessed land, forest or a water body in the territory of a state park or a state reserve, which, according to the law, is not permitted to be returned in kind (it is purchased by the state), who do not reside in the territory of that state park or the state reserve, should be assessed differently, since such restoration of the rights of ownership to the existing real property would create preconditions for the occurrence of the qualitative changes in the areas of particular value, to control which would be very difficult (which could occur, e.g., due to the too active economic or other activity in the state park or state reserve) and would pose a threat to the preservation of the state parks or the state reserves as areas of particular value. Such legal regulation would be constitutionally groundless—it would be incompatible with Article 54 and Paragraph 2 of Article 128 of the Constitution and the constitutional principle of a state under the rule of law.

IV

On the compliance of Paragraph 7 (wording of 13 May 1999) of Article 16 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property with Articles 18, 29, and 32 of the Constitution and on the compliance of the same paragraph (wording of 11 December 2001) to the extent that it provides that land, forest or water bodies in state parks and state reserves shall without payment be assigned to ownership in an area of land, forest or water body of equal value, without parcelling out the plot into parts, except land of an individual farm, only to those citizens who use land for an individual farm in these territories or who, on 17 August 2001, resided and possessed by right of ownership residential houses or flats, parts thereof in a state park and state reserve, and in villages and small towns adjoining them, with Article 29 of the Constitution and the constitutional principle of a state under the rule of law.

1. As mentioned before, it was established in Paragraph 7 (wording 13 May 1999) of Article 16 of the Law that “land and forest in state parks and state reserves shall be given back by transferring into ownership a plot of land or a plot of forest respectively, which must be of equal value to the one held previously, only to the citizens who reside in the region in which a state park or state reserve is situated”.

The notion “region” in the cited provision was then and is at present understood as the territory of a corresponding municipality.

2. Thus, under Paragraph 7 (wording 13 May 1999) of Article 16 of the Law, the rights of ownership to land, forest could be restored: (1) to the citizens the land or forest belonging to whom by right of ownership was, prior to the unlawful nationalisation or other unlawful expropriation, in the territory of a state park or state reserve; (2) to the citizens the land or forest belonging to whom by right of ownership was, prior to the unlawful nationalisation or other unlawful expropriation, not in the territory of a state park or state reserve, but in another place. In addition, there is not opportunity to restore the rights of ownership to the existing real property neither to the former, not the latter said citizens by returning in kind precisely the plot of land or forest which used to belong to them by right of ownership—the land or forest which is situated in state parks or state reserves is assigned to their ownership as property which is equal in the value to the property (land, forest) that they used to possess; the said land, forest are assigned as ownership only to the citizens who reside in that region in which the state park or the state reserve is situated.

3. While deciding whether the legislature, when establishing in Paragraph 7 (wording 13 May 1999) of Article 16 of the Law that in state parks and state reserves land and forest are returned by assigning as ownership a land or forest plot respectively which is of equal value to the one possessed previously, only to citizens, who reside in that region in which the state park or the state reserve is situated, did not act ultra vires, whether it did not overstep the limits of its discretion, the fact is of essential importance that after the condition alone was established whereby one had to reside in the region in which the state park or the state reserve is situated, also the persons acquired the right to restore the rights of ownership by receiving a plot of land or forest, which is of equal value to the one possessed previously and which is in the territory of the state park or the state reserve, meanwhile, the land or forest of these persons, which was unlawfully nationalised or unlawfully expropriated otherwise, has never been in the territory of a state park or a state reserve—it was in another place.

These conditions (to reside in the region in which the state park or the state reserve is situated) established in Paragraph 7 (wording 13 May 1999) of Article 16 of the Law are not sufficient so that it would be possible to hold that the legislature, while establishing as to what persons the right of ownership can be restored by assigning a plot of land or forest as ownership, which is of equal value to the one possessed formerly and which is in the territory of the state park of the state reserve, heeded the aforesaid requirements of Articles 54 and 128 of the Constitution. The so-called moving of the land or forest, which used to be previously possessed by the person and which was in the territory that was not within a state park or a state reserve, to the territory of a state park or a state reserve only on the grounds that the said person resides in the region in which the state park or the state reserve is situated, cannot be regarded as constitutionally reasoned.

4. The legal regulation established in Paragraph 7 (wording 13 May 1999) of Article 16 of the Law permitted the restoration of the rights of ownership by assigning a plot of land or forest respectively, which was of equal value to that possessed previously in state parks and state reserves, inter alia, to such citizens who reside in the territory of the state park or the state reserve and whose land or forest, which was unlawfully nationalised or unlawfully expropriated otherwise, is in the territory of the same state park or state reserve, however, it is impossible to return this land or forest in kind (they are purchased by the state).

It has been held in this ruling of the Constitutional Court that there are not any constitutional arguments which would permit asserting that such a way of the restoration of the rights of ownership to the existing real property where, in the course of restoration of the rights of ownership to persons, who reside in the territory of a state park or a state reserve, and who used to possess land or forest by right of ownership in the same territory, which, according to the law, is not permitted to be returned in kind (it is purchased by the state), is (instead of the formerly possessed land, forest) assigned a plot of land, forest respectively of equal value in another part of the state park or the state reserve, is impermissible, also, that such restoration of the rights of ownership to the said persons should not pose a threat to the preservation of the state parks or the state reserves as areas of particular value.

It has been also held that the legal regulation whereby a certain plot of land or forest in the territory of a state park or a state reserve is assigned to citizens as property of equal value for the previously possessed land, forest or a water body in the territory of a state park or a state reserve, which, according to the law, is not permitted to be returned in kind (it is purchased by the state), who do not reside in the territory of that state park or the state reserve, would create preconditions for the occurrence of the qualitative changes in the areas of particular value, to control which would be very difficult (which could occur, e.g., due to the too active economic or other activity in the state park or state reserve) and would pose a threat to the preservation of the state parks or the state reserves as areas of particular value; such legal regulation would be constitutionally groundless—it would be incompatible with Article 54 and Paragraph 2 of Article 128 of the Constitution and the constitutional principle of a state under the rule of law.

5. Taking account of the arguments set forth, it should be held that Paragraph 7 (wording of 13 May 1999) of Article 16 of the Law to the extent that it provided that the rights of ownership could be restored by assigning to ownership a plot of land or forest respectively, which is of equal value to the one possessed previously, which is in the territory in a state park or state reserve, to the citizens whose land or forest, which belonged to them by right of ownership and which was unlawfully nationalised or unlawfully expropriated, used to be, prior to the unlawful nationalisation or unlawful expropriation, not in the territory of that state park or state reserve, but in another place, as well as to the citizens whose land or forest, which belonged to them by right of ownership and which was unlawfully nationalised or unlawfully expropriated, used to be, prior to the unlawful nationalisation or unlawful expropriation, in the territory of that state park or state reserve, but who do not reside in the territory of that state park or state reserve, was in conflict with Article 54 and Paragraph 2 of Article 128 of the Constitution and the constitutional principle of a state under the rule of law.

6. As mentioned before, by Paragraph 2 of Article 6 of the Law on Amending and Supplementing Articles 2, 4, 6, 10, 12, 16 and 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 3 August 2001 and which came into force on 17 August 2001, Paragraph 7 (wording of 13 May 1999) of Article 16 of the Law was amended and set forth in a new wording. It was prescribed that “land and forest in state parks and state reserves shall not be given back by transferring into ownership a plot of land or a plot of forest respectively, as that of equal value to the one held previously”. It needs to be held that such amendment of the Law abolished the possibility that had existed until then to receive as ownership the land or forest in the territory of state parks and state reserves, which is of equal value to the land or forest that one possessed previously and to the land or forest of equal value that one possessed previously in another part of the territory of state parks and state reserves.

Paragraph 7 (wording of 3 August 2001) of Article 16 of the Law was amended by the Law on Amending and Supplementing Articles 12, 13 and 16 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which was adopted by the Seimas on 11 December 2001 and which came into force on 28 December 2001. Besides, this paragraph (wording of 3 August 2001) is not impugned in the constitutional justice case at issue. The Constitutional Court will not investigate its relation with the Constitution.

7. As mentioned before, Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law provides:

Land, forest or water bodies in state parks, except Nemunas Delta Regional Park, and state reserves shall without payment be assigned to ownership in an area of land, forest or water body of equal value, without parcelling out the plot into parts, except land of an individual farm, only to those citizens who use land for an individual farm in these territories or who, prior to 17 August 2001, resided and possessed by right of ownership residential houses or flats, parts thereof in a state park and state reserve, and in villages and small towns adjoining them, as well as to the citizens who resided in these territories prior to 17 August 2001, whose spouses had a residential house or a flat, or a part thereof in these territories. Land in Nemunas Delta Regional Park shall be assigned to ownership in a plot of land of equal value without parcelling out it into parts, except land of an individual farm, to those citizens who resided in the territory of the said regional park, as well as in the Šilutė and Pagėgiai municipalities. On the basis of land survey plans of the land reform approved prior to 17 August 2001, land, forest or water bodies in state parks and state reserves shall be given back to the citizens who resided and possessed by right of ownership residential houses or flats, parts thereof in the region in which a state park or state reserve is situated, by respectively assigning to the ownership without payment a plot of land, forest or a water body of the value equal to the one possessed previously.”

Thus, under Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law, land, forest or water bodies in state parks, except Nemunas Delta Regional Park, and state reserves shall without payment be assigned to ownership in an area of land, forest or water body of equal value, without parcelling out the plot into parts, only to those citizens who meet at least one the following conditions: (1) they use land for an individual farm in the territory of a state park or state reserve; (2) prior to 17 August 2001, they resided and possessed by right of ownership residential houses or flats, parts thereof in a state park and state reserve; (3) prior to 17 August 2001, they resided and possessed by right of ownership residential houses or flats, parts thereof in villages and small towns adjoining state parks and state reserves; (4) they resided in a state park or state reserve prior to 17 August 2001, provided their spouses had a residential house or a flat, or a part thereof in these territories. In addition, under Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law, it is permitted to restore the rights of ownership to the existing real property by assigning land, forest or water bodies which are in state parks and state reserves to the citizens who resided and possessed by right of ownership residential houses or flats, parts thereof in the region in which a state park or state reserve is situated—in such a case one follows the land survey plans of the land reform approved prior to 17 August 2001. Meanwhile, the citizens who aspire to restore the rights of ownership in Nemunas Delta Regional Park are applied only one requirement, which is to reside in the territory of this regional park as well as in the Šilutė and Pagėgiai municipalities.

8. The provisions of Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law, which are impugned by the Šiauliai Regional Administrative Court, a petitioner, namely, that land, forest or water bodies in state parks and state reserves shall without payment be assigned to ownership in an area of land, forest or water body of equal value, without parcelling out the plot into parts, except land of an individual farm, only to those citizens who use land for an individual farm in these territories or who, on 17 August 2001, resided and possessed by right of ownership residential houses or flats, parts thereof in a state park and state reserve, and in villages and small towns adjoining them, is related with the other provisions of this paragraph.

9. While deciding whether Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law to the extent specified by the Šiauliai Regional Administrative Court, a petitioner, is not in conflict with the Constitution, it needs to be held that all the conditions specified in this paragraph imply an opportunity to restore the rights of ownership by assigning to ownership without payment a plot of land, forest or a water body of equal value in state parks and state reserves not only to the citizens, whose land or forest, which belonged to them by right of ownership, was, prior to the unlawful nationalisation or other unlawful expropriation, in the territory of that state park or state reserve, but also to the citizens, whose land or forest, which belonged to them by right of ownership, was, prior to the unlawful nationalisation or other unlawful expropriation, not in the territory of the state park or state reserve, but in another place, and it is not important whether these citizens reside in the territory of that state park of state reserve or in another place.

10. It has been mentioned that there are not any constitutional arguments that such way of restoration of the rights of ownership to the existing real property where, in the course of restoration of the rights of ownership to persons, who reside in the territory of a state park or a state reserve, and who used to possess land, forest or water body by right of ownership in the same territory, which, according to the law, is not permitted to be returned in kind (it is purchased by the state), is (instead of the formerly possessed land, forest) assigned a plot of land, forest or water body respectively of equal value in another part of the state park or the state reserve, is impermissible, also, that such restoration of the rights of ownership to the said persons should not pose a threat to the preservation of the state parks or the state reserves as areas of particular value. It has also been mentioned that the legal regulation whereby a certain plot of land, forest or a water body in the territory of a state park or a state reserve is assigned to citizens as property of equal value for the previously possessed land, forest or a water body in the territory of a state park or a state reserve, which, according to the law, is not permitted to be returned in kind (it is purchased by the state), who do not reside in the territory of that state park or the state reserve would create preconditions for the occurrence of the qualitative changes in the areas of particular value, to control which would be very difficult (which could occur, e.g., due to the too active economic or other activity in the state park or state reserve) and would pose a threat to the preservation of the state parks or the state reserves as areas of particular value, and that such legal regulation would be constitutionally groundless—it would be incompatible with Article 54 and Paragraph 2 of Article 128 of the Constitution and the constitutional principle of a state under the rule of law.

11. It has been held in this ruling of the Constitutional Court that Paragraph 7 (wording of 13 May 1999) of Article 16 of the Law to the extent that it provided that the rights of ownership could be restored by assigning to ownership a plot of land or forest respectively, which is of equal value to the one possessed previously, which is in the territory in a state park or state reserve, to the citizens whose land or forest, which belonged to them by right of ownership and which was unlawfully nationalised or unlawfully expropriated, used to be, prior to the unlawful nationalisation or unlawful expropriation, not in the territory of that state park or state reserve, but in another place, as well as to the citizens whose land or forest, which belonged to them by right of ownership and which was unlawfully nationalised or unlawfully expropriated, used to be, prior to the unlawful nationalisation or unlawful expropriation, in the territory of that state park or state reserve, but who do not reside in the territory of that state park or state reserve, was in conflict with Article 54 and Paragraph 2 of Article 128 of the Constitution and the constitutional principle of a state under the rule of law.

On the grounds of the arguments analogous to those due to which Paragraph 7 (wording of 13 May 1999) of Article 16 of the Law was recognised to be in conflict with the Constitution, it should also be held that Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law to the extent that it provides that the rights of ownership could be restored by assigning to ownership a plot of land, forest or a water body respectively, which is of equal value to the one possessed previously, which is in the territory in a state park or state reserve, to the citizens, whose land, forest or water body, which belonged to them by right of ownership and which was unlawfully nationalised or unlawfully expropriated, used to be, prior to the unlawful nationalisation or unlawful expropriation, not in the territory of that state park or state reserve, but in another place, as well as to the citizens, whose land, forest or water body, which belonged to them by right of ownership and which was unlawfully nationalised or unlawfully expropriated, used to be, prior to the unlawful nationalisation or unlawful expropriation, in the territory of that state park or state reserve, but who do not reside in the territory of that state park or state reserve, but in another place, is in conflict with Article 54 and Paragraph 2 of Article 128 of the Constitution and the constitutional principle of a state under the rule of law.

12. After one has held this, the investigation into the compliance of Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law with the Constitution to the extent specified by the Šiauliai Regional Administrative Court, a petitioner, becomes meaningless.

13. It needs to be emphasised that the fact that Paragraph 7 (wordings of 13 May 1999 and 11 December 2001) of Article 16 of the Law has been recognised to be in conflict, to the corresponding extent, with the Constitution does not mean and cannot be interpreted as the grounds to review the state and municipal decisions, which have already been adopted and executed, whereby in the course of restoration of the rights of ownership, subsequent to the laws and other legal acts valid at the corresponding time, citizens were assigned to ownership land, forests, water bodies which were in state parks and state reserves as property of equal value instead of the property which used to be possessed by the citizens not in that state park or state reserve, but in another place.

The recognition that Paragraph 7 (wordings of 13 May 1999 and 11 December 2001) of Article 16 of the Law to the corresponding extent is in conflict with the Constitution does not mean and cannot be interpreted as the grounds to review the state and municipal decisions, which have already been adopted and executed, whereby subsequent to the laws and other legal acts valid at the corresponding time, citizens were assigned land, which is in the territory of a state park or state reserve, as land of so-called individual farm or it was permitted to acquire this land of individual farm as ownership, as well as the state and municipal decisions, which have already been adopted and executed, whereby, subsequent to the laws and other legal acts valid at the corresponding time, citizens were assigned other land, which is in the territory of a state park or state reserve, or it was permitted to acquire that land as ownership.

V

On the compliance of Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property to the extent that it provides that the area of the vacant (non-built-up) land given back in kind shall be reduced to the size of a plot of land of one hectare, provided that plots of land are designed on it, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of this article and they cannot be designed within other territories of the town due to the lack of vacant (non-built-up) land in this town with Paragraph 3 of Article 23 of the Constitution.

1. As mentioned before, under Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law, the rights of ownership to the land, which was situated prior to 1 June 1995 within the territory that was assigned in the prescribed manner to towns, shall be restored “by giving back in kind to a citizen or citizens the vacant (non-built-up) land in the former locality by the right of joint ownership, as well as to a citizen, possessing the buildings by the ownership right, a plot of land in use by this citizen the boundaries of which are defined in territorial planning documents, with the exception of the land categorised, under Article 12 of this Law, as land subject to purchase by the State, as well as the land a citizen does not wish to be given back in the former locality. The area of the vacant (non-built-up) land given back in kind shall be reduced to the size of a plot of land of one hectare, provided that plots of land are designed on it, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of this Article and they cannot be designed within other territories of the town due to the lack of vacant (non-built-up) land in this town. The plans of vacant (non-built-up) land plots which are provided for returning in kind at the locality previously possessed shall be confirmed by municipal councils under procedure established by the Government”.

2. The Vilnius Regional Administrative Court, a petitioner, impugns the compliance of not the entire legal regulation established in Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law with the Constitution, but only whether this item was not in conflict with the Constitution to the extent that it provided that the area of the vacant (non-built-up) land given back in kind shall be reduced to the size of a plot of land of one hectare, provided that plots of land are designed on it, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of this article and they cannot be designed within other territories of the town due to the lack of vacant (non-built-up) land in this town and in the aspect whether such legal regulation does not limit the restoration of the rights of ownership to vacant (non-built-up) land in kind, if there is not any concrete need of society to that concrete land.

In the constitutional justice case at issue, the Constitutional Court will investigate the compliance of Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law with the Constitution only to the extent and in the aspect specified by the Vilnius Regional Administrative Court, a petitioner.

3. Under Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law, the rights of ownership to the land, which was situated prior to 1 June 1995 within the territory that was assigned in the prescribed manner to towns, were restored: (1) by returning the citizens in kind precisely that land, which belonged to them by right of ownership prior to the unlawful nationalisation or other unlawful expropriation; (2) to the citizens possessing buildings by the ownership right—by returning in kind a plot of land in use by this citizen the boundaries of which are defined in territorial planning documents. The land was returned in kind only to both groups of citizens in case it had not been categorised as land subject to purchase by the state. In addition, to all these citizens the area of the vacant (non-built-up) land given back in kind was reduced to the size of one hectare, provided that plots of land are designed on it, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of Article 5 of this law and they cannot be designed within other territories of the town due to the lack of vacant (non-built-up) land in this town. In this context, it needs to be mentioned that, under Item 3 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law, the rights of ownership to the land, which was situated prior to 1 June 1995 within the territory that was assigned in the prescribed manner to towns, were restored, inter alia, by assigning without payment a new plot of land into the ownership of a citizen, which was prepared or not prepared for use in a manner prescribed by the Government, when the Government had approved its size in the same town in which was the previously owned land, with the exception of the territory of Curonian Spit National Park.

4. As mentioned before, the state, while striving to restore justice in part at least, i.e. to restore the violated rights of ownership, chose restricted restitution but not restitutio in integrum; such choice was determined, among other factors, by the extent of the restoration of the rights of ownership and the limited material and financial capabilities of the state; when one establishes, by means of laws, the conditions and procedure of restoration of the rights of ownership, it is necessary to take account of the changed social, economic, and other conditions; in the process of the restoration of the rights of ownership it is necessary to co-ordinate the interests of the persons who seek to restore the rights of ownership and the needs of society; in the course of restoration of the rights of some persons it is not permitted to violate the rights of other persons; it is impossible to attain justice by recognising the interests of only one group or one person and by denying the interests of others at the same time; while restoring justice in regard of the owners, one cannot ignore justice in regard of the entire society whose members are also the owners as well.

5. In the context of the constitutional justice case at issue, it needs to be noted that the legislature, while enjoying, under the Constitution, the discretion to establish the conditions and procedure for the restoration of the rights of ownership to the existing property, also enjoys the powers to establish such legal regulation whereby all vacant (non-built-up) land in towns is returned in kind to its owners, if there is not any concrete need of society to that land (the Constitutional Court’s ruling of 2 April 2001).

Thus, the legislature also has the powers to establish the maximum size of the vacant (non-built-up) land in towns, which must be returned to citizens, provided this is constitutionally grounded.

6. It has been held in this ruling of the Constitutional Court that it is impossible to identify the state-purchase of the existing real property from the citizens to whom the right of ownership is restored with the seizure of property from the owner for the needs of society (under Paragraph 3 of Article 23 of the Constitution).

Thus, the content of the notion “needs of society” employed in Paragraph 3 of Article 23 of the Constitution is not identical to the concept of the needs of society due to which in the course of the restitution certain property is not returned to the owners in kind, but is purchased by the state. The concept of the needs of society due to which, in the course of the restitution, is not returned to the owners in kind, but is purchased by the state, is much broader than the content of the notion “needs of society” employed in Paragraph 3 of Article 23 of the Constitution.

7. While one decides whether Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law was not in conflict with the Constitution to the extent and in the aspect specified by the Vilnius Regional Administrative Court, a petitioner, the fact is of essential importance that the area of the vacant (non-built-up) land given back in kind was reduced to the size of a plot of land of one hectare precisely because plots of land are designed on the vacant (non-built-up) plot of land, which is subject to being returned to the citizen and which is being transferred without payment to the citizens who, prior to the unlawful nationalisation or other unlawful expropriation, used to have a plot of land by right of ownership in the same town, for individual construction, and provided such plots cannot be designed within other territories of the town due to the lack of vacant (non-built-up) land in this town.

8. In its ruling of 2 April 2001, the Constitutional Court has held that under Paragraph 2 of Article 5 of the Law, the citizens, to whom it is impossible to restore the right of ownership to land in kind to the land they previously held, may be transferred other plots of land without payment; that, under the Law, for these purposes also the vacant (not built over) land is used which its owners seek to be given back in kind; that such land is purchased by the state; also, that in such a manner the rights of ownership to the nationalised land of a greater number of owners to whom it is impossible to return their previously held urban land in kind are in part restored in kind by transferring them the plots of land of the established area lying in the territories of towns as partial compensation in kind. It was also held in the same ruling of the Constitutional Court that, while one takes account of the changes of the ownership-related relations which occurred during the period after the unlawful nationalisation, state-purchase of a certain part of private vacant (not built over) land in an attempt to restore the rights of ownership to the nationalised land for as many owners as possible by transferring them the plots of land into ownership without payment reflects the interest of society.

9. In the context of the constitutional justice case at issue, it needs to be held that there are not any constitutional arguments which would permit asserting that the ground established in Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law whereby not whole vacant (non-built-up) land in town is returned to a citizen, but only not more than one hectare, is incompatible with Paragraph 3 of Article 23 of the Constitution.

In addition, there are not any constitutional arguments which would permit asserting that the size of the vacant (non-built-up) land in town—not more than one hectare—established in Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law is incompatible with Paragraph 3 of Article 23 of the Constitution.

10. Taking account of the arguments set forth, the conclusion should be drawn that Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law to the extent that it provides that the area of the vacant (non-built-up) land given back in kind shall be reduced to the size of a plot of land of one hectare, provided that plots of land are designed on it, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of this article and they cannot be designed within other territories of the town due to the lack of vacant (non-built-up) land in this town was not in conflict with Paragraph 3 of Article 23 of the Constitution.

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 Paragraph 7 (wording of 13 May 1999) of Article 16 of the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (Official Gazette Valstybės žinios, 1999, No. 48-1522) to the extent that it provided that the rights of ownership could be restored by assigning to ownership a plot of land or forest respectively, which is of equal value to the one possessed previously, which is in the territory in a state park or state reserve, to the citizens whose land or forest, which belonged to them by right of ownership and which was unlawfully nationalised or unlawfully expropriated, used to be, prior to the unlawful nationalisation or unlawful expropriation, not in the territory of that state park or state reserve, but in another place, as well as to the citizens whose land or forest, which belonged to them by right of ownership and which was unlawfully nationalised or unlawfully expropriated, used to be, prior to the unlawful nationalisation or unlawful expropriation, in the territory of that state park or state reserve, but who do not reside in the territory of that state park or state reserve, was in conflict with Article 54 and Paragraph 2 of Article 128 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

2. To recognise that Paragraph 7 (wording of 11 December 2001) of Article 16 of the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (Official Gazette Valstybės žinios, 2001, No. 108-3904) to the extent that it provides that the rights of ownership could be restored by assigning to ownership a plot of land, forest or a water body respectively, which is of equal value to the one possessed previously, which is in the territory in a state park or state reserve, to the citizens, whose land, forest or water body, which belonged to them by right of ownership and which was unlawfully nationalised or unlawfully expropriated, used to be, prior to the unlawful nationalisation or unlawful expropriation, not in the territory of that state park or state reserve, but in another place, as well as to the citizens, whose land, forest or water body, which belonged to them by right of ownership and which was unlawfully nationalised or unlawfully expropriated, used to be, prior to the unlawful nationalisation or unlawful expropriation, in the territory of that state park or state reserve, but who do not reside in the territory of that state park or state reserve, but in another place, is in conflict with Article 54 and Paragraph 2 of Article 128 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

3. To recognise that Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (Official Gazette Valstybės žinios, 2002, No. 41-1526) to the extent that it provides that the area of the vacant (non-built-up) land given back in kind shall be reduced to the size of a plot of land of one hectare, provided that plots of land are designed on it, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of this article and they cannot be designed within other territories of the town due to the lack of vacant (non-built-up) land in this town was not in conflict with Paragraph 3 of Article 23 of the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:         Toma Birmontienė

                                                                              Egidijus Kūris

                                                                              Kęstutis Lapinskas

                                                                              Zenonas Namavičius

                                                                              Ramutė Ruškytė

                                                                              Vytautas Sinkevičius

                                                                              Stasys Stačiokas

                                                                              Romualdas Kęstutis Urbaitis