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On the interpretation of the provisions of the Constitutional Court’s ruling of 5 July 2007 related to 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

DECISION

ON THE CONSTRUCTION OF THE CONSTITUTIONAL COURT’S 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” OF 5 JULY 2007

4 July 2008
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Kęstutis Lapinskas, Zenonas Namavičius, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Gintarė Dešukaitė, an advisor of the Bureau of the Seimas Committee on Rural Affairs, acting as the representative of the Speaker of the Seimas of the Republic of Lithuania, who submitted a petition requesting the construction of the ruling of the Constitutional Court of the Republic of Lithuania of 5 July 2007

The Constitutional Court of the Republic of Lithuania, pursuant to Article 61 of the Law on the Constitutional Court of the Republic of Lithuania, on 2 July 2008, in its public hearing, considered the petition of Česlovas Juršėnas, Speaker of the Seimas of the Republic of Lithuania, requesting the construction as to from which moment, according to the Constitutional Court’s 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” of 5 July 2007, citizens hold the legitimate expectations that the rights of ownership will be restored to them by assigning to ownership a piece of (correspondingly) land, forest or water body of equal value to that which they used to possess, which is in the territory of a state park and state reserve.

The Constitutional Court

has established:

I

1. On 5 July 2007, in constitutional justice case No. 03/04-15/04-05/06, subsequent to 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), 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 a piece 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), and 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 piece 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), adopted the 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” (Official Gazette Valstybės žinios, 2007, No. 76-3018; hereinafter also referred to as the Constitutional Court’s ruling of 5 July 2007).

2. It was recognised in the Constitutional Court’s ruling of 5 July 2007 that:

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 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;

Paragraph 7 (wording of 11 December 2001) 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 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.

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 provided that the piece 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.

3. The Speaker of the Seimas, the petitioner, requests that the Constitutional Court construe as to from which moment, according to the Constitutional Court’s ruling of 5 July 2007, citizens hold the legitimate expectations that the rights of ownership will be restored to them by assigning to ownership a piece of (correspondingly) land, forest or water body of equal value to that which they used to possess, which is in the territory of a state park and state reserve.

II

At the Constitutional Court’s hearing, the representative of the Speaker of the Seimas, the petitioner, who submitted the petition requesting the construction of the Constitutional Court’s ruling of 5 July 2007, explained the reasons which prompted the petitioner to apply to the Constitutional Court and answered the questions given by the justices of the Constitutional Court.

The Constitutional Court

holds that:

I

1. The Law on the Constitutional Court consolidates the powers of the Constitutional Court to officially construe its rulings (Article 61 of the Law on the Constitutional Court). The Constitutional Court has also the powers to construe its other final acts (the Constitutional Court’s decisions of 6 April 2004, 14 March 2006 (Case No. 13/2000-14/2000-20/2000-21/2000-22/2000-25/2000-31/2000-35/2000-39/2000-8/01-31/01), 20 November 2006, 21 November 2006, 6 December 2007, and 1 February 2008).

2. Paragraph 1 of Article 61 of the Law on the Constitutional Court provides that a ruling of the Constitutional Court may only be officially construed by the Constitutional Court at the request of the parties to the case, of other institutions or persons to whom it was sent, or on its own initiative. Under Paragraph 2 of Article 60 of the Law on the Constitutional Court, the President of the Constitutional Court may order that a ruling of the Constitutional Court be sent to other institutions, officials, or citizens. Under the Order of the President of the Constitutional Court (No. 4B-10) “On Sending Final Acts of the Constitutional Court” of 29 March 2004, final acts of the Constitutional Court are sent, inter alia, to the Speaker of the Seimas. Thus, under Paragraph 1 of Article 61 of the Constitutional Court, the Speaker of the Seimas has the right to apply to the Constitutional Court with a petition requesting the construction of a ruling of the Constitutional Court.

3. A decision concerning the construction of a ruling of the Constitutional Court shall be adopted as a separate document (Paragraph 2 of Article 61 of the Law on the Constitutional Court).

4. The Constitutional Court has stated in its acts that the purpose of the institute of construction of rulings and other final acts of the Constitutional Court is to reveal the contents and meaning of the corresponding rulings or other final acts of the Constitutional Court more broadly and in more detail if it is necessary in order to ensure a proper execution of that ruling or other final act of the Constitutional Court so that the relevant ruling or other final of the Constitutional Court would be followed (the Constitutional Court’s decisions of 14 March 2006 (Case No. 13/2000-14/2000-20/2000-21/2000-22/2000-25/2000-31/2000-35/2000-39/2000-8/01-31/01), 21 November 2006, 6 December 2007, and 1 February 2008).

5. A ruling of the Constitutional Court is integral, its operative part is based upon the arguments of the part of reasoning; while construing its ruling, the Constitutional Court is bound both by the content of the operative part and the reasoning part of its ruling; the decision adopted concerning the construction of a ruling of the Constitutional Court is inseparable from that ruling of the Constitutional Court (the Constitutional Court’s decisions of 12 January 2000, 11 February 2004, 13 February 2004, 10 February 2005, 14 March 2006 (Case No. 13/2000-14/2000-20/2000-21/2000-22/2000-25/2000-31/2000-35/2000-39/2000-8/01-31/01), its ruling of 28 March 2006, its decisions of 21 November 2006, 6 December 2007, and 1 February 2008).

6. Under Paragraph 3 of Article 61 of the Law on the Constitutional Court, the Constitutional Court must construe its ruling without changing its content.

This provision of Paragraph 3 of Article 61 of the Law on the Constitutional Court means, among other things, that while construing its ruling, the Constitutional Court cannot construe its content so that the meaning of its provisions, inter alia, the notional entirety of the elements constituting the content of the ruling, the arguments and reasons upon which that ruling of the Constitutional Court is based, is changed, also that the Constitutional Court may not construe what was not investigated in that constitutional justice case, subsequent to which the construed ruling was adopted, either (the Constitutional Court’s decisions of 14 March 2006 (Case No. 13/2000-14/2000-20/2000-21/2000-22/2000-25/2000-31/2000-35/2000-39/2000-8/01-31/01), 28 March 2006, 21 November 2006, and 6 December 2007). The consideration of a petition requesting the construction of a ruling or another final act of the Constitutional Court does not imply a new constitutional justice case (the Constitutional Court’s decisions of 21 November 2006, 6 December 2007, and 1 February 2008).

In this context, it should be noted that the formula “shall be final and not subject to appeal” of Paragraph 2 of Article 107 of the Constitution, which provides that the decisions of the Constitutional Court on the issues within its competence according to the Constitution shall be final and not subject to appeal, means that the Constitutional Court’s rulings, conclusions and decisions by which a constitutional justice case is finished, i.e. final acts of the Constitutional Court, are obligatory to all state institutions, courts, all enterprises, establishments and organisations, as well as officials and citizens, including the Constitutional Court itself: final acts of the Constitutional Court are obligatory to the Constitutional Court itself, they restrict the Constitutional Court in the aspect that it may not change them or review them if there are no constitutional grounds for that (the Constitutional Court’s ruling of 28 March 2006, its decisions of 21 November 2006, 6 December 2007, and 1 February 2008).

Therefore, in the official construction (subsequent to a petition of the persons that participated in the case, other institutions and individuals, to whom the ruling of the Constitutional Court was sent, also on the initiative of the Constitutional Court itself) of rulings and other final acts of the Constitutional Court, the constitutional doctrine is not corrected. The correction of the official constitutional doctrine (which, undoubtedly, must always have a constitutional basis and be explicitly reasoned in a respective act of the Constitutional Court) should be related with the consideration of new constitutional justice cases and creation of new precedents of the Constitutional Court therein, but not with the official construction of provisions of the rulings and other final acts of the Constitutional Court (the Constitutional Court’s decisions of 6 December 2007 and 1 February 2008).

7. It should also be noted that the uniformity and continuity of the official constitutional doctrine implies the necessity to construe each construed provision of a ruling or another final act of the Constitutional Court by taking account of the entire official constitutional doctrinal context, including the context of other provisions (explicit and implicit) of the Constitution, which are related with the provision (provisions) of the Constitution in the course of the construction of which in a certain ruling or another final act of the Constitutional Court the corresponding official constitutional doctrine was formulated. No official constitutional doctrinal provision of a ruling or another final act of the Constitutional Court may be construed in isolation, by ignoring its meaning and systemic links with the other official constitutional doctrinal provisions set forth in that ruling or its other final act of the Constitutional Court, in other acts of the Constitutional Court, as well as with other provisions (explicit and implicit) of the Constitution (the Constitutional Court’s decisions of 21 November 2006, 6 December 2007, and 1 February 2008).

II

1. While construing, subsequent to the petition of the Speaker of the Seimas, the provisions of the Constitutional Court’s ruling of 5 July 2007, it needs to be noted that the following was investigated in the constitutional justice case in which the aforementioned ruling of the Constitutional Court was adopted:

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 (hereinafter also referred to as the Law) with the Constitution, to the extent that the said paragraph 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;

the compliance of Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law with the Constitution, to the extent that the said paragraph 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;

the compliance of Item 1 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law with the Constitution, to the extent that the said item provides that the piece 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.

2. The Speaker of the Seimas, the petitioner, on the grounds of the doctrinal provision of the Constitutional Court whereby in general and in certain special cases the Constitution does not prevent protection and defence also of such rights acquired by the person, which arise from the legal acts that were later ruled to be in conflict with the Constitution, requests the construction as to “from which moment, within the meaning of the Constitutional Court’s 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” of 5 July 2007, citizens hold the legitimate expectations that the rights of ownership will be restored to them by assigning to ownership a piece of (correspondingly) land, forest or water body of equal value to that which they used to possess, which is in the territory of a state park and state reserve”.

3. Under Paragraph 1 of Article 107 of the Constitution, a law (or part thereof) of the Republic of Lithuania or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution.

The Constitutional Court has noted that Paragraph 1 of Article 107 of the Constitution should be construed as meaning that every legal act (or part thereof) passed by the Seimas, the President of the Republic or the Government or adopted by referendum, which is ruled to be in conflict with any legal act of higher legal force, inter alia (and, first of all), with the Constitution, is removed from the Lithuanian legal system for good, it may never be applied anymore. The power of the Constitutional Court to rule a legal act or part thereof to be unconstitutional may not be overruled by a repeated adoption of a like legal act or part thereof (the Constitutional Court’s rulings of 30 May 2003, 28 March 2006, and 6 June 2006).

4. In this context it needs to be noted that in the official constitutional doctrine, inter alia, in the Constitutional Court’s ruling of 5 July 2007, it is stressed that 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.

These provisions of the official constitutional doctrine mean that the legal acts (parts thereof) that were ruled to be in conflict with the Constitution may not be applied from the day of the official publication of the respective ruling of the Constitutional Court, also, from that moment, as a rule, the rights of persons acquired under the legal acts, which were ruled to be in conflict with the Constitution, may not be implemented.

In addition, in its rulings, inter alia, its ruling of 5 July 2007, the Constitutional Court noted that in certain special cases the Constitution generally does not prevent from protecting and defending also such acquired rights of the person arising from the legal acts ruled later to be in conflict with the Constitution, 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 the case of total non-defence or non-protection or a partial defence or a partial protection of the said rights, and, also, when deciding whether the acquired rights gained by the person during the period of validity of the legal act which was later ruled to be in conflict with the Constitution (substatutory legal acts—to be 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.

As mentioned before, it is these doctrinal provisions of the Constitutional Court upon which the petition of the Speaker of the Seimas, the petitioner, is grounded.

5. It needs to be noted that although the petition of the petitioner has been formulated as a petition requesting the construction as to from which moment, according to the Constitutional Court’s ruling of 5 July 2007, citizens hold the legitimate expectations that the rights of ownership will be restored to them by assigning to ownership a piece of (correspondingly) land, forest or water body of equal value to that which they used to possess, which is in the territory of a state park and state reserve, it is clear from the explanations of the representative of the Speaker of the Seimas, the petitioner, which were presented at the Constitutional Court’s hearing, that the petitioner requests the construction as to from which moment citizens hold the legitimate expectations that the rights of ownership will be restored by assigning to ownership a piece of (correspondingly) land, forest or water body of equal value to that which they used to possess, which is in the territory of a state park and state reserve, to those 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.

III

1. It was established in Paragraph 7 (wording 13 May 1999) of Article 16 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property 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”.

While construing the said provision of Paragraph 7 (wording 13 May 1999) of Article 16 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, in its ruling of 5 July 2007 the Constitutional Court held that 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.

2. It was established in Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law 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 a piece 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.”

While construing the said provision of Paragraph 7 (wording of 11 December 2001) of Article 16 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, in its ruling of 5 July 2007, the Constitutional Court held that, under this provision, land, forest or water bodies in state parks, except Nemunas Delta Regional Park, and state reserves shall without payment be assigned to ownership in a piece 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.

3. In its acts the Constitutional Court has held more than once that the fact that the state resolved that the denied rights of ownership have to be restored, also the fact that a law regulating restitution relations was adopted and that implementation of the restoration of ownership rights was begun, created the legitimate expectation to the persons who have the right to restore their rights of ownership that they will be able to implement this right under the ways, conditions and procedure established by law; the said legitimate expectation is protected and defended by the Constitution; alongside, the duty arose for the state to regulate the restoration of the rights of ownership to the existing real property in a way so that the said legitimate expectation would be implemented in reality.

4. It was noted in the Constitutional Court’s ruling of 5 July 2007 that the State of Lithuania, while seeking 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 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. In the same ruling the Constitutional Court also held that 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. When the legislature establishes, by means of laws, the conditions and procedure of the restoration of the rights of ownership, it is necessary to take account of the changed social, economic, and other conditions.

4.1. The Constitutional Court’s ruling of 5 July 2007 also mentioned the provisions, which had been formulated in the previous acts of the Constitutional Court (rulings of 27 May 1994 and 23 August 2005), permitting the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property to stipulate 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 the inviolability of property and of the protection of ownership rights, since fair compensation also ensures the restoration of ownership rights.

4.2. It has been held in the Constitutional Court’s acts more than once that the legislature, having established the procedure and conditions for the restoration of the rights of ownership, emphasised the priority to the former owners to restore the land in kind; however, if, due to the existing factual relations of land use and the needs of society there are no possibilities of restoring the land in kind, they are guaranteed the right to choose the manner of the restoration of the rights of ownership under procedure and conditions established by law, inter alia, the restoration of the rights by means of equivalent kind.

4.3. After the legislature has chosen not restitutio in integrum, but limited restitution, the citizens who meet the requirements established in the Law to restore the rights of ownership were granted the right to restitution, however, not necessarily in the way required by the said citizens (provided there are not any possibility of restoring the rights of ownership in that particular way), but in the ways provided for in this law, while the choice of these ways is determined not by wishes of the claimants to property restoration, but by objective circumstances (obstacles to return property in kind or to compensate by property of equal value, which occurred due to factual relations of land use, and needs of society).

4.4. Therefore, the statement of the resolve of a citizen, who meets the requirements for the restoration of the rights of ownership, which are established in the Law, does not mean yet that the rights of ownership will be restored to him in the way that he wishes. Alongside, it needs to be noted that after he has properly stated his resolve, the claimant to property restoration can reasonably expect that the rights of ownership will be restored to him in the ways provided for in this law, by following the procedure established in the Law, and that in the course of the restoration of the rights of ownership the procedure provided for in the Law will not be violated (the authorised institutions will not procrastinate the performance of the actions that are within their competence).

5. As mentioned before, by the Constitutional Court’s ruling of 5 July 2007, 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 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 ruled to be 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.

It was also mentioned that the legal acts (parts thereof) that were ruled to be in conflict with the Constitution may not be applied from the day of the official publication of the respective ruling of the Constitutional Court, also, from that moment, as a rule, the rights of persons acquired under the legal acts that were ruled to be in conflict with the Constitution may not be implemented.

6. One of the elements of protection of legitimate expectations is protection of the rights acquired under the laws and other legal acts that are not in conflict with the Constitution; however, in certain special cases also a person’s rights which are acquired under legal acts, which were later ruled to be in conflict with the Constitution, must be protected and defended. These provisions of the official constitutional doctrine, which are referred to by the petitioner, are related with interpretation of the protection of the rights that were acquired under legal acts, which were later ruled to be in conflict with the Constitution.

In the context of the petition at issue, it needs to be noted that the persons who seek to restore the rights of ownership have not acquired the rights of ownership to a concrete object (real property) yet. In its rulings adopted in constitutional justice cases, wherein the compliance of legal acts (parts thereof) regulating the restoration of the rights of ownership of citizens to the existing real property with the Constitution was considered, the Constitutional Court held more than once that until the restoration of the property and the payment of corresponding compensation in the cases where the property is not returned in kind, the subjective rights of the former owner are not restored yet. A decision of the institution authorised by the state to return the property in kind or compensate for it have the legal meaning whereby only as from the adoption of such a decision the former owner acquires the rights of the owner to such property.

7. In this context, it also needs to be mentioned that the Constitutional Court’s ruling of 5 July 2007, whose construction is requested, was adopted in the constitutional justice case, wherein the compliance of the provisions of the Law regulating the restoration of the rights of ownership in state parks and state reserves with the Constitution was assessed. It was held in the Constitutional Court’s ruling of 5 July 2007 that state parks and state reserves are regarded as territories of special value. It was also held that 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.

7.1. In its acts the Constitutional Court has emphasised more than once that, under the Constitution, natural environment, wildlife and plants, individual objects of nature as well as districts of particular value are the national values of universal significance; to ensure their protection and rational use and augmentation of natural resources is the public interest to guarantee which is the constitutional obligation of the state (the Constitutional Court’s rulings of 13 May 2005, 27 June 2007, and 6 September 2007).

7.2. In its ruling of 6 September 2007, the Constitutional Court also noted that the state, while having the constitutional obligation to act so that one would guarantee the protection of natural environment and its individual objects, rational use of natural resources, their restoration and increase, may establish, by means of a law, also such legal regulation whereby the use of individual objects of natural environment (natural resources) would be limited.

7.3. The following has been held in the Constitutional Court’s ruling of 5 July 2007, the construction of the provisions of which is requested: the circumstance that the property to which the rights of ownership are restored is in the area which is assigned to areas 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; 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.

In addition, it was emphasised in the said ruling of the Constitutional Court 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, should be assessed differently, since such restoration of the rights of ownership to the existing real property would create preconditions for the occurrence of qualitative changes in the areas of particular value, to control which would be very difficult (which could occur, e.g., due to a 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.

8. Taking account of the special status of state parks and state reserves from the point of view of protection of natural environment and its objects, while the said status being the grounds to recognise these territories as territories of particular value and as a national value of universal significance whose preservation is a public interest, in the course of decision of issues of the restoration of the rights of ownership in these territories, one cannot disregard the imperatives of protection of natural environment, wildlife and plants, of individual objects of nature and of areas of particular value, all of which stem from the Constitution.

Thus, as it has been held in the Constitutional Court’s ruling of 5 July 2007, the interests of the persons to restore the rights of ownership in a state park or a state reserve, to whom, according to the Constitution, it is impossible to restore the rights of ownership in equivalent kind within the territory of a state park or a state reserve, but who had begun the process of the restoration of the rights of ownership in a state park or a state reserve prior to the adoption of the said ruling of the Constitutional Court, may not be put above the interest to preserve the state park or state reserve as a national value of exceptional significance, which, under the Constitution, is recognised a public interest.

9. Taking account of the arguments set forth, it needs to be held that, under the Constitutional Court’s ruling of 5 July 2007 (as mentioned before, it was recognised therein that 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 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 the Constitution), the citizens who used to possess land, forest, or a water body not within the territory of a state park or a state reserve, also those citizens, who do not reside in the said territory, may not be regarded as having the legitimate expectation to restore the rights of ownership by acquiring as ownership a piece of (correspondingly) land, forest or water body of equal value to that which they used to possess, which is in the territory of a state park and state reserve.

10. In this context, it needs to be noted that, after it has been held in the Constitutional Court’s ruling of 5 July 2007 that, under the Constitution, the citizens who used to possess land, forest, or a water body not within the territory of a state park or a state reserve, also those citizens, who do not reside in the said territory, may not restore the rights of ownership by acquiring as ownership a piece of (correspondingly) land, forest or water body of equal value to that which they used to possess, which is in the territory of a state park and state reserve, one cannot deny the legitimate expectation of these persons to restore the rights of ownership—this expectation persists, however, it can be implemented by another way of the restoration of the rights of ownership established in the Law.

11. Having held that the citizens who used to possess land, forest, or a water body not within the territory of a state park or a state reserve, also those citizens, who do not reside in the said territory, may not be regarded as having the legitimate expectation to restore the rights of ownership by acquiring as ownership a piece of (correspondingly) land, forest or water body of equal value to that which they used to possess, which is in the territory of a state park and state reserve, the decision of the question raised by the petitioner, which is “as to from which moment” these persons hold the legitimate expectations that the rights of ownership will be restored to them by assigning to ownership a piece of (correspondingly) land, forest or water body of equal value to that which they used to possess, which is in the territory of a state park and state reserve, becomes meaningless.

Conforming to Article 102 of the Constitution of the Republic of Lithuania, and Articles 1 and 61 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To construe that, according to the Constitutional Court’s 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” of 5 July 2007 (Official Gazette Valstybės žinios, 2007, No. 76-3018), 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 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, may not be regarded as having the legitimate expectation to restore the rights of ownership by acquiring as ownership a piece of (correspondingly) land, forest or water body of equal value to that which they used to possess, which is in the territory of a state park and state reserve, however, the legitimate expectation of these persons to restore the rights of ownership by another way established in the Law cannot be denied.

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

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

Justices of the Constitutional Court: Armanas Abramavičius
                                                                      Toma Birmontienė
                                                                      Kęstutis Lapinskas
                                                                      Zenonas Namavičius
                                                                      Egidijus Šileikis
                                                                      Algirdas Taminskas
                                                                      Romualdas Kęstutis Urbaitis