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On establishing the sizes of new plots of land transferred to citizens as compensation for real property that used to be possessed by them by right of ownership

Case No. 17/2012

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 

RULING

ON THE COMPLIANCE OF THE PROVISIONS OF THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 920) “ON THE APPROVAL OF THE SIZES OF NEW PLOTS OF LAND IN CITIES” OF 23 JULY 1998 (WORDING OF 31 MARCH 2010) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND WITH THE REPUBLIC OF LITHUANIA’S LAW ON THE RESTORATION OF THE RIGHTS OF OWNERSHIP OF CITIZENS TO THE EXISTING REAL PROPERTY

 

16 June 2015 No. KT19-N12/2015

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, Algirdas Taminskas, and Dainius Žalimas

The court reporters—Daiva Pitrėnaitė and Sigutė Brusovienė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, on 9 June 2015, in the Court’s hearing considered, under written procedure, constitutional justice case No. 17/2012 subsequent to the petition (No. 1B-26/2012) of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether the Resolution of the Government of the Republic of Lithuania (No. 920) “On the Approval of the Sizes of New Plots of Land in Cities” of 23 July 1998 (wording of 31 March 2010), insofar as it approves 0.12 ha as the maximum size for new plots of land to be transferred for individual construction in the city of Kaunas, is in conflict with Articles 23 and 29 of the Constitution of the Republic of Lithuania, with the constitutional principle of a state under the rule of law, and with Paragraph 3 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.

The Constitutional Court

has established:

I

The petition of the Supreme Administrative Court of Lithuania, the petitioner, is substantiated by the following arguments.

1. The constitutional principle of a state under the rule of law implies that the legislature and other law-making subjects are subject to various requirements, inter alia, this principle implies that they are allowed to pass legal acts only without exceeding their powers.

Paragraph 3 of Article 5 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) provides that the size of a new plot of land, to be transferred into the ownership of citizens for no consideration, which is located on the territory categorised as urban land shall, at the proposal of the town or district municipality, be approved by the Government. By the said paragraph, the legislature commissioned the Government to approve the sizes of new plots of land to be transferred to citizens for no consideration. At the same time, this provision consolidated the respective procedure for implementing these government powers—the Government may establish the said sizes only upon receiving a proposal of the relevant municipality. Such legal regulation also implies a certain competence of municipalities in this sphere, i.e. they may propose that the Government should establish the concrete sizes of new plots of land. No other institutions may take over or deny such competence of municipalities. It is only municipalities that can carry out full and objective evaluation of the possibilities of forming new plots of land on their territory, take account of local conditions and other circumstances, and thus ensure that the interests of the persons claiming the restoration of their rights of ownership and the interests of the other part of society would be balanced.

The Government must also pay heed to this procedure consolidated in Paragraph 3 of Article 5 of the Law when it amends the relevant legal regulation.

The material of the administrative case considered by the petitioner makes it clear that Kaunas City Municipality did not apply to the Government, formulating the relevant proposal for the establishment of the sizes of new plots of land in the city of Kaunas; in addition, nothing in the said administrative case indicates that a draft government resolution on the matter had been sent to Kaunas City Municipality for coordination.

Thus, in the absence of any proposal of Kaunas City Municipality, having adopted its Resolution (No. 920) “On the Approval of the Sizes of New Plots of Land in Cities” of 23 July 1998 (hereinafter also referred to as the government resolution of 23 July 1998) (wording of 31 March 2010) establishing 0.12 ha (instead of the former 0.2 ha) as the maximum size of new plots of land in the city of Kaunas to be transferred into the ownership of citizens for no consideration, the Government exceeded its powers, failed to adhere to the constitutional principle of a state under the rule of law, and failed to follow the procedure for approving the sizes of new plots of land as provided for in Paragraph 3 of Article 5 of the Law. Therefore, in the opinion of the petitioner, in view of the procedure of its adoption, the impugned legal regulation is in conflict with the constitutional principle of a state under the rule of law and with Paragraph 3 of Article 5 of the Law.

2. While establishing a certain legal regulation in the sphere of the restoration of the rights of ownership, the Government, inter alia, must pay heed to the imperatives of legal certainty, legal security, and the protection of legitimate expectations, which stem from the constitutional principle of a state under the rule of law, and must adhere to the official constitutional doctrine formed by the Constitutional Court.

Having adopted the legal acts governing the restoration of the rights of ownership of citizens to the existing real property, the legislature created the legitimate expectation for the persons entitled to have their rights of ownership restored that they will be able to implement this right in the manner, and under the procedure and conditions provided for by law. After the competent institutions recognise the right of a concrete individual to the restoration of the rights of ownership, such a legitimate expectation becomes reasonable, legitimate, and clearly expressed.

At the end of the process of the restoration of the rights of ownership, the persons in the queue for new plots of land for individual construction in the city of Kaunas held the legitimate expectation that their rights of ownership would be restored in precisely this manner. After the legal regulation impugned in the case at issue had been established, 71 persons were removed from the queue due to the fact that a new (smaller) size of new land plots to be transferred into the ownership of citizens for no consideration for individual construction in the city of Kaunas had been approved. In the opinion of the petitioner, since the long-lasting process of restoring the rights of ownership is coming to an end, and due to the long validity of the government resolution of 23 July 1998 (it was not amended from 1999 until 2010), after the said resolution had been changed, the legitimate expectations of persons to have their rights restored in this manner were denied. In addition, the right of persons to ownership, defended under Article 23 of the Constitution, might thus have been violated, since the establishment of the impugned legal regulation resulted in the reduction of the size of land plots to be transferred into the ownership of citizens for no consideration for individual construction in the city of Kaunas.

3. The persons who implemented their rights to the restoration of the rights of ownership prior to the entry into force of the Government Resolution (No. 345) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 920) ‘On the Approval of the Sizes of New Plots of Land in Cities’ of 23 July 1998” of 31 March 2010 (hereinafter also referred to as the government resolution of 31 March 2010) could be given new plots of land with the maximum size of 0.2 ha for no consideration for individual construction in other areas of the city of Kaunas. After the said resolution had come into force, the persons with respect to whom no decision on the restoration of their rights of ownership had been taken, lost the opportunity to restore their rights of ownership by receiving a new plot of land with the size of more than 0.12 ha (up to 0.2 ha) for no consideration for individual construction in the city of Kaunas, therefore, such persons were placed at a disadvantage in relation to those with respect to whom a decision on the restoration of their rights of ownership had already been taken. There are not any objective differences of such a character and to such an extent between the said persons so that such a different legal regulation could be deemed to be constitutionally well-founded. In the opinion of the petitioner, the different date of filing an application on the restoration of their rights of ownership, where such a date determined the sequence number of the persons in the queue, may not be considered such an objective criterion, since, after the launch of the process of the restoration of the rights of ownership, the number of the persons who had filed the respective applications within a short period of time was relatively large, therefore, their sequence number in the queue may differ considerably despite the fact that the said persons filed their applications at around the same time. Therefore, the impugned legal regulation could have violated Article 29 of the Constitution.

4. Since the impugned legal regulation that, among other things, reduced the maximum size of new plots of land to be transferred to citizens for no consideration for individual construction in the city of Kaunas was adopted in the absence of any proposal of Kaunas City Municipality, the petitioner doubts whether there was any real need to reduce, from 0.2 ha to 0.12 ha, the size of new plots of land to be transferred for no consideration for individual construction in the city of Kaunas and whether the constitutional principle of proportionality was violated upon reducing the said sizes without any objective reason.

II

In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from the representatives of the Government of the Republic of Lithuania, the party concerned, who were Audrius Petkevičius, Director of the Land Policy Department of the Ministry of Agriculture of the Republic of Lithuania, and Gintarė Tumalavičienė, Head of the Land Law Unit of the same department. In their explanations, the said representatives maintain that, to the specified extent, the government resolution of 23 July 1998 (wording of 31 March 2010) is not in conflict with the Constitution and Paragraph 3 of Article 5 of the Law. The position of the representatives of the party concerned is substantiated by the following arguments.

1. In carrying out the Programme of the Fifteenth Government, in order to accelerate the process of the restoration of the rights of ownership, the Special Action Plan for the Restoration of the Rights of Ownership to Land in the Cities of Kaunas and Vilnius was approved by an order of the Minister of Agriculture of the Republic of Lithuania. The said plan provided for drafting the relevant amendment to the government resolution of 23 July 1998. The said amendment was drafted with the intention to introduce the possibility of assigning new plots of land in the cities of Vilnius and Kaunas, as compensation for previously owned land, not only for individual construction, but also for gardens, for kitchen gardens, or for other similar purposes. Letters were sent to Vilnius City Municipality and Kaunas City Municipality, requesting their proposals concerning such plots of land. The requests were sent to those municipalities in order to finish the restoration of land and upon assessing the number of the persons in queue in 2009 to whom the rights of ownership to the real property had to be restored.

At first, in its reply to the aforementioned request, Kaunas City Municipality pointed out that it had no possibility of preparing the detailed plans of new plots of land for gardens, for kitchen gardens, or for other similar purposes, since the general plan of the city of Kaunas did not provide for plots of land for new kitchen gardens within the territory assigned to the city of Kaunas prior to 1995. However, after the relevant draft amendment to the government resolution of 23 July 1998 had been prepared and submitted for coordination, Kaunas City Municipal Administration pointed out that, in the city of Kaunas, the size of new plots of land designated for gardens, kitchen gardens, or other similar purposes would not exceed 0.06 ha.

On the basis of the proposals received from the municipalities, a new draft amendment to the government resolution of 23 July 1998 was prepared, specifying, in the cities of Kaunas and Vilnius, the sizes of new plots of land designated for gardens, kitchen gardens, or other similar purposes, and reducing, at the proposal of Vilnius City Municipality, the maximum size of plots of land to be transferred into the ownership of persons for no consideration for individual construction in the city of Vilnius.

2. Even though, on the basis of the four areas in the city of Kaunas (i.e. the central part of the city, areas with developed infrastructure, those with underdeveloped infrastructure, and other areas), the government resolution of 23 July 1998 (wording of 5 March 1999) established the sizes of new plots of land to be assigned for individual construction, however, the practical application of the said legal regulation remained questionable. Both from the point of view of territorial planning and from the logical aspect it was difficult to define the “other areas”. Therefore, after the government resolution of 23 July 1998 (wording of 5 March 1999) had been set out in its new wording of 31 March 2010, the ambiguous provision (leading to possible diverging interpretations in practice), according to which the size of new plots of land to be transferred into the ownership of citizens for no consideration for individual construction in the city of Kaunas shall range between 0.12 ha and 0.2 ha in areas other than the central part of the city, or in areas other than those with developed infrastructure, or in areas other than those with underdeveloped infrastructure, was abandoned.

The sizes of new plots of land in the city of Kaunas, as approved by the government resolution of 31 March 2010, do not exceed those provided for in Paragraph 3 of Article 5 of the Law: the same resolution stipulated that the sizes of new plots of land to be transferred for individual construction are differentiated from 0.04 ha in the central part of the city of Kaunas to 0.12 ha in the areas of the city of Kaunas with underdeveloped infrastructure (the Law provides that the maximum size of a new plot of land transferred into ownership for no consideration must not exceed 0.2 hectares in the city of Kaunas). Thus, the doubts about the compliance of the said government resolution with Paragraph 3 of Article 5 of the Law are unfounded.

3. The provision that used to be consolidated in the government resolution of 23 July 1998 (wording of 5 March 1999) was related to 0.2 ha as the maximum size of new plots of land to be assigned for individual construction in the city of Kaunas. The said provision was ambiguous and, in practice, could lead to possible diverging interpretations. In addition, the same provision gave rise to undefined legitimate expectations and failed to meet the requirements, arising from the constitutional principle of a state under the rule of law, for legal certainty and legal clarity.

4. In the city of Kaunas, 1,728 citizens were waiting for new plots of land, whereas Kaunas City Municipality intended to prepare, in 2009–2012, the detailed plans for only 1,200 plots of land for individual construction.

Under the legal regulation valid at present, upon providing that new plots of land of up to 0.12 ha in size may be assigned for individual construction in the city of Kaunas, it is possible to form more plots of land and to grant a larger number of applications of citizens. In order to finish the process of the restoration of the rights of ownership as soon as possible, the state has an interest in creating the opportunity for the largest number of citizens to make use of their right to receive a new plot of land for individual construction as compensation for previously owned land.

5. In the other major cities, the maximum sizes of new plots of land to be transferred for individual construction do not exceed 0.2 ha, either; for example, in Vilnius (Grigiškės), the maximum sizes of new plots of land do not exceed 0.15 ha, while in Klaipėda—0.09 ha. Thus, the formerly valid provision, according to which the size of a new plot of land in the “other areas” of the city of Kaunas to be transferred into ownership for no consideration for individual construction may not exceed 0.2 ha, can be assessed as creating the unequal legal situation of persons in different cities.

III

In the course of preparing the case for the judicial consideration, the Constitutional Court received a written opinion of Roma Žakaitienė, Director of the Association of Local Authorities in Lithuania, and certain information submitted by Dainius Ratkelis, Director of Kaunas City Municipal Administration.

The Constitutional Court

holds that:

I

1. The Supreme Administrative Court of Lithuania, the petitioner, requests an investigation into whether the government resolution of 23 July 1998 (wording of 31 March 2010), insofar as it approves 0.12 ha as the maximum size for new plots of land to be transferred for individual construction in the city of Kaunas, is in conflict with Articles 23 and 29 of the Constitution, with the constitutional principle of a state under the rule of law, and with Paragraph 3 of Article 5 of the Law.

2. On 23 July 1998, the Government adopted the Resolution (No. 920) “On the Approval of the Sizes of New Plots of Land in Cities by which it, inter alia, approved the Sizes of New Plots of Land, Where such Sizes Are Established by Town (District) Municipalities, to Be Transferred to Citizens for Individual Construction or Other Purposes in Towns as Compensation for Previously Owned Land, Residential Houses, Parts thereof, or Flats.

The preamble to the same government resolution states that it was adopted pursuant to Article 5 of the Law that governs the conditions and procedure for the restoration of the rights of ownership to urban land.

The government resolution of 23 July 1998, inter alia, prescribed:

THE SIZES OF NEW PLOTS OF LAND, WHERE SUCH SIZES ARE ESTABLISHED BY TOWN (DISTRICT) MUNICIPALITIES, TO BE TRANSFERRED TO CITIZENS FOR INDIVIDUAL CONSTRUCTION OR FOR OTHER PURPOSES IN TOWNS AS COMPENSATION FOR PREVIOUSLY OWNED LAND, RESIDENTIAL HOUSES, PARTS THEREOF, OR FLATS

 

Place Name

Sizes of new plots of land in towns, in hectares

designated for individual construction

designated for gardens, kitchen gardens, or other similar purposes

Towns

 

 

              […]

Kaunas

from 0.04 but not exceeding 0.06

not envisaged

              […]”

Thus, according to the government resolution of 23 July 1998, the size of new plots of land to be transferred to citizens, as compensation for previously owned land, residential houses, parts thereof, or flats, for individual construction in the city of Kaunas could range between 0.04 ha and 0.06 ha. The same resolution did not specify anything about the areas where the said new plots of land must be located.

3. On 5 March 1999, the Government adopted the Resolution (No. 250) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 920) ‘On the Approval of the Sizes of New Plots of Land in Cities’ of 23 July 1998” by which it reworded the Sizes of New Plots of Land, Where Such Sizes Are Established by Town (District) Municipalities, to Be Transferred to Citizens for Individual Construction or for Other Purposes in Towns as Compensation for Previously Owned Land, Residential Houses, Parts thereof, or Flats.

This resolution, inter alia, prescribed:

THE SIZES OF NEW PLOTS OF LAND, WHERE SUCH SIZES ARE ESTABLISHED BY TOWN (DISTRICT) MUNICIPALITIES, TO BE TRANSFERRED TO CITIZENS FOR INDIVIDUAL CONSTRUCTION OR FOR OTHER PURPOSES IN TOWNS AS COMPENSATION FOR PREVIOUSLY OWNED LAND, RESIDENTIAL HOUSES, PARTS THEREOF, OR FLATS

 

 

Sizes of new plots of land in towns, in hectares

Place Name

designated for individual construction

designated for gardens, kitchen gardens, or other similar purposes

Towns

 

 

         […]

Kaunas:   not envisaged
in the central part of the city 0.04  

in areas with developed infrastructure

from 0.04 but not exceeding 0.06

 

in areas with underdeveloped infrastructure

from 0.06 but not exceeding 0.12

 

in other areas

from 0.12 but not exceeding 0.2

 

         […]”

The legal regulation laid down in the government resolution of 23 July 1998 (wording of 5 March 1999), compared with the previously established legal regulation, was amended to the effect that it provided for different sizes of new plots of land to be transferred to citizens for no consideration for individual construction in the city of Kaunas where such sizes depended on the area where the said plots of land were located: in the central part of the city—0.04 ha; in areas with developed infrastructure—not exceeding 0.06 ha; in areas with underdeveloped infrastructure—not exceeding 0.12 ha; and in other territories—not exceeding 0.2 ha.

Thus, under the legal regulation laid down in the government resolution of 23 July 1998 (wording of 5 March 1999), the maximum size of new plots of land to be transferred into the ownership of citizens for no consideration for individual construction in the city of Kaunas could be 0.2 ha in cases where such plots of land were assigned in areas other than the central part of the city, or in areas other than those with developed infrastructure, or in areas other than those with underdeveloped infrastructure.

4. On 31 March 2010, the Government adopted the Resolution (No. 345) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 920) ‘On the Approval of the Sizes of New Plots of Land in Cities’ of 23 July 1998” by which the government resolution of 23 July 1998 (wording of 5 March 1999) was set out in its new wording.

The government resolution of 23 July 1998 (wording of 31 March 2010), which is impugned by the petitioner to the specified extent, inter alia, prescribes:

THE SIZES OF NEW PLOTS OF LAND, WHERE SUCH SIZES ARE ESTABLISHED BY MUNICIPALITIES, TO BE TRANSFERRED TO CITIZENS FOR INDIVIDUAL CONSTRUCTION OR FOR OTHER PURPOSES IN TOWNS AS COMPENSATION FOR PREVIOUSLY OWNED LAND, RESIDENTIAL HOUSES, PARTS THEREOF, OR FLATS

 

Towns

Sizes of new plots of land in towns, in hectares

designated for individual construction

designated for gardens or kitchen gardens

         […]

Kaunas:

   
in the central part of the city; 0.04 not envisaged
in areas with developed infrastructure; from 0.04 but not exceeding 0.06 from 0.04 but not exceeding 0.06
in areas with underdeveloped infrastructure from 0.06 but not exceeding 0.12 from 0.04 but not exceeding 0.06

         […]”

The legal regulation established in the government resolution of 23 July 1998 (wording of 31 March 2010), compared with the legal regulation laid down in the government resolution of 23 July 1998 (wording of 5 March 1999), was amended to the effect that it provided for the possibility of transferring, in three different areas of the city of Kaunas, new plots of land to citizens for no consideration for individual construction in the city of Kaunas as compensation for previously owned land, residential houses, parts thereof, or flats: it no longer contained the provision that a new plot of land may be assigned for individual construction in areas other than the central part of the city, in areas other than those with developed infrastructure, or in areas other than those with underdeveloped infrastructure. The other prescribed sizes of new plots of land for individual construction in the city of Kaunas remained unchanged—the sizes of new plots of land to be transferred to citizens for no consideration could be 0.04 ha in the central part of the city, but could not exceed 0.06 ha in areas with developed infrastructure, and could not exceed 0.12 ha in areas with underdeveloped infrastructure.

Thus, under the government resolution of 23 July 1998 (wording of 31 March 2010), 0.12 ha may be the maximum size of a new plot of land to be transferred into the ownership of citizens for no consideration for individual construction in the city of Kaunas (the plot of land with this size may be assigned in areas with underdeveloped infrastructure), which means that, according to the impugned legal regulation, the said maximum size diminished from 0.2 ha to 0.12 ha.

The government resolution of 23 July 1998 (wording of 31 March 2010) also provides that new plots of land may be transferred to citizens, as compensation for the previously owned real property specified in the law, not only for individual construction, but also for gardens or kitchen gardens. In the city of Kaunas, the size of such plots of land may range between 0.04 and 0.06 ha in areas with developed or underdeveloped infrastructure.

5. It has been mentioned that the government resolution of 23 July 1998 was adopted pursuant to Article 5 of the Law.

5.1. On 1 July 1997, the Seimas adopted the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which came into force (with a certain exception) on 9 July 1997.

The provisions of Article 5 “The Conditions and Procedure for the Restoration of the Rights of Ownership to Urban Land” of the Law have been amended and/or supplemented on more than one occasion, however, the legal regulation that is consolidated in the same article and is relevant for the constitutional justice case at issue has in principle remained unchanged.

5.2. Paragraph 2 (wordings of 16 November 2006 and 27 June 2013) of Article 5 of the Law provides for the manner of the restoration of the rights of ownership to land. The citizens entitled to have their rights of ownership restored may be restored such rights, among other things, by transferring for no consideration into their ownership a new plot of land, either equipped or not equipped, in the manner prescribed by the Government, after the Government approves its size in the same town in which the previously owned land was located, or, at the request of the citizens, in the town where they reside (Item 3).

5.3. The petitioner impugns the compliance of the government resolution of 31 March 2010 with the provisions of Paragraph 3 of Article 5 of the Law. The said paragraph prescribes:

The size of a new plot of land, to be transferred for no consideration into the ownership of citizens, which is located on the territory categorised as urban land shall, at the proposal of the town or district municipality, be approved by the Government. The minimum size of a new plot of land to be transferred into ownership for no consideration shall be 0.04 ha (with the exception of a smaller plot of land owned previously). The maximum area of a plot of land to be transferred into ownership for no consideration must not exceed 0.2 ha in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, and Birštonas, and 0.3 ha—in other towns.”

Thus, by Paragraph 3 of Article 5 of the Law, the legislature commissioned the Government to approve the sizes of new plots of land to be transferred into ownership for no consideration in each town as well as established the minimum and maximum sizes of such plots of land and the procedure for approving the said sizes: the Government must approve the sizes of new plots of land in each town at the proposal of the respective municipality.

5.4. In this context, it should be mentioned that territorial planning, as well as the implementation of the solutions of either the general plan of a municipality or the general plans and detailed plans of certain parts of a municipality, is among the discretionary municipal functions (Item 19 of Article 6 of the Republic of Lithuania’s Law on Local Self-Government (wording of 15 September 2008 with subsequent amendments)). Municipal institutions implement the state policy in the sphere of territorial planning while preparing the documents of territorial planning at the municipal and local level, inter alia, organise, at their expense, the preparation of territorial planning documents (among other things, the relevant territorial general and detailed plans) at the municipal and local level (Item 41 of Article 2 and Paragraph 6 of Article 5 of the Republic of Lithuania’s Law on Territorial Planning (wording of 5 January 2004 with subsequent amendments); Item 27 of Article 2, Paragraphs 2 and 5 of Article 6, and Item 1 of Paragraph 5 of Article 7 of the same law (wording of 27 June 2013)).

To sum up the aforesaid provisions consolidated in the Law on Local Self-Government and the Law on Territorial Planning, it should be noted that it is municipalities that are responsible for planning their territory, inter alia, for the preparation of general and detailed plans, and for the implementation of the solutions of such plans.

5.5. When interpreting Paragraph 3 of Article 5 of the Law in the context of the aforesaid provisions of the Law on Local Self-Government and the Law on Territorial Planning, it should be noted, from the aspect relevant to the constitutional justice case at issue, that the said paragraph establishes not only the competence of the Government to approve the sizes of new plots of land to be transferred into the ownership of citizens for no consideration in each town, but also the powers of the municipality of the respective town (district) within their competence to submit to the Government their proposals on the sizes of such plots of land.

Under Paragraph 3 of Article 5 of this law, the Government, when approving the sizes of new plots of land to be transferred into the ownership of citizens for no consideration in each town, must follow the procedure established by the legislature—to approve such sizes only upon receiving a proposal regarding the establishment of those sizes from the respective municipality that is responsible for planning its territory. This means that the Government does not enjoy the exclusive competence in this sphere. Two institutions—the Government and the municipality of the relevant town (district)—participate in establishing the sizes of new plots of land to be transferred into the ownership of citizens for no consideration in each town. The right of a municipality to submit to the Government proposals on the sizes of new plots of land to be transferred to the ownership of citizens for no consideration also means that, in the absence of any such proposal, the Government is not allowed to approve the said sizes. While being responsible for planning their territories, only the municipalities can assess their possibilities of forming new plots of land, inter alia, those to be transferred to citizens as compensation for the previously owned real property specified in the law, and only the municipalities can be aware of the real need for such plots of land.

Consequently, the provision of Paragraph 3 of Article 5 of the Law, which lays down the procedure to be followed in the course of approving the sizes of new plots of land to be transferred into the ownership of citizens for no consideration, seeks to ensure that the Government would not approve such sizes in towns by failing to take into consideration the actual situation of a concrete municipality responsible for planning its territory, and that the legal regulation approving the sizes of such plots of land, in the light of the state policy in the sphere of territorial planning, would create the preconditions for municipalities to form a certain number of plots of land required for the restoration of the rights of ownership. Thus, how the said procedure, established in Paragraph 3 of Article 5 of the Law, is followed exerts a direct influence on the content of the government legal act by which the said sizes are approved.

It should be noted that the Government must follow this procedure whenever it reapproves (amends) the sizes of plots of land to be transferred into the ownership of citizens for no consideration.

5.6. Paragraphs 4 and 5 of Article 5 of the Law stipulate the cases in which additional plots of land may be transferred to citizens for no consideration: a citizen is entitled to receive such a new plot of land with no less than 0.04 ha in size provided that the plot of land previously owned by him/her was bigger, by no less than 0.04 ha, than the plot of land used by the same citizen at present; the general area of the plot of land, used by a citizen, transferred into his/her ownership for no consideration, and the new plot of land, additionally transferred into his/her ownership for no consideration, must not exceed the maximum area (approved by the Government) of a new plot of land to be transferred into ownership for no consideration in the relevant town for individual construction or other purposes.

Where the area of a plot of land to be transferred into the ownership of a citizen for no consideration in the territory categorised as urban land is smaller than the area of a plot of land to which his/her rights of ownership are to be restored, the state compensates such a citizen for the remaining area of the plot of land in the manner provided for in the law.

II

On the compliance of the provisions of the government resolution of 23 July 1998 (wording of 31 March 2010) with Articles 23 and 29 of the Constitution, with the constitutional principle of a state under the rule of law, and with Paragraph 3 of Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property

1. The Supreme Administrative Court of Lithuania, the petitioner, requests an investigation into whether the government resolution of 23 July 1998 (wording of 31 March 2010), insofar as it approves 0.12 ha as the maximum size for new plots of land to be transferred for individual construction in the city of Kaunas, is in conflict with Articles 23 and 29 of the Constitution, with the constitutional principle of a state under the rule of law, and with Paragraph 3 of Article 5 of the Law.

2. The doubts of the petitioner regarding the compliance of the government resolution of 23 July 1998 (wording of 31 March 2010) to the specified extent with the Constitution are, in principle, substantiated by the fact that, after the legal regulation impugned in the case at issue was introduced, the legitimate expectations held by persons and related to the restoration of the rights of ownership by transferring a new plot of land of up to 0.2 ha in size for no consideration for individual construction in the city of Kaunas were denied; after the possibility of transferring a smaller plot of land was provided for, there was a violation of the right of ownership of such persons, which is defended under Article 23 of the Constitution; the said persons were put at a disadvantage in comparison to the persons whose right to the restoration of the rights of ownership had been implemented prior to the amendment made by the government resolution of 31 March 2010, thus, the said legal regulation also violated the constitutional principle of the equality of the rights of persons. The impugned legal regulation also violated the procedure, laid down in Paragraph 3 of Article 5 of the Law, for approving the sizes of new plots of land to be transferred into the ownership of citizens for no consideration and the constitutional principle of a state under the rule of law.

3. In the acts of the Constitutional Court, a broad official constitutional doctrine of restitution—the restoration of the ownership rights of citizens to the existing real property—has been formulated.

3.1. The Constitutional Court has held on more than one occasion that, when regulating the restoration of the denied rights of ownership, the legislature enjoys the discretion to establish the conditions and procedure for the restoration of the rights of ownership (inter alia, the Constitutional Court’s rulings of 4 March 2003, 11 September 2013, 9 October 2013, and 10 October 2013). This discretion is objectively determined by the fact that, during the period following the unlawful expropriation of property, the system of the relations of ownership has changed in substance (the Constitutional Court’s rulings of 2 April 2001, 4 March 2003, and 11 September 2013); in the course of establishing, by law, the conditions and procedure for the restoration of the rights of ownership, it is necessary to take account of the changed social, economic, and other conditions (the Constitutional Court’s ruling of 6 September 2007).

When establishing, by law, the manner, conditions, and procedure for the restoration of the rights of ownership to the existing real property, the legislature is bound by the norms and principles of the Constitution, inter alia, by Article 23 of the Constitution which consolidates the protection of the rights of ownership, also by Article 29 thereof which guarantees the equality of rights of persons, as well as by the constitutional principle of a state under the rule of law which encompasses legal clarity, legal certainty, legal security, the protection of legitimate expectations, and other requirements (the Constitutional Court’s rulings of 23 August 2005, 22 December 2010, 30 May 2013, and 30 October 2014).

3.2. The Constitutional Court has held that the right of ownership, in the sense of Article 23 of the Constitution, is not identical to the right of citizens of the Republic of Lithuania to have the rights of ownership to the existing real property restored according to the procedure established by law (the Constitutional Court’s rulings of 22 December 2010, 11 September 2013, and 9 October 2013). Until the appropriate state institutions have not adopted a decision on the restoration of the rights of ownership, in reality, the persons to whom the rights of ownership are to be restored do not enjoy the subjective rights to the formerly held property (the Constitutional Court’s rulings of 18 June 1998, 4 March 2003, 20 May 2008, 22 December 2010, and 19 June 2012). Only after an authorised state institution adopts a decision to restore the rights of ownership to a person, this person acquires the rights of ownership, which are protected and defended under Article 23 of the Constitution (inter alia, the Constitutional Court’s rulings of 4 March 2003, 23 August 2005, 10 October 2013, 8 October 2014, and 30 October 2014).

The Constitutional Court has also held that the legal regulation providing for certain alternatives to the restoration of the rights of ownership in kind is not in conflict with the objectives of restitution and the constitutional principle of the protection of the rights of ownership (the Constitutional Court’s rulings of 20 May 2008, 9 March 2010, 11 October 2012, and 30 October 2014). In this case, the fact of crucial importance is not what manner of compensation is established, but whether this manner can secure actual and fair compensation (the Constitutional Court’s rulings of 2 April 2001, 11 September 2013, and 30 October 2014). The provision of the restitution laws, according to which compensation must be granted where the restitution of property in kind is impossible, is not in conflict with the principles of the inviolability of property and the protection of the rights of ownership, since fair compensation ensures the restoration of the rights of ownership (inter alia, the Constitutional Court’s rulings of 5 July 2007 and 6 September 2007, as well as its decision of 4 July 2008).

3.3. The constitutional principle of the equality of the rights of persons, which is consolidated in Article 29 of the Constitution, means, inter alia, that the legislature, when it regulates the legal relations of the restoration of the rights of ownership by law, is not allowed to establish any such legal regulation that would treat in a different manner the persons entitled to have their rights of ownership restored if there are not any such differences between these persons that would objectively justify their unequal treatment (the Constitutional Court’s ruling of 20 November 1996).

The Constitution does not prohibit the situation where the relations of the restoration of the rights of ownership to the existing real property are regulated by law in a differentiated manner, to the extent that the conditions and procedure for the restoration of the rights of ownership may vary, inter alia, depending on the kind of the property (land, forest, etc.), to which the rights of ownership are to be restored, or depending on the territory where the property, to which the rights of ownership are to be restored, is located; however, heed must be paid to the constitutional principle of a state under the rule of law, which includes, inter alia, legal certainty, legal security, and the protection of legitimate expectations (the Constitutional Court’s ruling of 5 July 2007, 6 September 2007, and 30 October 2014).

As such, the constitutional principle of the equality of the rights of persons does not deny the possibility of establishing, by law, a legal regulation that is differentiated with respect to certain categories of persons who are in different situations. The compliance of a concrete legal norm with Article 29 of the Constitution may be assessed only by taking into account all significant circumstances (inter alia, the Constitutional Court’s rulings of 4 July 2003, 24 December 2008, 2 March 2009, and 22 December 2011). In order to assess whether a differentiated legal regulation has been established reasonably, the differences in the legal situation of the categories of such persons must be appraised and the fact whether the legal norms laying down special conditions correspond to the mission and purpose of the legal act must be evaluated (the Constitutional Court’s rulings of 13 November 1997 and 4 March 2003).

The Constitutional Court has also noted that, as such, the amendments to the legal regulation made by the legislature by heeding the Constitution where such amendments make changes in the conditions and procedure for the restoration of the rights of ownership may not be regarded as the unequal treatment of the subjects of the restoration of the rights of ownership (the Constitutional Court’s ruling of 30 May 2013).

3.4. Legal certainty, legal security, and the protection of legitimate expectations, which are inseparable elements of a state under the rule of law, imply the obligation of the state to secure the certainty and stability of the legal regulation, to protect the rights of persons, to respect the legitimate interests and legitimate expectations, and to fulfil any undertaken obligations for persons; if legal certainty, legal security, and the protection of legitimate expectations were not ensured, the trust of a person in the state and law would not be secured (inter alia, the Constitutional Court’s rulings of 4 March 2003, 15 February 2013, 10 October 2013, and 8 May 2014).

The fact that the state has decided that the denied rights of ownership must be restored, also the fact that the law regulating the relations of restitution has been adopted and the restoration of the rights of ownership has started to be implemented, means that the state has created the legitimate expectation for persons entitled to have their rights of ownership restored that they will be able to implement this right in the manner, under the conditions and procedure, and within the time limits provided for by law; the said legitimate expectation is protected and defended by the Constitution; at the same time, the state acquires the duty to regulate, by law, the restoration of the rights of ownership to the existing real property in such a manner that the aforementioned legitimate expectation would be implemented in reality (the Constitutional Court’s rulings of 23 August 2005 and 20 May 2008, its decision of 4 July 2008, and its ruling of 19 June 2012).

However, the legitimate expectation of persons to have their rights of ownership to the existing real property restored does not mean that such rights must be restored by returning the property in kind in all situations (the Constitutional Court’s rulings of 20 May 2008, 2 September 2011, 11 October 2012, and 30 October 2014).

3.5. Although the constitutional principle of a state under the rule of law implies the requirements of legal certainty, legal security, the protection of legitimate expectations, and other requirements, inter alia, those raised to the legal regulation of the restitution relations, it is not allowed to interpret the said principle as meaning that, purportedly, it does not in general permit the legislature, after it launches the restoration of the rights of ownership under certain conditions, to change these conditions later, inter alia, to establish new, additional conditions where such changes are aimed at protecting certain constitutional values which would be harmed or conditions for such harm would be created if the conditions of the restoration of the rights of ownership to the existing real property established earlier were not changed (the Constitutional Court’s rulings of 5 July 2007, 6 September 2007, and 30 May 2013); quite to the contrary, should it become clear that the restoration of the rights of ownership to the existing real property under established conditions and procedure inflicts harm on certain values protected and defended by the Constitution or conditions for such harm might be created, the legislature not only may, but also must correspondingly amend the previously established conditions and procedure for the restoration of the rights of ownership to the existing real property. However, in such cases heed must also be paid to the constitutional principle of proportionality under which the applicable measures established by means of legal acts must be proportionate to the objective sought, whereas the rights of persons cannot be limited more than necessary to achieve the legitimate and generally important as well as constitutionally reasonable objective (the Constitutional Court’s ruling of 5 July 2007).

3.6. The constitutional imperatives of a harmonious, just, and open civil society, as well as the constitutional requirements of legal certainty, legal security and the protection of legitimate expectations imply that the launched process of restitution may not be extended for an unreasonably long time; 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 (the Constitutional Court’s rulings of 5 July 2007, 22 December 2010, and 19 June 2012).

4. The constitutional principle of a state under the rule of law implies that the legislature and other law-making subjects are subject to various requirements, inter alia, it implies that law-making subjects are allowed to pass legal acts only without exceeding their powers, and that substatutory legal acts must be adopted on the basis of laws (inter alia, the Constitutional Court’s rulings of 31 May 2006, 13 August 2007, 8 October 2009, and 2 April 2013).

The Constitutional Court has also held on more than one occasion that the duty of the Government to adopt substatutory acts that are necessary for the implementation of laws stems from the Constitution and, in cases where there is the commissioning by the legislature to do so, it also stems from laws (inter alia, the Constitutional Court’s rulings of 30 October 2001, 9 June 2011, 9 October 2014, and 24 February 2015). It is important that the Government adopts substatutory legal acts without exceeding its powers and that these legal acts are not in conflict with the Constitution and laws (inter alia, the Constitutional Court’s rulings of 18 December 2001, 24 October 2012, and 24 February 2015). Under the Constitution, the Government, while passing legal acts, must observe the valid laws; should the Government fail to observe laws, the constitutional principle of a state under the rule of law implying the hierarchy of legal acts, and Item 24 of Article 94 of the Constitution, under which the Government executes, inter alia, laws, would be negated (inter alia, the Constitutional Court’s rulings of 2 April 2013, 9 October 2014, and 24 February 2015).

5. When considering cases related to the issues of restoring the rights of ownership, the Constitutional Court has on more than one occasion drawn attention to the case-law of the European Court of Human Rights on the matter (inter alia, the Constitutional Court’s rulings of 8 October 2014 and 30 October 2014).

Article 1 of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms, which consolidates the right to the protection of property, does not guarantee, as such, the right to the restitution of property; nor can it be interpreted as creating any general obligation for the Contracting States to restore property which had been expropriated before they ratified the Convention, or as imposing any restrictions on their freedom to determine the scope and conditions of any property restitution to former owners (among many judgments of the European Court of Human Rights, also its 21 July 2009 judgment in the case of Aleksa v. Lithuania, application No. 27576/05). If the Contracting States use their wide discretion not to grant some categories of former owners the right to restore the rights of ownership, the claims of these persons to restore property may not be substantiated by “legitimate expectations”, the protection of which is provided for in Article 1 of the First Protocol (among other acts of this Court, the 10 July 2002 decision of the Grand Chamber as to the admissibility in the case of Gratzinger and Gratzingerova v. the Czech Republic, application No. 39794/98, and the 30 June 2009 decision as to the admissibility in the case of Shub v. Lithuania, application No. 17064/06).

6. As mentioned before, according to the impugned government resolution of 23 July 1998 (wording of 31 March 2010), 0.12 ha is the maximum size of new plots of land to be transferred to citizens for no consideration for individual construction in the city of Kaunas; the said resolution no longer provides for the possibility of transferring new larger plots of land (not exceeding 0.2 ha) to citizens for individual construction in the city of Kaunas as compensation for the previously owned real property specified in the law.

7. In the context of the constitutional justice case at issue, it should be noted that it is clear from the preparations for drafting the aforementioned amendment to the government resolution of 23 July 1998 (wording of 5 March 1999) that the government resolution of 31 March 2010 was drafted, inter alia, in view of the fact that “in the city of Kaunas, 1,728 citizens are waiting for new plots of land, whereas Kaunas City Municipality intends to prepare, in 2009–2012, the detailed plans for only 1,200 plots of land for individual construction”; the said draft was aimed, inter alia, to accelerate the process of the restoration of the rights of ownership by offering better opportunities to citizens to choose new plots of land and to decrease the dissatisfaction of citizens entitled to receive, as ownership and for no consideration, a new plot of land for individual construction (note of 23 February 2010 on the assessment of the expected impact created by this legal regulation).

It should also be noted that, in its letter addressed to the National Land Service under the Ministry of Agriculture, Kaunas City Municipality points out that it is necessary “to find options for restoring as many new plots of land to land owners as possible”, “to plan the greatest possible number of land plots by creating the possibility of restoring land to a larger number of claimants and thus to finish the land reform as rapidly as possible” (letter “On the Information about New Plots of Land to Be Transferred as Compensation for Previously Owned Land” of 11 November 2009).

In addition, according to Kaunas City Municipality, the administration of the said municipality has never formed new plots of land with more than 0.12 ha for the purpose of restoring the rights of ownership, since, “having assessed both the general need for plots of land in order to restore the rights of ownership and the territory of the city of Kaunas, any possibility of planning plots of land with more than 0.12 ha for the purpose of restoring land to claimants was ruled out, since, within the territory of the city of Kaunas, there were not enough areas making it possible to plan the required number of new plots of land with more than 0.12 ha to be transferred to citizens, as compensation for previously owned land, for individual construction or for other purposes” (letter of Kaunas City Municipal Administration No. (33.199)2-1551 of 27 March 2015).

8. When deciding whether the government resolution of 23 July 1998 (wording of 31 March 2010), insofar as it approves 0.12 ha as the maximum size for new plots of land to be transferred for individual construction in the city of Kaunas, is in conflict with Article 23 of the Constitution, it should be noted that, as mentioned before, the respective persons do not enjoy the subjective rights to the formerly held property until the appropriate state institutions have not adopted a decision on the restoration of the rights of ownership; only after an authorised state institution adopts a decision to restore the rights of ownership of such a person, he/she acquires the rights of ownership, which are protected and defended under Article 23 of the Constitution.

8.1. Consequently, having established by its resolution of 23 July 1998 (wording of 31 March 2010) 0.12 ha (instead of the former 0.2 ha) as the maximum size of new plots of land to be transferred into the ownership of citizens for individual construction in the city of Kaunas, the Government has not violated the right of ownership of the persons seeking the restoration of their rights of ownership in precisely this manner to the real property previously owned by them (i.e. by transferring for no consideration into their ownership a new plot of land, either equipped or not equipped, in the manner prescribed by the Government (Item 3 of Paragraph 2 (wordings of 16 November 2006 and 27 June 2013) of Article 5 of the Law)), since the said persons do not enjoy the right of ownership to a plot of land with a certain (concrete) size until the adoption of a decision by the appropriate state institutions on the restoration of the rights of ownership in the manner that such citizens have opted for.

8.2. Thus, it should be held that the government resolution of 23 July 1998 (wording of 31 March 2010), insofar as it establishes 0.12 ha as the maximum size for new plots of land to be transferred for individual construction in the city of Kaunas, is not in conflict with Article 23 of the Constitution.

9. When deciding whether the impugned legal regulation is in conflict with the constitutional principle of a state under the rule of law, it should be noted that, as mentioned before:

while regulating the restoration of the denied rights of ownership, the legislature enjoys the discretion to establish the conditions and procedure for the restoration of the rights of ownership;

the fact that the state has decided that the denied rights of ownership must be restored, also the fact that the law regulating the relations of restitution has been adopted and the restoration of the rights of ownership has started to be implemented, means that the state has created the legitimate expectation for persons entitled to have their rights of ownership restored that they will be able to implement this right in the manner, under the conditions and procedure, and within the time limits provided for by law; at the same time, the state acquires the duty to regulate, by law, the restoration of the rights of ownership to the existing real property in such a manner that the aforementioned legitimate expectation would be implemented in reality;

it is not allowed to interpret the constitutional principle of a state under the rule of law (this principle implies the requirements of legal certainty, legal security, and the protection of legitimate expectations, as well as other requirements for, inter alia, the legal regulation governing the restitution relations) as meaning that, purportedly, it does not in general permit the legislature, after it launches the restoration of the rights of ownership under certain conditions, to change these conditions later where such changes are aimed at protecting certain constitutional values; in such cases, the constitutional principle of proportionality must be observed;

the constitutional imperatives of a harmonious, just, and open civil society, as well as the constitutional requirements of legal certainty, legal security and the protection of legitimate expectations imply that the launched process of restitution may not be extended for an unreasonably long time; 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 and the trust of the people in the state and law can be undermined;

under the Constitution, the legal regulation providing for certain alternatives to the restoration of the rights of ownership in kind is not in conflict with the objectives of restitution and the constitutional principle of the protection of the rights of ownership; at the same time, the granted compensation is not in conflict with the principles of the inviolability of property and the protection of the rights of ownership, since fair compensation also ensures the restoration of the rights of ownership.

9.1. It should be noted that, after the legislature stipulated in Paragraph 2 (wordings of 16 November 2006 and 27 June 2013), inter alia, in Item 3 thereof, of Article 5 of the Law that the rights of ownership may be restored, among other things, by transferring for no consideration into the ownership of citizens a new plot of land, either equipped or not equipped, in the manner prescribed by the Government, and after the Government approved the sizes of such plots of land in the city of Kaunas by its resolution of 23 July 1998 (wordings of 5 March 1999 and 31 March 2010), no legitimate expectation was created for persons to receive a plot of land with a certain concrete size.

9.2. After the government resolution of 23 July 1998 (wording of 31 March 2010) prescribed that a new plot of land of up to 0.12 ha in size may be transferred for individual construction in the city of Kaunas as compensation for the formerly held real property defined in the law, the preconditions were created for Kaunas City Municipality to form a larger number of plots of land to be transferred to citizens seeking the restoration of their rights of ownership and thus to accelerate and finish the process of the restoration of the rights of ownership. The need for such plots of land is confirmed by the preparatory documents for drafting the said resolution and by the letters of Kaunas City Municipality addressed to competent government institutions. Thus, by introducing the impugned legal regulation, the Government was seeking to achieve a constitutionally reasonable objective, i.e. to accelerate the process of the restoration of the rights of ownership and to create the preconditions for granting as many as possible applications of former owners requesting the restoration of the rights of ownership by transferring them new plots of land for no consideration for individual construction in the city of Kaunas, therefore, it is impossible to assess the impugned legal regulation to be disproportionate to the objective sought.

9.3. It should also be noted that the sizes of new plots of land for individual construction in the city of Kaunas, as approved by the government resolution of 23 July 1998 (wording of 31 March 2010), are in line with the minimum and maximum allowable sizes prescribed in Paragraph 3 of Article 5 of the Law, thus, the legal regulation laid down in the aforesaid resolution does not compete with that laid down in the Law.

9.4. In this context, it should also be noted that the persons who, after the establishment of the impugned legal regulation, may no longer be assigned a new additional plot of land for individual construction in the city of Kaunas (since, after the impugned government resolution established new maximum sizes of plots of land for individual construction in the city of Kaunas, the additional plot of land became smaller than 0.04 ha), or in cases where the general area of a plot of land, used by a citizen, transferred into his/her ownership for no consideration, and a new plot of land, additionally transferred into his/her ownership for no consideration, exceed the maximum area (approved by the Government) of a new plot of land to be transferred into ownership for no consideration for individual construction in the city of Kaunas (Paragraphs 3 and 4 of Article 5 of the Law), may choose the alternative manner of the restoration of the rights of ownership. As stated in the jurisprudence of the Constitutional Court, the said alternative manner is not in conflict with the purposes of restitution and the constitutional principle of the protection of the rights of ownership.

9.5. Consequently, the stipulation laid down in the government resolution of 23 July 1998 (wording of 31 March 2010) that citizens may be granted a new plot of land of up to 0.12 ha in size for individual construction in the city of Kaunas as compensation for the previously owned real property specified in the law did not deny the legitimate expectation held by persons to have their rights of ownership restored in the manner and under the conditions specified in the Law. It is impossible to assess the legal regulation consolidated in the government resolution of 23 July 1998 (wording of 31 March 2010), insofar as this legal regulation establishes a smaller maximum size of new plots of land for individual construction in the city of Kaunas, as disproportionate to the objective sought or as excessively limiting the rights of persons.

9.6. Thus, it should be held that the government resolution of 23 July 1998 (wording of 31 March 2010), insofar as it establishes 0.12 ha as the maximum size for new plots of land to be transferred for individual construction in the city of Kaunas, is not in conflict with the constitutional principles of the protection of legitimate expectations and proportionality.

10. When deciding whether the government resolution of 23 July 1998 (wording of 31 March 2010), insofar as it approves 0.12 ha as the maximum size for new plots of land to be transferred for individual construction in the city of Kaunas, is in conflict with Article 29 of the Constitution, it should be noted that, as mentioned before, the constitutional principle of the equality of the rights of persons, which is consolidated in Article 29 of the Constitution, means, inter alia, that the legislature, when it regulates the legal relations of the restoration of the rights of ownership by law, is not allowed to establish any such legal regulation that would treat in a different manner the persons entitled to have their rights of ownership restored if there are not any such differences between these persons that would objectively justify their unequal treatment.

10.1. It should be noted that the sizes of new plots of land to be transferred into the ownership of citizens for no consideration for individual construction in certain areas of the city of Kaunas, as approved by the government resolution of 23 July 1998 (wording of 31 March 2010), have not been changed by the impugned legal regulation and are equally applied with respect to all the citizens seeking the restoration of their rights of ownership in this manner. The established size of new plots of land is different depending on the territory where a particular plot of land is located, but not on the persons who may claim land plots of the said size; the sizes of new plots of land to be transferred for no consideration into the ownership of persons seeking the restoration of their rights of ownership for individual construction in the specified concrete areas in the city of Kaunas were (are) the same both before and after the entry into force of the impugned legal regulation.

10.2. As mentioned before, as such, the amendments to the legal regulation made by the legislature by heeding the Constitution where such amendments make changes in the conditions and procedure for the restoration of the rights of ownership may not be regarded as the unequal treatment of the subjects of the restoration of the rights of ownership.

It has also been mentioned that, when adopting its resolution of 23 July 1998 (wording of 31 March 2010), the Government was seeking to achieve a constitutionally reasonable objective, i.e. to accelerate the process of the restoration of the rights of ownership so that it would not be extended for an unreasonably long time and to create the preconditions for granting as many as possible applications of former owners requesting the restoration of the rights of ownership by transferring them new plots of land for no consideration for individual construction in the city of Kaunas. Therefore, the legal regulation that prescribes that new plots of land of up to 0.12 ha in size may be transferred to citizens for individual construction in the city of Kaunas as compensation for the previously owned real property specified in the law may not be regarded as discriminatory or as creating preconditions for violating Article 29 of the Constitution.

10.3. Thus, it should be held that the government resolution of 23 July 1998 (wording of 31 March 2010), insofar as it approves 0.12 ha as the maximum size for new plots of land to be transferred for individual construction in the city of Kaunas, is not in conflict with Article 29 of the Constitution.

11. It has been mentioned that the petitioner also doubts whether the impugned government resolution to the specified extent is in compliance with Paragraph 3 of Article 5 of the Law.

12. The doubts of the petitioner about the lawfulness of the government resolution of 23 July 1998 (wording of 31 March 2010) are substantiated, inter alia, by the fact that, when adopting its resolution of 23 July 1998 (wording of 31 March 2010) by which the government resolution of 23 July 1998 (wording of 5 March 1999) was reworded and which reduced to 0.12 ha the maximum size of new plots of land to be transferred for no consideration for individual construction in the city of Kaunas, the Government was not following the procedure, laid down in Paragraph 3 of Article 5 of the Law, for approving the sizes of new plots of land, i.e. it approved the said size in the absence of any proposal of Kaunas City Municipality. Therefore, in the opinion of the petitioner, in view of the procedure of its adoption, the impugned legal regulation is in conflict with Paragraph 3 of Article 5 of the Law and with the constitutional principle of a state under the rule of law.

Thus, it is clear from the arguments of the petitioner that it doubts whether, in view of the procedure of its adoption, the government resolution of 31 March 2010 to the specified extent is in compliance with the Constitution and Paragraph 3 of Article 5 of the Law.

13. As mentioned before, under Paragraph 3 of Article 5 of this law, the Government, when approving the sizes of new plots of land to be transferred into the ownership of citizens for no consideration in each town, must follow the procedure established by the legislature—to approve such sizes only upon receiving a proposal regarding the establishment of those sizes from the respective municipality that is responsible for planning its territory; the Government must follow this procedure each time the said sizes are reapproved (amended).

14. It has also been mentioned that the government resolution of 31 March 2010 amended the previously valid legal regulation: the amended legal regulation no longer provides for the possibility of transferring new plots of land ranging between 0.12 ha and 0.2 ha in size to citizens, as compensation for the previously owned real property specified in the law, for individual construction in areas other than the central part of the city of Kaunas, or in the areas of the city of Kaunas other than those with developed infrastructure, or in the areas of the city of Kaunas other than those with underdeveloped infrastructure; in addition, according to the amended legal regulation, the maximum size of new plots of land to be transferred into the ownership of citizens for no consideration for individual construction in the city of Kaunas diminished from 0.2 ha to 0.12 ha.

15. The material of the constitutional justice case at issue and the preparations for drafting the government resolution of 31 March 2010 make it clear that:

in the course of implementing the Special Action Plan for the Restoration of the Rights of Ownership to Land in the Cities of Kaunas and Vilnius (approved by the 27 May 2009 order (No. 3D-373) of the Minister of Agriculture of the Republic of Lithuania) which, inter alia, provided for the preparation of a draft amendment to the government resolution of 23 July 1998 (wording of 5 March 1999), Vilnius City Municipality and Kaunas City Municipality were requested to present proposals relating to the establishment of the sizes of new plots of land for gardens, kitchen gardens, or other similar purposes where such plots of land were to be assigned to citizens as compensation for the previously owned real property specified in the law;

Kaunas City Municipal Administration agreed that the government resolution of 23 July 1998 (wording of 5 March 1999) should be supplemented with the provision that the sizes of new plots of land, to be transferred to citizens, designated for gardens, kitchen gardens, or other similar purposes in the city of Kaunas must not exceed 0.06 ha (letter of Kaunas City Municipal Administration No. (A27V123)-R-48 of 6 January 2010 addressed to the National Land Service under the Ministry of Agriculture);

no proposals were presented to the Government for changing the sizes (and/or areas where the relevant plots could be located) of new plots of land to be transferred into the ownership of citizens for no consideration for individual construction in the city of Kaunas.

16. When deciding whether, in view of the procedure of its adoption, the government resolution of 31 March 2010, to the extent specified by petitioner, is in compliance with the Constitution and Paragraph 3 of Article 5 of the Law, it should be noted that, as mentioned before, the constitutional principle of a state under the rule of law implies that law-making subjects are subject to various requirements, inter alia, it implies that law-making subjects are allowed to pass legal acts only without exceeding their powers, and that substatutory legal acts must be adopted on the basis of laws. It has also been mentioned that, under the Constitution, the Government, while passing legal acts, must observe the valid laws; should the Government fail to observe laws, the constitutional principle of a state under the rule of law would be negated.

16.1. It should be noted that, even though, as mentioned before, according to the legal regulation as amended by the government resolution of 31 March 2010, the sizes of new plots of land to be transferred for no consideration to citizens for individual construction in the specified areas in the city of Kaunas remained unchanged (the sizes of new plots of land to be transferred to citizens for no consideration may, as before, be 0.04 ha in the central part of the city, but must not exceed 0.06 ha in areas with developed infrastructure, and must not exceed 0.12 ha in areas with underdeveloped infrastructure), however, since the amended legal regulation no longer provides for the possibility of transferring new plots of land to citizens, as compensation for the previously owned real property specified in the law, for individual construction in areas other than the central part of the city of Kaunas, or in the areas of the city of Kaunas other than those with developed infrastructure, or in the areas of the city of Kaunas other than those with underdeveloped infrastructure, the maximum size of new plots of land to be transferred to citizens for no consideration for individual construction in the city of Kaunas diminished from 0.2 ha to 0.12 ha.

Thus, even though the Government, when adopting its resolution of 31 March 2010, did not have the purpose of changing the sizes of new plots of land to be transferred to citizens for no consideration for individual construction in the city of Kaunas, it had to take into consideration the fact that there would be changes in the maximum size of new plots of land to be transferred into the ownership of citizens for no consideration for individual construction in the city of Kaunas, because the amended legal regulation would not contain the provision providing for the possibility of transferring new plots of land with sizes ranging between 0.12 ha and 0.2 ha to citizens, as compensation for previously owned land, residential houses, parts thereof, or flats, for individual construction in areas other than the central part of the city of Kaunas, or in the areas of the city of Kaunas other than those with developed infrastructure, or in the areas of the city of Kaunas other than those with underdeveloped infrastructure. Consequently, in order to pass the legal regulation changing the sizes of new plots of land to be transferred into the ownership of citizens for no consideration in the city of Kaunas, the Government, according to the procedure laid down in Paragraph 3 of Article 5 of the Law, should have received a proposal to this effect from Kaunas City Municipality.

16.2. It should be held that the Government, in the absence of any proposal of Kaunas City Municipality, when adopting its resolution of 31 March 2010, inter alia, establishing a smaller maximum size of 0.12 ha (instead of the former 0.2 ha) of new plots of land to be transferred to citizens for no consideration for individual construction in the city of Kaunas, was not following the procedure that is established in Paragraph 3 of Article 5 of the Law and which requires that such sizes may be approved only upon receiving a proposal of the respective municipality regarding the establishment (amendment) of these sizes, and violated the constitutional principle of a state under the rule of law, whereby the Government, when passing legal acts, must observe the valid laws.

17. In the light of the foregoing arguments, the conclusion should be drawn that, in view of the procedure of its adoption, the government resolution of 31 March 2010, insofar as it no longer contains the stipulation that new plots of land ranging between 0.12 ha and 0.2 ha in size should be transferred to citizens for individual construction in the “other areas” of the city of Kaunas as compensation for previously owned land, residential houses, parts thereof, or flats, is in conflict with the constitutional principle of a state under the rule of law and Paragraph 3 of Article 5 of the Law.

18. In this context, it should be noted that, as mentioned before, the provision of Paragraph 3 of Article 5 of the Law, which lays down the procedure to be followed in the course of approving the sizes of new plots of land to be transferred into the ownership of citizens for no consideration, seeks to ensure that the Government would not approve such sizes in towns by failing to take into consideration the actual situation of a concrete municipality responsible for planning its territory, and that the legal regulation approving the sizes of such plots of land, in the light of the state policy in the sphere of territorial planning, would create the preconditions for municipalities to form a certain number of plots of land required for the restoration of the rights of ownership; how such a procedure is followed exerts a direct influence on the content of the government legal act by which the said sizes are approved.

In the context of the constitutional justice case at issue, it should be noted that, even though Kaunas City Municipality did not present any proposals relating to changing the sizes of new plots of land to be transferred into the ownership of citizens for no consideration for individual construction in the city of Kaunas, however, the aforementioned letter of Kaunas City Municipal Administration of 27 March 2015 makes it clear that Kaunas City Municipality did not have any possibilities of planning larger than 0.12-hectare plots of land due to the lack of land, within the territory of the city of Kaunas, on which the required number of new plots of land with the size of larger than 0.12 ha could be drafted so that the said plots could be transferred to citizens, as compensation for the previously owned real property specified in the law, for individual construction or for other purposes on the territory of the city of Kaunas.

Thus, the sizes of new plots of land to be transferred into the ownership of citizens for no consideration, as approved by the government resolution of 31 March 2010, reflected the actual situation in Kaunas City Municipality despite the fact that the Government, when adopting the said resolution, was not following the procedure, laid down in Paragraph 3 of Article 5 of the Law, for approving the sizes of new plots of land to be transferred to citizens as compensation for previously owned land, residential houses, parts thereof, or flats. In addition, this legal regulation has created the preconditions for this municipality, in the light of the state policy in the sphere of territorial planning, to form a certain number of new plots of land required for the restoration of the rights of ownership (as mentioned before, in the city of Kaunas, there was no possibility of planning larger than 0.12-hectare new plots of land). Therefore, it needs to be emphasised that the aforementioned violation of the procedure, laid down in Paragraph 3 of Article 5 of the Law, for approving the sizes of new plots of land did not have a direct influence on the content of the impugned legal act: it is clear from the material of the case that the content of the said legal act could not be different.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 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:

To recognise that, in view of the procedure of its adoption, the Resolution of the Government of the Republic of Lithuania (No. 345) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 920) ‘On the Approval of the Sizes of New Plots of Land in Cities’ of 23 July 1998” of 31 March 2010 (Official Gazette Valstybės žinios, 2010, No. 40-1904), insofar as it no longer contains the stipulation that new plots of land ranging between 0.12 ha and 0.2 ha in size should be transferred to citizens for individual construction in the “other areas” of the city of Kaunas as compensation for previously owned land, residential houses, parts thereof, or flats, is in conflict with the constitutional principle of a state under the rule of law and Paragraph 3 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.

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

Justices of the Constitutional Court:             Elvyra Baltutytė

                                                                                 Vytautas Greičius

                                                                                 Danutė Jočienė

                                                                                 Pranas Kuconis

                                                                                 Gediminas Mesonis

                                                                                 Vytas Milius

                                                                                 Egidijus Šileikis

                                                                                 Algirdas Taminskas

                                                                                 Dainius Žalimas