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On the residential houses bought out by the state

Case No. 27/2010

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF ARTICLE 8 AND ITEM 2 (WORDING OF 13 MAY 1999) OF ARTICLE 15 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

 30 May 2013

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

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 May 2013, in the Court’s hearing heard, under written procedure, constitutional justice case No. 27/2010 subsequent to petition No. 1B-32/2010 of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether Article 8 and Item 2 (wording of 13 May 1999) of Article 15 of the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property are (were) not in conflict with Article 23, Paragraph 1 of Article 29, and Paragraphs 2 and 3 of Article 46 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

 

The Constitutional Court

has established:

I

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

  1. Under the impugned Item 2 (wording of 13 May 1999) of Article 15 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), residential houses, parts thereof, and flats were bought out by the state if all the three conditions provided in this item are established: more than 50 percent of the main constructions have been altered, the total area exceeds the former by 30 percent and it is impossible to separate the created new total area from the former one. Under the former legal regulation consolidated in the Republic of Lithuania’s Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” adopted on 18 June 1991, in order to attribute the residential houses, parts thereof, and flats to the property bought out by the state, one should have established not all the said conditions. Thus, according to the petitioner, the impugned legal regulation created a possibility to return the residential houses, parts thereof and flats in kind to a larger circle of citizens, at the same time the number of the people who had the possibility of staying and living in the same house or flat in which they had lived for a long time, who had taken care of it and had made investments into it, etc., diminished. Thus, in the opinion of the petitioner, the impugned legal regulation was unfair with regard to those citizens who, according to the previously established conditions, had not been given back the residential houses, parts thereof, and flats in kind, as well as with regard to those persons, who, according to the impugned legal regulation, had fewer possibilities of retaining the rented dwelling, thus, the constitutional principle of the equality of all persons before the law consolidated in Paragraph 1 of Article 29 of the Constitution was violated.

The petitioner also states that, under the provisions of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” in its initial wording, “the residential houses were bought out by the state if only two conditions had been satisfied: when the residential houses had been improved by expanding the total area by more than one third and when it was impossible to separate the created new total area from the former one.” Thus, according to the petitioner, “the criterion of the alteration by more than 50 percent of the main constructions as consolidated by the impugned legal regulation was an additional condition (criterion), and, after it had been fulfilled, the subject of the restoration of the rights of ownership lost the possibility of the restoration of his rights of ownership to the residential house by retrieving it in kind”, therefore, “after an additional condition of the retrieving of the property in kind had been included, the owners found themselves in a worse legal situation than those persons who, in the absence of any additional conditions, had restored their rights of ownership to the residential house by retrieving it in kind”, in such a way, in the opinion of the petitioner, the preconditions were created that “denied the right of the owners (the subjects of the restoration of the rights of ownership) to be treated equally”.

In addition, in the opinion of the petitioner, after the impugned legal regulation had established a different criterion of the alteration of the main constructions of the residential house, part thereof or the flat (“more than 50 percent of the main constructions” instead of “more than 60 percent”), the constitutional principle of the equality of all persons before the law was violated due to the fact that the different conditions for the retrieving of the property in kind had been created. At the same time, according to the petitioner, one denied the legitimate expectation of the retrieving of the property in kind of those persons who, “if the former legal regulation, under which the 60 percent criterion was applied, had been effective, would have fully and absolutely implemented that right of theirs”, as well as did not heed the requirements of legal certainty and the stability of the legal regulation governing the restitution relations.

  1. The petitioner notes that there were possibilities for such situations, where the lawful possessor of a residential house, part thereof or a flat to which the rights of ownership subject to the restoration had expanded its total area by more than 30 percent and it was impossible to separate the created new total area from the former one, however, the residential house or flat had been expanded without altering the main constructions or by altering them by less than 50 percent. In such a case, under Item 2 (wording of 13 May 1999) of Article 15 of the Law, if one of the conditions—more than 50 percent of the main constructions have been altered—had not been established, the residential house or flat would not have been subject to buyout. In such a way, the returning of the real property to the owners (subjects of restoration of the rights of ownership), where the area of the property was larger than the one that the former owners used to possess, violated Article 23 of the Constitution, created privileges to such persons, violated Paragraph 1 of Article 29 of the Constitution, as well as the striving for an open, just and harmonious civil society and a state under the rule of law which is established in the Preamble to the Constitution, from which the principle of the reconciliation of interests of the owners and tenants stems.
  2. The petitioner states that, under the former legal regulation established in Article 8 (wording of 12 January 1993) of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”, the expenses for the improvement of the returned residential houses or flats used to be compensated to the tenants, however, the impugned Article 8 of the Law no longer establishes such legal regulation. In such a way, in the opinion of the petitioner, the constitutional principle of the equality of rights of persons was denied and the legitimate expectations of persons that the expenses for the improvement of the rented property will be compensated, as well as their rights of ownership, were violated inasmuch as the residential dwelling had been improved.

II

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representative of the Seimas, the party concerned, who was Edmundas Pupinis, the then Chairperson of the Seimas Committee on Rural Affairs, wherein it is maintained that the impugned legal regulation is not in conflict with the Constitution. The position of the representative of the party concerned is substantiated by the following arguments.

  1. In order that the state could buy out a residential house, part thereof or a flat, under the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property adopted by the Seimas on 1 July 1997, the whole complex of the conditions provided for in Item 2 of Article 15 of this law was necessary. The law was drafted after the process of the restitution had been temporarily suspended from 22 January 1997 until 8 July 1997 in view of the fact that the Seimas and other state institutions used to receive a lot of complaints about the restoration of the rights of ownership to the existing real property. The new legal regulation related to the conditions of the buyout of the residential houses, parts thereof and flats was established in view of the imperfections of the legal regulation that became visible during the restitution process after an assessment of the changes in the social, economic, legal, and other conditions and upon the reconciliation of the interests of the persons to whom the rights of ownership were restored with the needs of society. Such legal regulation requiring that the whole complex of the conditions by established is still in force.

According to the representative of the party concerned, the legislator amended the legal regulation while taking account of the necessity to protect such constitutional values as justice, a balance of interests, and the supremacy of the Constitution.

According to the representative of the party concerned, the legislator, while gradually extending the rights of the owners to restore the rights of ownership to the residential houses, parts thereof, and flats, also established the state guarantees for the tenants living in them.

  1. The representative of the party concerned notes that the question of the compliance of Item 2 of Article 15 (wording of 1 July 1997) of the Law with the Constitution has already been considered at the Constitutional Court. While implementing the Constitutional Court’s ruling of 27 October 1998, the legislator, through the impugned legal regulation, removed from the legal regulation the provision “altered by more than 60 percent” which had been in conflict with the Constitution and restored the norm established by the previous legal regulation to the effect that more than 50 percent of the main constructions must be altered. The legislator sought to create a situation where the rights of ownership to the residential houses, parts thereof and flats would be restored to citizens under the same conditions that had been established in the previously effective restitution law. The representative of the party concerned at the same time notes that the legislator’s amendments to the legal regulation made while implementing the provisions of the Constitutional Court’s ruling, may not be assessed as disregard for the stability of the legal regulation.

The norm that more than 50 percent of the main constructions must be altered, upon exceeding which the state buys out the real property, according to the representative of the party concerned, served best the interests both of the tenants and those persons who had the right to the restoration of the rights of ownership, since only if more than 50 percent of the main constructions are altered, it should be acknowledged that the tenants essentially created new real property.

  1. In the opinion of the representative there is no ground to establish an obligation in Article 8 of the Law to compensate for the tenants the expenses for the improvement of the residential houses, parts thereof, or flats. Under the legal regulation established in the Republic of Lithuania’s Law on the Amount, Sources, Terms and Procedure for the Payment of the Compensation for the Real Property Bought Out by the State, and on the Guarantees and Concessions Which are Provided For in the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, the value of the property transferred to the tenants gratuitously equals the value of the property they rent. In the course of the establishment of the value of the rented property the value of the improvement made to that property is included. Thus, the expenses for the improvement are compensated to the tenants through the state guarantees provided to them. The representative of the party concerned also notes that, after the law had established the obligation to compensate the expenses of the improvement of the property for the tenants, such legal regulation could be assessed as establishment of privileges to the tenants, since their expenses for the improvement of the real property would be compensated twice.

The Constitutional Court

holds that:

I

  1. Even though the petitioner requests an investigation into the compliance of Article 8 and Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property with Article 23, Paragraph 1 of Article 29 and Paragraphs 2 and 3 of Article 46 of the Constitution and the constitutional principle of a state under the rule of law, the petition contains no arguments substantiating the petitioner’s doubts about the compliance of Article 8 and Item 2 (wording of 13 May 1999) of Article 15 of this Law with Paragraphs 2 and 3 of Article 46 of the Constitution.
  2. Thus, the petition of the petitioner is to be treated as a petition requesting an investigation into the compliance of Article 8 and Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property with Article 23 and Paragraph 1 of Article 29 of the Constitution and with the constitutional principle of a state under the rule of law.

II

  1. It has been mentioned that the Supreme Administrative Court of Lithuania, the petitioner, requests an investigation into the compliance of inter alia Article 8 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property with Article 23 and Paragraph 1 of Article 29 of the Constitution and with the constitutional principle of a state under the rule of law.
  2. As mentioned before, according to the petitioner, under the former legal regulation established in Article 8 (wording of 12 January 1993) of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”, the expenses for the improvement of the residential houses or flats subject to being returned had to be compensated to the tenants, however, the impugned Article 8 of the Law no longer establishes such legal regulation; in such a way, in the opinion of the petitioner, one denied the constitutional principle of the equality of rights of persons and the legitimate expectations of persons that the expenses for the improvement of the rented property will be compensated, thus, their rights of ownership were violated inasmuch as the residential dwelling had been improved.

Thus, the petitioner does not impugn the legal regulation established in Article 8 of the Law, but rather it impugns something that is not established in this Law, which, however, in the opinion of the petitioner, should have been established therein. Thus, in this situation the issue of legislative omission is raised, i.e. such a gap in the legal regulation which is prohibited by the Constitution.

  1. Article 8 “The Procedure and Conditions of the Restoration of the Rights of Ownership to Residential Houses, Parts Thereof and Flats” (wording of 1 July 1997) of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property prescribed:

“1. The rights of ownership to residential houses, parts thereof, and flats shall be restored to the persons specified in Article 2 of this Law by returning them in kind, except the residential houses, parts thereof, and flats which are subject to purchase by the State pursuant to Article 15 of this Law.

  1. The State shall compensate, according to Article 16 of this Law, citizens for the residential houses, parts thereof, and flats which are subject to the State buy-out, as well as for the residential houses, parts thereof, and flats, specified in Article 3 of this Law, which have not survived after 1 August 1991 due to the decisions adopted by State and municipal institutions.
  2. Upon the returning of the residential houses, parts thereof, and flats in kind, the right of ownership to land on which the given back houses are built, shall be restored in the manner established through Articles 4 and 5 of this Law, irrespective of whether a separate application for giving back this land has been filed.
  3. Upon returning residential houses, parts thereof, flats in kind or transferring into ownership other dwellings to the persons specified in Article 2 of this Law, these citizens together with their family members and subtenants must, within two months from the day of transferring the empty dwelling premises to them, vacate the dwellings rented by them, belonging to the State or municipal housing fund.
  4. If citizens do not desire to get back the houses in kind where tenants reside or do not agree with the conditions laid down in Article 20, they shall receive compensation according to Article 16 of this Law.”

Thus, Article 8 of the Law did not provide that, upon the restoration of the rights of ownership of citizens to the residential houses, parts thereof, and flats, when they are returned in kind, one must compensate for the tenants their expenses for improving this property.

  1. In the context of the constitutional justice case at issue it needs to be mentioned that Paragraph 7 of Article 21 of the Law inter alia established that the procedure and conditions of the implementation of the guarantees to the tenants provided for in this law shall be established by a separate law.

On 16 June 1998, the Seimas adopted the Law on the Amount, Sources, Terms and Procedure for the Payment of the Compensation for the Real Property Bought Out by the State, and on the Guarantees and Concessions Which are Provided For in the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which came into force on 8 July 1998.

This Law (wording of 16 June 1998 with subsequent amendments and/or supplements) prescribed:

– “The size of the land plot for building a residential house which is provided gratis to the tenant, the compensated expenses related with the acquisition of other residential premises, as well as the value of other residential premises which are provided gratis must comply with the value of the premises rented by the tenants” (Paragraph 3 of Article 9 (wording of 16 June 1998));

– “The value of the land plot for building a residential house which is provided gratis to the tenant, the compensated expenses related with the acquisition of other residential premises, as well as the value of other residential premises which are provided gratis must comply with the value of the premises rented by the tenants” (Paragraph 9 of Article 9 (wording of 13 June 1999)).

  1. It needs to be noted that the Supreme Administrative Court of Lithuania, the petitioner, was considering under appellate procedure an administrative case wherein a dispute had arisen as a result of the decision to restore the rights of ownership to a residential house by returning it in kind. The said case inter alia was dealing with the fact whether this house had not been reconstructed so that, under the Law, it had to be bought out by the state, but the issue regarding the adjudication (compensation) of the house improvement expenses was not dealt with.

Thus, the Supreme Administrative Court of Lithuania, the petitioner, in the said administrative case adopted a ruling to suspend the consideration of that case and to apply to the Constitutional Court as regards inter alia the constitutionality of Article 8 of the Law from the aspect (to such an extent) that this article should not be applied in the case considered by the said court.

  1. Under the Constitution and the Law on the Constitutional Court, no court has locus standi to apply to the Constitutional Court with a petition requesting an investigation into whether a law (part thereof) or another legal act (part thereof), which should not (could not) be applied in the case considered by the said court, is not in conflict with the Constitution (inter alia the Constitutional Court’s decision of 22 May 2007 and the rulings of 2 September 2011 and 12 April 2013).

Under Item 1 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, by its decision, the Constitutional Court refuses to consider petitions requesting an investigation into the compliance of a legal act with the Constitution if the petition was filed by an institution or a person who does not have the right to apply to the Constitutional Court, and, under Paragraph 3 of Article 69 of the Law on the Constitutional Court, if the grounds for the refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case is adopted.

  1. In view of the foregoing, the part of the constitutional justice case subsequent to the petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into the compliance of Article 8 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property with Article 23 and Paragraph 1 of Article 29 of the Constitution and with the constitutional principle of a state under the rule of law, is to be dismissed.

III

  1. In the constitutional justice case at issue one investigates into the compliance of Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which establishes the criteria for the attribution of the reconstructed residential houses, parts thereof and flats to the property bought out by the state, with Article 23 and Paragraph 1 of Article 29 of the Constitution and with the constitutional principle of a state under the rule of law.
  2. In the acts of the Constitutional Court a broad official constitutional doctrine of restitution—the restoration of the rights to the existing real property—has been formulated. In the context of the constitutional justice case at issue the following provisions of the official constitutional doctrine of the restitution should be noted.

2.1. While regulating the restoration of the denied rights of ownership, the legislator enjoys the discretion to establish the conditions and procedure for the restoration of the rights of ownership (the Constitutional Court’s rulings of 4 March 2003, 22 December 2010 and 19 June 2012). The establishment of new conditions to be applied in the restoration of the rights of ownership is also within the competence of the legislator (the Constitutional Court’s rulings of 27 May 1994 and 27 October 1998).

2.2. The legislator, when he legislatively establishes the ways, conditions and procedure of the restoration of the rights of ownership to the existing real property, 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, by Article 29 thereof, which guarantees the equality of rights of persons, and 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 legislator is also bound by other norms and principles of the Constitution (the Constitutional Court’s ruling of 22 December 2010).

2.3. Although the constitutional principle of a state under the rule of law implies the requirements of legal certainty, legal security, the protection of legitimate interests, and other requirements, inter alia those raised to the legal regulation of the restitution relations, it is not permitted to construe the said principle to the effect that, purportedly, it does not permit in general that the legislator, after it began the restoration of the rights of ownership under certain conditions, change these conditions later, inter alia establish new, additional conditions, when through this one seeks to protect certain constitutional values, upon which harm might be inflicted or conditions for such harm to appear might 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 ruling of 5 July 2007).

2.4. The right of citizens to restore their violated rights of ownership under procedure and conditions established by law by retrieving the residential houses, parts thereof, and flats in kind stems from the principle of the constitutional protection of the right of ownership, which is innate, also, from the laws adopted by the Seimas regulating the restoration of the rights of ownership. The state, after it has adopted a decision to restore the rights of ownership, must follow the undertaken obligations and create the conditions for the actual implementation of the said right (the Constitutional Court’s ruling of 4 March 2003). The provision that in case there are no possibilities to retrieve the property in kind, then compensation must be assigned, is not in conflict with the principles of the inviolability of property and the protection of the right of ownership, since fair compensation also ensures the restoration of the rights of ownership, however, it is important that the conditions which are established by law and which regulate the relations of the restitution, due to which the property cannot be retrieved in kind, be in line with the constitutional provisions governing the protection of ownership (the Constitutional Court’s ruling of 5 July 2007).

2.5. While regulating the restoration of the rights of ownership to the existing real property, the legislator must take account of the constitutional principles of the protection of property, as well as of the fact that in the course of the restoring of the rights of ownership to the existing real property it is necessary to protect also the other values entrenched in the Constitution, inter alia the striving for an open, just and harmonious civil society, and to ensure that, while restoring the rights of ownership of certain persons, the owners, one does not violate the rights and legitimate interests of other persons as well as those of the entire society (the Constitutional Court’s rulings of 23 August 2005 and 22 December 2010). In the process of the restoration of the rights of ownership, one must reconcile the interests of both the former owners and society, as well as the legitimate interests of the former and present owners of the same property and of the tenants who reside in the houses subject to being returned (inter alia the Constitutional Court’s rulings of 12 November 1996 and 4 March 2003). In the course of the restoration of the rights of ownership to residential houses, parts thereof, or flats, there exist a variety of possible ways of the co-ordination of the protection of the rights of the former owners and the rights of the tenants (the Constitutional Court’s ruling of 22 December 1995).

2.6. While having chosen the defence of the rights of ownership as the returning of the houses in kind, the legislator at the same time ensured the rights of the tenants to the dwelling place (the Constitutional Court’s ruling of 22 December 1995). The legitimate expectations of the tenants who reside in the houses, parts thereof, and flats subject to being returned (already returned) to the owners, of the acquiring of the ownership of other residential premises of equal value, stem from the laws adopted by the Seimas establishing state guarantees to the tenants (the Constitutional Court’s ruling of 4 March 2003).

The owners have a legitimate expectation that their rights of ownership to the existing residential houses, parts thereof, and flats will be restored; this legitimate expectation of theirs is protected and safeguarded by the Constitution (the Constitutional Court’s ruling of 4 March 2003).

There is not any opposition between the duty of the state for the owners and the duty of the state for the tenants residing in the houses, parts thereof, and flats subject to being returned (already returned) to the owners (the Constitutional Court’s ruling of 4 March 2003).

  1. As mentioned before, the legislator, when he legislatively establishes the ways, conditions and procedure of the restoration of the rights of ownership to the existing real property, is bound by the norms and principles of the Constitution, inter alia by Article 29 thereof, which guarantees the equality of rights of persons, and 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.

3.1. In acts of the Constitutional Court it has been held on more than one occasion that inseparable elements of the constitutional principle of a state under the rule of law are the protection of legitimate expectations, legal certainty, and legal security; these constitutional principles 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, to fulfil undertaken obligations for a person; the persons have the right to reasonably expect that their rights acquired under the valid laws or other legal acts that are not in conflict with the Constitution will be retained for the established period of time and could be implemented in reality; the legal regulation may be changed only by following the procedure established in advance; it is not permitted to deny the legitimate interests and legitimate expectations of the person through changes in the legal regulation; if the protection of legitimate expectations, legal certainty, and legal security were not ensured, the trust of the person in the state and law would not be secured (inter alia the Constitutional Court’s rulings of 4 March 2003 and 15 February 2013).

3.2. In the context of the constitutional justice case at issue, it needs to be noted that the Constitutional Court has held that, under the Constitution, those expectations of the person in the relationships with the state are protected and defended, which stem from the Constitution itself or from the laws and other legal acts that are not in conflict with the Constitution. Only these expectations of the person in the relationships with the state are considered legitimate (the Constitutional Court’s rulings of 4 July 2003, 3 December 2003 and 13 December 2004).

3.3. The Constitutional Court has also held that, while regulating the implementation of the rights and freedoms of the person entrenched in the Constitution, the legislator cannot deny any legitimate expectations of the person, since the principles of legal regulation and, first of all, the constitutional principle of a state under the rule of law, which are entrenched in the Constitution, prohibit unreasonable aggravation of the legal situation of a person, as well as any denial of the acquired rights and any ignoring of legitimate interests of a person; in case the legal certainty, the legal stability, and the protection of legitimate expectations were denied, the constitutional principle of a state under the rule of law would be violated; if the legal situation of a person were unreasonably aggravated, Article 29 of the Constitution might be violated also, which establishes the equality of rights of persons (the Constitutional Court’s ruling of 4 March 2003).

3.4. The Constitutional Court, while construing the provisions of Article 29 of the Constitution, has held on more than one occasion that the constitutional principle of the equality of all persons before the law which is consolidated in this article requires that in law the main rights and duties be established equally to all; this principle means the innate right of a human being to be treated equally with others, it obliges one to legally assess homogenous facts in the same manner and prohibits from the arbitrary assessment of the facts that are the same in essence in a different manner, but it does not deny a different legal regulation, established by law, with respect to certain categories of persons who are in different situations. The constitutional principle of the equality of persons before the law would be violated if certain persons or groups of such persons were treated in a different manner, even though there are not any differences of such a character and to such an extent between the said groups of persons so that their uneven treatment could be objectively justified (inter alia the Constitutional Court’s rulings of 29 June 2012 and 15 February 2013).

  1. It also needs to be noted that, as the Constitutional Court has held on more than one occasion, Paragraph 1 of Article 107 of the Constitution is to 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 recognised as being in conflict with any legal act of higher power, inter alia (and, first of all) with the Constitution, is removed from the Lithuanian legal system for good, as it may never be applied anymore. A constitutional duty arises to a corresponding law-making subject—the Seimas, the President of the Republic, or the Government—to recognise such a legal act (part thereof) as no longer valid or, if it is impossible to do that without the corresponding legal regulation of the social relations in question, to change it so that the newly established legal regulation is not in conflict with legal acts of higher power, inter alia (and, first of all) the Constitution; but even until this constitutional duty is carried out, the corresponding legal act (part thereof) may not be applied under any circumstances; in this respect the legal power of such a legal act is abolished (inter alia the Constitutional Court’s decisions of 8 August 2006 and 1 February 2008, and the rulings of 25 October 2011 and 6 February 2012).

IV

On the compliance of Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property with Article 23 and Paragraph 1 of Article 29 of the Constitution and with the constitutional principle of a state under the rule of law.

  1. It has been mentioned that the Supreme Administrative Court of Lithuania, the petitioner, requests an investigation into the compliance of Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property with Article 23 and Paragraph 1 of Article 29 of the Constitution and with the constitutional principle of a state under the rule of law.
  2. In the context of the constitutional justice case at issue, it is important to find out how the legal regulation establishing the criteria under which the reconstructed (improved) residential houses, parts thereof, and flats must be bought out by the state was changing.
  3. On 18 June 1991, the Supreme Council adopted the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”. After this law came into force on 1 August 1991, the restoration of the rights of ownership to the existing real property began.

3.1. Item 2 of Article 14 “The Residential Houses Subject to Buyout” (wording of 18 June 1991) of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” prescribed: “Residential houses shall be bought out by the state from the persons specified in Article 2 of this Law in the ways of the buying out (compensation) as established in Article 16 of this law, <…> if: <...> 2) it is a wooden residential house which has been substantially improved, or if the house has been augmented, rebuilt, or reconstructed, thereby increasing the total floor area by more than 1/3, in a manner which makes it impossible to separate the additional total floor area from the original one.”

Thus, Item 2 of Article 14 (wording of 18 June 1991) of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” established the criteria according to which the improved residential houses used to be bought out by the state from the citizens having the right to restore the rights of ownership to the said houses. Under the legal regulation established in this item, the state used to buy out the wooden residential houses that were substantially improved, as well as those improved residential houses whose total area was increased more than 1/3 and it was impossible to separate the created new total area from the original one.

It needs to be noted that neither Article 14 (wording of 18 June 1991) of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”, nor other articles thereof established the concrete percentage limit of the amount of the altered main constructions of these houses determining the attribution of the residential houses to the property which is bought out by the state.

3.2. The Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”, inter alia Article 14 thereof, has subsequently been amended and/or supplemented on more than one occasion.

3.3. On 12 November 1993, the Seimas adopted the Law “Amending the Law on ‘On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property’”, which came into force on 20 February 1993.

3.3.1. This law amended inter alia Article 14 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” and set it forth in its new wording, however, the legal regulation established in Item 2 of the said article did not change, i.e. under the legal regulation established in this item, inter alia those improved residential houses whose total area had been increased by more than 1/3 and it was impossible to separate the created new total area from the original one were subject to buyout by the state.

3.3.2. It needs to be noted that the aforementioned law also amended Article 8 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” and set it forth in its new wording.

Item 2 of Paragraph 2 of Article 8 “The Conditions and the Procedure of the Restoration of the Rights of Ownership to the Residential Houses” (wording of 12 January 1993) of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” prescribed: “The procedure and time limits for the giving back of residential houses (or parts thereof) shall be established by the Government of the Republic of Lithuania, pursuant to the provision that the residential houses shall be returned in those cases: <...> 2) when after they have been reconstructed, rebuilt or augmented, their total area has not increased by more than 1/3 and it is impossible to separate the newly created area from the initial area, or where not more than 50 percent of their main constructions have been altered.”

3.3.3. While construing Item 2 of Article 14 (wording of 12 January 1993) of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” (wording of 12 January 1993) and Item 2 of Paragraph 2 of Article 8 (wording of 12 January 1993) of this law in a systemic manner, one should draw a conclusion that, under the legal regulation established therein, not only inter alia those improved residential houses whose total area had been increased by more than 1/3 and it was impossible to separate the created new total area from the original one, but also those residential houses whose main constructions had been altered by more than 50 percent were not returned in kind (they were bought out by the state); in order for the residential houses not to be returned in kind it was sufficient for those houses to meet at least one of the criteria—the correspondingly increased total area or the correspondingly altered main constructions.

3.4. On 11 January 1994, the Seimas adopted the Law “Amending and Supplementing the Law on ‘On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property’”, which came into force on 26 January 1994.

This law amended inter alia Item 2 of Article 14 (wording of 12 January 1993) of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”.

Item 2 (wording of 11 January 1994) of Article 14 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” prescribed: “Residential houses shall be bought out by the state from the persons specified in Article 2 of this law in the ways of the buying out (compensation) as established in Article 16 of this law, <…> if: <...> 2) they have been reconstructed, rebuilt or augmented in a way that their total floor area has increased by more than 1/3 and it is impossible to separate the newly created floor area from the initial floor area, or where over 50 percent of their main constructions have been altered.”

If the legal regulation established in Item 2 (wording of 11 January 1994) of Article 14 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” is compared with the one established in Item 2 of Article 14 (wording of 12 January 1993) and Item 2 of Paragraph 2 of Article 8 (wording of 12 January 1993) of this law, it is obvious that the legal regulation did not change from the aspect significant in the constitutional justice case at issue, i.e. in order for the residential houses not to be returned in kind it was sufficient for those houses to meet at least one of the criteria—the correspondingly increased total area or the correspondingly altered main constructions: those reconstructed residential houses whose total area had been increased by more than 1/3 and it was impossible to separate the created new total area from the original one, as well as those reconstructed residential houses whose main constructions had been altered by more than 50 percent were bought out by the state (they were not returned in kind).

3.5. On 3 July 1995, the Seimas adopted the Law “Amending and Supplementing the Law on ‘On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property’”, which came into force on 19 July 1995.

3.5.1. This law recognised Article 14 (wording of 11 January 1994) of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” as no longer valid.

3.5.2. The aforementioned law also amended Article 8 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”.

Article 8 “The Procedure and Conditions of the Restoration of the Rights of Ownership to Residential Houses (Parts Thereof and Flats)” (wording of 3 July 1995) of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” inter alia prescribed: “The residential houses, parts thereof, and flats shall be returned in kind in every of these cases, if: <…> 6) the houses subject to the return are reconstructed, rebuilt so that their total area has been increased by more than 1/3, but it is possible to separate the created new total area from the original one, even though their main constructions have been altered by more than 50 percent, however, on 1 July 1995, they were vacant or leased for business activities—the part of the house corresponding to the part of the house prior to its reconstruction shall be returned” (Item 6 of Paragraph 2); “In all other cases which are not referred to in Paragraph 2 of this Article, residential houses, parts thereof, or flats shall not be returned in kind, and the right of ownership shall be restored by buying them out by the state from the persons <…> specified in Article 2 of this Law” (Paragraph 4).

Thus, under the quoted provisions of Article 8 (wording of 3 July 1995) of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”, the reconstructed residential houses, parts thereof, and flats were returned in kind if their total area had been increased by more than 1/3, but it was possible to separate the created new total area from the original one, regardless of the fact that their main constructions had been altered by more than 50 percent, if, on 1 July 1995, they were vacant or leased for business activities. Thus, those reconstructed residential houses, parts thereof, and flats were bought out by the state (not returned in kind) whose total area had increased by more than 1/3 and it was impossible to separate the created new total area from the original one, as well as whose main constructions had been altered by more than 50 percent and on 1 July 1995 they were not vacant or were not leased for business activities.

  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 (save Paragraph 7 of Article 21 thereof) on 9 July 1997.

4.1. Item 2 of Article 15 “The Residential Houses, Parts Thereof, and Flats Bought Out by the State” (wording of 1 July 1997) of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property prescribed: “Residential houses, parts thereof, and flats shall be bought out by the state from the citizens referred to in Article 2 of this Law and it shall be compensated for them according to Article 16 of this Law, if: <...> 2) these residential houses, parts thereof, and flats have been substantially reconstructed to such an extent that more than 60 percent of the main constructions have been altered and it is impossible to separate the created new total area from the former one, if the total area exceeds the former by 30 percent.”

If the legal regulation established in Item 2 of Article 15 (wording of 1 July 1997) of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property is compared with the one established in Item 2 of Paragraph 2 of Article 8 (wording of 12 January 1993) and Item 2 (wordings of 12 January 1993 and 11 January 1994) of Article 14 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” from the aspect impugned by the petitioner, it should be noted that the legal regulation changed inter alia so that the state bought out such residential houses, parts thereof, and flats which met both the criteria of the correspondingly altered main constructions and the criteria of the correspondingly increased total area, i.e. the state bought out those reconstructed residential houses whose main constructions had been altered by more than 60 percent, the total area exceeded the former by 30 percent, and it was impossible to separate the created new total area from the former one.

4.2. It needs to be noted that in its Ruling “On the compliance of Paragraphs 1, 4, 9 and 11 of Article 4, Paragraph 1 of Article 8, Item 2 of Article 15 and Paragraphs 1, 2, 3 and 4 of Article 20 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 27 October 1998, the Constitutional Court recognised that the provision “more than 60 percent of the main constructions have been replaced” of Item 2 of Article 15 (wording of 1 July 1997) of the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property was in conflict with Article 29 as well as Paragraphs 2 and 3 of Article 46 of the Constitution. In this ruling it was inter alia held that the said legal regulation was unfair in respect to the citizens to whom the rights of ownership to houses had already been restored when one had taken account of another norm of the replacement of the main constructions, which had determined that the residential houses were not subject to being returned to them in kind but were subject to buyout by the state. It also needs to be noted that, when referring to the impugned norm of the law, the owner had been able to retrieve his residential house in kind, from which only 40 percent of the main constructions had been left, which was, therefore, a virtually new object of the rights of ownership.

4.3. On 13 May 1999, the Seimas adopted the Republic of Lithuania’s Law Amending and Supplementing Articles 2, 4, 5, 10, 12, 13, 15, 16, 18, 20 and 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, which came into force on 2 June 1999. This law inter alia amended Item 2 of Article 15 (wording of 1 July 1997) of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, the compliance whereof with the Constitution is investigated in the constitutional justice case at issue, prescribed: “Residential houses, parts thereof, and flats shall be bought out by the state from the citizens referred to in Article 2 of this Law and it shall be compensated for them according to Article 16 of this Law, if: <...> 2) these residential houses, parts thereof, and flats have been substantially reconstructed to such an extent that more than 50 percent of the main constructions have been altered and it is impossible to separate the created new total area from the former one, if the total area exceeds the former by 30 percent.”

If the legal regulation established in Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property is compared with the one established in Item 2 of Article 15 (wording of 1 July 1997) of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property from the aspect impugned by the petitioner, it should be noted that the legal regulation did not change from the aspect that the residential houses, parts thereof, and flats which met both the criteria of the correspondingly altered main constructions and the criteria of the correspondingly increased total area were subject to buyout by the state, however, it changed from the aspect that a smaller percentage limit of the amount of the altered main constructions (“more than 50 percent” instead of “more than 60 percent”) was established.

It needs to be noted that it is obvious from the explanatory note of the draft Law Amending and Supplementing Articles 2, 4, 5, 10, 12, 13, 15, 16, 18, 20 and 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property that it had been drafted in order to implement the Constitutional Court’s ruling of 27 October 1998; for this purpose one inter alia had proposed consolidating “the former norm regarding the alteration of the main constructions of the residential houses, parts thereof, and flats (‘more than 50 percent have been altered’)” in Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

4.4. In this context it needs to be noted that Article 15 of the Law, inter alia Item 2 thereof, has subsequently been amended and/or supplemented on more than one occasion.

  1. To summarise the legal regulation established in the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” and in the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property from the aspects significant in the constitutional justice case at issue, it should be noted that:

– under the impugned legal regulation established in Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, those residential houses, parts thereof, and flats which met both the criteria of the correspondingly increased total area and the criteria of the correspondingly altered main constructions were considered as substantially reconstructed and subject to buyout by the state;

– the former legal regulation established in Item 2 of Paragraph 2 of Article 8 (wording of 12 January 1993) and Item 2 (wordings of 12 January 1993 and 11 January 1994) of Article 14 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” did not require that the improved (reconstructed) residential houses (parts thereof, flats) meet both the criteria of the correspondingly increased total area and the criteria of the correspondingly altered main constructions so that they could be attributed to the property subject to buyout by the state;

– the impugned legal regulation consolidated in Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, in comparison with the former legal regulation consolidated in Item 2 of Article 15 (wording of 1 July 1997) of this Law, established a smaller percentage limit of the amount of the altered main constructions (“more than 50 percent” instead of “more than 60 percent”) so that the residential houses, parts thereof, and flats could be bought out by the state; this limit was identical to the one established in the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”.

  1. As mentioned before, in the constitutional justice case at issue one investigates into the compliance of Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property with Article 23 and Paragraph 1 of Article 29 of the Constitution and with the constitutional principle of a state under the rule of law.
  2. The doubts of the petitioner regarding the compliance of this provision are grounded inter alia on the fact that, under the former legal regulation consolidated in the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” adopted on 18 June 1991, in order that the residential houses, parts thereof, and flats could be attributed to the property bought out by the state, one should have established not all the conditions related to the impugned legal regulation, thus, in the opinion of the petitioner, the legal regulation was unfair with regard to those citizens who, according to the previously established conditions, had not been given back the residential houses, parts thereof and flats in kind, as well as with regard to those persons who, according to the impugned legal regulation, had had fewer possibilities to retain the rented dwelling, thus, the constitutional principle of the equality of all persons before the law consolidated in Paragraph 1 of Article 29 of the Constitution had been violated; under the impugned legal regulation, if one of the conditions (that more than 50 percent of the main constructions must be altered) is not established, the subjects of the restoration of the rights of ownership had been given back the real property of a bigger area than the former owners used to possess, thus, according to the petitioner, one had violated Article 23 of the Constitution, privileges had been granted to them and one had violated Paragraph 1 of Article 29 of the Constitution, as well as the striving for an open, just and harmonious civil society and a state under the rule of law which is consolidated in the Preamble to the Constitution, from which the principle of the reconciliation of the interests of the owners and tenants stems.
  3. In order to decide whether Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (“[r]esidential houses, parts thereof, and flats are bought out by the state from the citizens specified in Article 2 of this law in the ways of the buying out (compensation) as established in Article 16 of this law, <…> if: <...> 2) they have been substantially reconstructed to such an extent that more than 50 percent of the main constructions have been altered and it is impossible to separate the created new total area from the former one, if the total area exceeds the former by 30 percent”) was not in conflict with Article 23 and Paragraph 1 of Article 29 of the Constitution and with the constitutional principle of a state under the rule of law, it needs to be noted that, as mentioned before, according to the official constitutional doctrine:

– while regulating the restoration of the denied rights of ownership, the legislator enjoys the discretion to establish the conditions and procedure for the restoration of the rights of ownership; the establishment of new conditions to be applied in the restoration of the rights of ownership is also within the competence of the legislator;

– the right of citizens to restore their violated rights of ownership under the procedure and conditions established by law by retrieving the residential houses, parts thereof, and flats in kind stems from the principle of the constitutional protection of the right of ownership, which is innate, also, from the laws adopted by the Seimas regulating the restoration of the rights of ownership;

– the legitimate expectations of the tenants who reside in the houses, parts thereof, and flats subject to being returned (already returned) to the owners, of the acquiring of the ownership of other residential premises of equal value, arise from the laws adopted by the Seimas establishing the state guarantees to the tenants;

– the owners have a legitimate expectation that their rights of ownership to the existing residential houses, parts thereof, and flats will be restored; such a legitimate expectation of theirs is protected and defended by the Constitution;

– in the process of the restoration of the rights of ownership, one must reconcile the interests of both the former owners and society, as well as the legitimate interests of the former and present owners of the same property and of the tenants who reside in the houses subject to being returned.

8.1. It needs to be noted that, as mentioned before, under the former legal regulation established in Item 2 of Paragraph 2 of Article 8 (wording of 12 January 1993) and Item 2 (wordings of 12 January 1993 and 11 January 1994) of Article 14 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” it was not required that the improved (reconstructed) residential houses (parts thereof, flats) meet both the criteria of the correspondingly increased total area and the criteria of the correspondingly altered main constructions so that they could be attributed to the property subject to buyout by the state. Thus, through the impugned legal regulation established in Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (“[r]esidential houses, parts thereof, and flats are bought out by the state from the citizens specified in Article 2 of this law in the ways of buying out (compensation) as established in Article 16 of this law, <…> if: <…> 2) they have been substantially reconstructed to such an extent that more than 50 percent of the main constructions have been altered and it is impossible to separate the created new total area from the former one, if the total area exceeds the former by 30 percent”), under which those residential houses, parts thereof, and flats which had met both the criteria of the correspondingly increased total area and the criteria of the correspondingly altered main constructions had been considered as substantially reconstructed and subject to buyout by the state, one created the preconditions for a larger extent implementation of the rights of citizens so that their violated rights of ownership could be restored, under the procedure and conditions established by law, by returning the residential houses, parts thereof, and flats to them in kind.

Thus, the impugned legal regulation expanding the rights of the subjects of the restoration of the rights of ownership so that their violated rights of ownership could be restored, under the procedure and conditions established by law, by returning the residential houses, parts thereof, and flats to them in kind may not be assessed as constitutionally groundless.

In this context it needs to be noted that after the legal regulation established in Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property had created the preconditions for the larger extent implementation of the rights of citizens so that their violated rights of ownership would be restored, under the procedure and conditions established by law, by returning the residential houses, parts thereof, and flats to them in kind, the legal regulation established in another law—the Law on the Amount, Sources, Terms and Procedure for the Payment of the Compensation for the Real Property Bought Out by the State, and on the Guarantees and Concessions Which are Provided For in the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (wording of 16 June 1998 with subsequent amendments and/or supplements)—created sufficient preconditions for the compensation for the tenants of the returned residential houses, parts thereof, and flats for inter alia possible increase in the value of the rented property due to the legally made improvements.

Thus, there is no ground to state that the legal regulation established in Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property created the preconditions for the violation of the constitutional principles of the protection of property that are consolidated in Article 23 of the Constitution.

8.2. The mere fact that the impugned legal regulation established in Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property regulated the criteria of the attribution of the reconstructed residential houses, parts thereof, and flats to the property bought out by the state differently from the manner of the regulation of such criteria in the previously effective Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” (wording of 18 June 1991 with subsequent amendments and/or supplements) may be considered neither as the setting of the owners’ legitimate expectations against those of the tenants, nor as the setting of the state’s duty to the owners against the state’s duty of the tenants who live in the houses, parts thereof, and flats subject to being returned (or already  returned).

In this context it needs to be noted that the impugned amendments to the legal regulation made by the legislator while heeding the Constitution, through which the conditions and procedure of the restoration of the rights of ownership were corrected, in themselves may not be assessed as uneven treatment of the subjects of the restoration of the rights of ownership (the owners) and of the tenants of the residential houses, parts thereof, and flats that are subject to being returned and as the granting of privileges to the subjects of the restoration of the rights of ownership (the owners).

Thus, the impugned legal regulation consolidated in Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property did not deny the constitutional principle of the equality of all persons before the law which is enshrined in Paragraph 1 of Article 29 of the Constitution.

8.3. As mentioned before, the petitioner doubts about the compliance of Item 2 (wording of 13 May 1999) of Article 15 of the Law also from the aspect that, after the impugned legal regulation had established a different criterion of the alteration of the main constructions of the residential house, part thereof or the flat (“more than 50 percent of the main constructions” instead of “more than 60 percent”), the constitutional principle of the equality of all persons before the law was violated due to the fact that the different conditions for the retrieving of the property in kind were created, one violated the legitimate expectation of the retrieving of the property in kind of those persons who “if the former legal regulation, under which the 60 percent criterion was applied, had been effective, would have fully and absolutely implemented that right of theirs”, and, in addition, one did not heed the stability of the legal regulation of the restitution relations and the requirements of legal certainty.

It needs to be noted that, in its ruling of 27 October 1998, the Constitutional Court recognised that the provision “more than 60 percent of the main constructions have been replaced” of Item 2 of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property was in conflict with Article 29 as well as Paragraphs 2 and 3 of Article 46 of the Constitution; in this ruling it was inter alia held that such legal regulation was unfair in respect to the citizens to whom the rights of ownership to houses had already been restored when one was taking account of another norm of the replacement of the main constructions, which had determined the fact that the residential houses had not been returned to them in kind, but had been bought out by the state; in addition, on the grounds of the impugned norm of the law, the owner could be given back his residential house in kind, from which only 40 percent of the main constructions had been left, and which, therefore, had virtually became a new object of the rights of ownership.

Thus, by means of the impugned legal regulation, consolidated in Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property which established a smaller percentage limit of the amount of the altered main constructions so that the residential houses, parts thereof, and flats could be bought out by the state and the said limit established by it was identical to the one established by the former legal regulation consolidated in the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”, one amended the provision which had been in conflict with the Constitution, and, while amending it, one took account of the Constitutional Court’s ruling of 27 October 1998. Such a correction of the legal regulation through which the Constitutional Court’s ruling is implemented properly may not be assessed as creating any preconditions for the violation of the Constitution, inter alia the constitutional principle of the protection of legitimate expectations.

  1. In view of the foregoing, the conclusion should be drawn that Item 2 (wording of 13 May 1999) of Article 15 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property was not in conflict with Article 23 and Paragraph 1 of Article 29 of the Constitution and with the constitutional principle of a state under the rule of law.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55, 56 and 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

  1. To recognise that Item 2 (wording of 13 May 1999, Official Gazette Valstybės žinios, 1999, No. 48-1522) of Article 15 of the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property was not in conflict with the Constitution of the Republic of Lithuania.
  2. To dismiss the part of the case subsequent to the petition of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into the compliance of Article 8 of the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (Official Gazette Valstybės žinios, 1997, No. 65-1558) with Article 23 and Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law.

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

Justices of the Constitutional Court:                                     Egidijus Bieliūnas

                                                                                                         Toma Birmontienė

                                                                                                         Pranas Kuconis

                                                                                                         Gediminas Mesonis

                                                                                                         Ramutė Ruškytė

                                                                                                         Egidijus Šileikis

                                                                                                         Algirdas Taminskas

                                                                                                         Romualdas Kęstutis Urbaitis