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On the compliance of certain norms of the Law on Privatisation of Apartments with the Constitution

Case No. 2/94

  THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

 R U L I N G

 On the compliance of the norms of the Republic of Lithuania’s Law on Privatisation of Apartments, establishing the privatisation of hostel rooms in the institutions of higher education, with the Constitution of the Republic of Lithuania

27 June 1994, Vilnius

The Constitutional Court of the Republic of Lithuania, composed from the Justices of the Constitutional Court: Algirdas Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Vladas Pavilonis, Pranas Vytautas Rasimavičius, Stasys Stačiokas, Teodora Staugaitienė, Stasys Šedbaras, and Juozas Žilys

The court reporter—Sigutė Brusovienė

Seimas member Julius Beinortas, Seimas member Gediminas Adolfas Paviržis, the advocate Kazimieras Motieka, and Algirdas Taminskas, acting as the representatives of the Seimas, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 16 June 1994, considered case No. 2/94 subsequent to the petition submitted to the Court by the Presidium of the Supreme Court of Lithuania requesting an investigation into whether the norms of the Law on Privatisation of Apartments, establishing the privatisation of hostel rooms of the institutions of higher education, are in compliance with the Constitution of the Republic of Lithuania

The Constitutional Court

has established:

1.

Vilnius 2nd District Court by the decision, adopted on 6 October 1993, complied with the suit brought to the Court by the plaintiffs G. Aleksonis and R. Aleksonienė against Vilnius University, the defendant, pertaining to the privatisation of a dwelling, and commissioned the University to sell for the plaintiffs their leasehold in Čiurlionio str. 1/2-15, Vilnius. The Court decision was passed pursuant to the Law on Privatisation of Apartments, establishing the procedure of sale and purchase of the state and public housing fund to the tenants leasing dwellings. In the first paragraph of Article 2 of the Law on Privatisation of Apartments, it is set forth that “the object of sale and purchase is residential houses belonging to the state and public housing fund, apartments in many-flat houses, apartments and rooms in hostels”. In the second paragraph of Article 3 of this Law it is specified that “rooms in hostels, which are allotted to the students, graduates and post-graduates of the institutions of secondary, vocational, further and higher education in the procedure prescribed by the Government, as well as rooms in the hostels belonging to the Union of the Blind and Weak-sighted of Lithuania, Society for the Deaf and Society of the Disabled of Lithuania, shall not be subject to privatisation” (the Republic of Lithuania’s Law on the Privatisation of Apartments, its wording of 15 July 1993, Official Gazette Valstybės žinios, 1993, No. 32-722).

The Panel of Civil Cases of the Supreme Court of Lithuania by the ruling of 18 November 1993 left the court decision unchanged.

The deputy Chairman of the Supreme Court appealed by protest in order of supervision to the Presidium of the Supreme Court requesting to nullify the court decision and the College ruling, to adopt a new decision and to dismiss a suit.

While considering this protest, the Presidium of the Supreme Court by its resolution suspended the investigation of the civil case and addressed the Constitutional Court with a petition requesting an investigation into whether the Law on Privatisation of Apartments, while applying it with respect to the hostel of Vilnius University, is in conformity with the third paragraph of Article 40 of the Constitution of the Republic of Lithuania.

2.

The Presidium of the Supreme Court bases the request on the following arguments.

In the third paragraph of Article 40 of the Constitution it is established that institutions of higher learning shall be granted autonomy. Under the statute of Vilnius University, this institution of higher education having autonomy exercises the right of inviolability of its territory and buildings. Only the Seimas of the Republic of Lithuania may change the boundaries of University territory and give over the buildings, taking the opinion of the University Council into consideration. The University Council and Senate, while resolving G. Aleksonis’ request to be permitted to privatise the dwelling, and expressing the opinion that the hostel in Čiurlionio str. 1/2 was not subject to privatisation, relied on said constitutional provision and Vilnius University Statute.

Vilnius 2nd District Court justifies its decision maintaining that the Law on Privatisation of Apartments is a special law, adopted later than the statute of Vilnius University. In the opinion of the Court, in case of the competition of laws, the norms of the Law on Privatisation of Apartments are applied. The Panel of Civil Cases consented to such conclusions made by the Court and stated that premises under dispute are not specified on the list of premises not subject to privatisation.

In the protest in order of supervision it is argued that the dispute had to be resolved in conformity with the statute of Vilnius University, which is a special norm for this University, whereas the Law on Privatisation of Apartments is a general one, applied in the privatisation of the state and public housing fund of all the Republic. Without the consent of University Council to privatise the premises under dispute, and without the adoption of the Seimas decision on this issue, the Court could not possibly comply with the suit.

3.

  1. Beinortas and G. A. Paviržis, representatives of the party concerned, explained in the Constitutional Court hearing that the Law on Privatisation of Apartments came into being while realising the idea that state-owned property, accumulated in the housing fund, should be transferred to the citizens. By virtue of this Law, 60 per cent of the residents of Lithuania under preferential conditions acquired the ownership right to residential premises leased by them from the state and public housing fund. Taking the status of the citizens of Lithuania residing in hostels into account, the Seimas adopted the amendment, permitting the privatisation of rooms in hostels as well. The representatives of the party concerned have maintained that the University, as a state institution of science and studies, must abide by the Law on Science and Studies, in Article 19 of which it is specified that institutions of science and studies shall use State property in the procedure established by means of laws of the Republic of Lithuania. The Law on Privatisation of Apartments prescribes the procedure of the disposition of this property irrespective of the jurisdictional dependence thereof. It is applied with respect to all the housing fund, formed by the contributions of the citizens of Lithuania, i.e. independently from the organisation to which it has been ascribed and which disposes of it. In the opinion of the representatives of the party concerned, the Law on Privatisation of Apartments is in conformity with the Constitution.

In the opinion of A. Taminskas, representative of the party concerned, the Law on Privatisation of Apartments does not contradict the third paragraph of Article 40 also due to the following reasons:

  1. The Law on Privatisation of Apartments was adopted later than the statute of Vilnius University. Therefore, in case of the competition of laws, a law which is enacted later shall be in force, because it expresses the latest resolve of the legislature. Furthermore, the Law on Privatisation of Apartments is special as it regulates only specific (not general) legal relations of privatisation ensuing from the management, use and disposal of property.
  2. The University manages, uses and disposes of property given over thereto not by the rights of ownership but property entrust. The rights of the state, as the only owner of the property, are implemented by the body of highest power of the state while adopting laws and substatutory acts, and, in this particular case, approving the statute of Vilnius University. Thus, the University must manage, use and dispose of state property (hostels among them) under the statute thereof, although without violation of laws of the Republic of Lithuania. The Law on Privatisation of Apartments is binding on all the subjects, the University among them, because the latter disposes of its property only in the procedure prescribed by law.
  3. Pursuant to the statute of Vilnius University, this institution of higher education, having autonomy, exercises the right of the inviolability of its territory and buildings, and only the Supreme Council (Seimas, at present) may change the boundaries of its territory and seize the buildings, taking the opinion of the University Council into account. On the assertion of the representative of the party concerned, the University’s autonomy does not include the right to inviolability of buildings and territory, because in Item 1. 2. 1. of the statute of Vilnius University these concepts are definitely separated. The opinion of the University Council with respect to the change of the territory and management of houses, may not restrict the Seimas’ implementation of the ownership rights of the state—the owner of the property. Only in the event that the issue concerning the transferral of state property, given over to the University, to other state enterprises, institutions, organisations or institutions of higher education is resolved, this provision should be binding. In the case of privatisation of dwellings (hostels among them), when the form of property is changed, the supreme state authority body expresses its will on the issue of disposal of state property by adopting a law thereof.
  4. The Law on Privatisation of Apartments has provided the possibility for the residents of Lithuania to acquire for private ownership under preferential conditions residential houses, apartments and rooms in hostels leased from the state ant public housing fund. The groundless deprivation of the right, possessed by the employees of institutions of higher education, to privatise the leased room in the employees’ hostels, would restrict the rights of the employees of the institutions of higher education and, actually, would legalise discrimination on the bases of his or her occupation or social status (Article 29, Constitution).
  5. Motieka, representative of the party concerned has explained that, according to the Constitution, the State does not regulate the issues concerning the management and disposal of property given over to the institution of higher education. Buildings, hostels of the institution of higher education among them, are within the scope of higher school autonomy. Autonomy is some sort of self-government, established by law, which must be observed. The University’s autonomy and the right to dispose of buildings is strictly defined by the statute of Vilnius University, under which the issues must be resolved only by the University Council and Senate. The State, having delegated to the University the right to dispose of property, may seize it only in the procedure prescribed by law and without violation of the statute of the University.

Institutions of science and studies use the property belonging to them in the procedure established by means of laws of the Republic of Lithuania. All laws are binding on the University, with the exception of those which determine special procedure of their implementation. While privatising the University hostels, the Statute of Vilnius University, which has the power of a law, must be applied, because the Law on Privatisation of Dwelling is applied to the whole state housing fund, with exception of autonomous institutions of higher education.

In the opinion of K. Motieka, representative of the party concerned, neither the statute of Vilnius University, affirmed by law, nor the Law on Privatisation of Apartments, contradict the Constitution. Both laws are in effect and have different clearly defined spheres of their validity, thus, the norms of University’s autonomy may not be regulated by the norms of the Law on Privatisation of Apartments.

The Constitutional Court

holds that:

  1. In the third paragraph of Article 40 it is established: “Institutions of higher learning shall be granted autonomy”.

Historically, the idea of the autonomy of the institution of higher learning came into being in the Middle Ages, when universities originated as establishments of science and studies. The autonomy meant that the university, to a certain extent, was independent from the state, striving to dissociate itself from the influence of political power, to create an independent system of regulation of internal activities within the institution of higher education. The purpose of such dissociation from the state authority institutions was to safeguard the freedom of science, research and teaching, to protect researchers and professors from political influence. The development of the academic autonomy has always been predetermined by the understanding that science and teaching may normally exist and induce progress only when they are free and independent. Thus appeared the principle of academic freedom, which expressed the striving to protect the researchers’ and teachers’ freedom of scientific thought and its expression from outward influence. Traditionally, the autonomy of the institution of higher learning is conceived as the right to independently determine and establish in the regulations or statute the organisational and governmental structure, relations with other partners, the order of research and studies, academic syllabus, the order of student enrolment, to resolve other related questions, to use the property given over by the state as well as newly acquired, to possess the territory and buildings as well as other property, allotted for the needs of research and studies, to have the guarantee of inviolability. For this purpose, the institution of higher learning is guaranteed the institutional autonomy, i.e. certain status, which means that there are certain spheres of activities, independent from the control of the executive power.

  1. The Magna Charta Universitatum (1988) declares that the foundation of cultural, scientific and technical advancement of mankind is being created in such centres of culture, cognition and research as true universities. In order the university could meet the needs of modern world, its research and scientific activity must be morally and intellectually independent of all political and ideological authority and economic power (The Underlying Principles, Article 1). All this presupposes a particular status of the University in the state and society.
  2. The spheres of activities of the institutions of higher learning, which are independent from the influence and control of governmental institutions and officials, are determined by the legislature. The latter thereby limits its own powers with respect to those spheres. In the states, where academic autonomy is established in the constitutions, it is the constitutional provision concerning the autonomy of the institution of higher education, which obligates the legislature to limit its own powers.

Upon the restoration of independent state of Lithuania, said provision was affirmed in the Provisional Basic Law. This meant the continuity of the tradition of the Lithuanian State to recognise the university’s academic autonomy. The principle of the autonomy of the institution of higher learning was also established in the 1992 Constitution of the Republic of Lithuania. It was particularised in the Law on Science and Studies as well as statutes of institutions of higher education, approved by the Parliament. These legal acts reveal the contents of academic freedom, set forth the independent from governmental control spheres of activities of the institutions of higher education, establish the contents of self-government, define the procedure of transferral of the state property to the institutions of higher learning and determine the guarantees of the use of said and another property of these institutions.

  1. In a democratic state under the rule of law, the power is vested in the Nation. The Nation shall exercise the supreme sovereign power vested in them either directly or through their democratically elected representatives. Implementing the state power, the legislature shall enact laws, which are primary acts of law, expressing the resolve of the legislature and having the supreme legal power. The subjects, to whom the autonomy is guaranteed by the state, also get into the scope of legal regulation. However, a newly adopted law may not narrow or impair those guarantees of self-government, which are established in the Constitution and particularised in the laws. The State must guarantee the inviolability of the right of independent scientific activity in the institutions of higher education, and ensure due material and financial conditions for said activity.

The right of the state to regulate external affairs of the institution of higher learning does not contradict the autonomy unless it impairs the freedom of research and teaching in the institution of higher education. Besides, the freedom of the institution of higher learning to adopt decisions, based on institutional autonomy, does not mean that these decisions may establish the priority of institutional interests over the rights of individual persons in the case that it would cause discrimination of these persons. The laws governing general public relations are valid with respect to the University as well as to any other institution of higher education.

  1. After the restoration of independent state of Lithuania and restitution of the constitutional institute of private ownership right, laws on privatisation of state and public property were adopted in Lithuania. Privatisation of Apartments was one of the main directions of the state’s social policy.

On 28 May 1991, the Republic of Lithuania’s Law on Privatisation of Apartments established the right to the residents of Lithuania to acquire for private ownership residential houses, apartments in many-flat houses and hostels, leased from the state and public housing fund. However, part of the residents of Lithuania, living in hostels, could not privatise residential premises that did not meet the requirements set for the dwelling units. The residents were generally provided with dwellings pursuant to employment relations, although persons leasing rooms in hostels on said basis, upon privatisation of residential premises found themselves in different legal status than persons who lived in houses or flats leased from the state and public housing fund.

The Law adopted in the Seimas on 15 July 1993 supplemented the Law on Privatisation of Apartments, entered hostel apartments on a list of objects subject to privatisation, excluding those allotted for the pupils, students, graduates and post-graduates of secondary, vocational, further and higher education, as well as rooms in hostels belonging to the Union of the Blind and Weak-sighted, Society for the Deaf and Society of the Disabled. Thus, the legislature expanded the list of persons entitled to the right to privatise the dwelling belonging to the state and public housing fund.

By this norm, the legislature determined that rooms in hostels, allotted to students and post-graduates, i.e. persons, who are related to the institution of higher education only by temporary research and learning relations and residing in hostels only for some time, shall not be subject to privatisation. Persons, who were settled in hostels of the institutions of higher education on the basis of permanent employment relations, acquired the right to privatise the apartment under lease. In this respect, said persons were given equal rights with the employees of the enterprises, establishments and organisations, also residing in hostels.

  1. In Articles 12 and 19 of the Law on Science and Studies it is set forth that the State shall transfer state property to the state institution of science and studies for possession and utilisation, upon the act of establishment or registration of said institution, in the procedure established by means of laws of the Republic of Lithuania. Under the Civil Code, the property transferred to the state institution is public property and remains the object of the state-owned property (Articles 97–98-1). However, the State may not violate the procedure of the disposition of property, which is established in legal acts in force. All statutes of the institutions of higher education that have been approved up to now, provide for the guarantee for the institution of higher education to the right of inviolability of the territory and buildings transferred by the state in the prescribed procedure. These provisions formulated by the legislature confirm the fact that the protection of the property belonging to universities and other institutions of higher learning should be given special attention by the State. While setting special rules for the protection of said property, the fact that the property given over for universities and other institutions of higher learning is the material basis for the implementation of freedom of science and studies, should be taken into consideration. The boundaries of the territories of the institutions of higher education, jurisdictional dependence of buildings may be changed or they may be seized only taking the opinion of University Council into account. The provision that the opinion of University Council should be regarded while seizing the buildings, is also established in the statute of Vilnius University (Item 1.2.2).

By adopting supplements to the Law on Privatisation of Apartments of 15 July 1993, an attempt was made to retain the uniform provision in the sphere of privatisation of property. However, this does not mean that an institution of higher education, its scientific and learning interests may be denied by the power of the legislature. Taking into consideration the fact that the scope of legislature’s powers shall be defined by the Constitution (Article 5), the legislature may not adopt decisions that would restrict the freedom of science, research and teaching, established in Article 42 of the Constitution, as well as autonomy granted to institutions of higher learning by Article 40 of the Constitution. Therefore, the Seimas, taking the constitutionally prescribed autonomous status of institutions of higher learning into account, provided for exception in the cases when privatisation of rooms in hostels might influence the scientific and learning interests, i.e. the Law prohibited the privatisation of hostels, allotted for students and post-graduates (also for residents, pursuant to amendments to the Law on Privatisation of Apartments, adopted on 19 May 1994).

Cases when the dwelling unit in a hostel of the institution of higher education is allotted for permanent employees of said institution, should be regarded differently. The legal status of these persons according to the laws on apartments is analogous with the status of persons residing in the hostels of other enterprises, establishments and organisations. The explanation that, taking the jurisdictional dependence of these hostels into consideration, different rules of privatisation of hostels should be applied, is not grounded and contradicts the principle of all persons’ equality before the law established in Article 29 of the Constitution. The privatisation of hostels belonging to the institutions of higher education, inhabited by permanent employees of these schools, does not violate the institution’s freedom in the sphere of science, research, teaching and self-government. The legislature, while establishing the possibility of privatising such hostels, resolved consistently the general issue, which does not belong to a specific sphere of autonomy of the institution of higher education.

It should be noted that, by way of implementing the provisions of the Law on Privatisation of Apartments, part of residential premises in hostels have already been privatised, on the consent of institutions of higher education, Vilnius University among them. While denying the right of employees, having permanent employment relations with the institution of higher learning, to privatise the dwelling in hostels, their civil capacity would be unlawfully limited.

If supplements of 15 July 1993 to the Law on Privatisation of Apartments were interpreted as a basis for seizing and giving over of University buildings, the fact that the legislature was aware of the opinion of the University Council, must not be disregarded. As the shorthand record of the Seimas sitting of 13 July 1993, in which amendments to said Law were considered, can prove, the opinion of the University Council, expressed in the resolution of 10 January 1992, has been submitted to the Seimas.

In view of the above-mentioned arguments, the Constitutional Court has drawn the conclusion that the norms of the Republic of Lithuania’s Law on Privatisation of Apartments, permitting the privatisation of rooms in the hostels of institutions of higher education, inhabited by permanent employees of the schools, are in conformity with the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania, as well as Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that the norms of the Law on Privatisation of Apartments, establishing the privatisation of rooms in hostels of the institutions of higher education, do not contradict the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:

Algirdas Gailiūnas                           Kęstutis Lapinskas                           Zigmas Levickis

Vladas Pavilonis                              Pranas Vytautas Rasimavičius         Stasys Stačiokas

Teodora Staugaitienė                       Stasys Šedbaras                               Juozas Žilys