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On the main directions of land reform

 THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

R U L I N G

On the compliance of the Resolution of the Seimas of the Republic of Lithuania “On the Main Directions of Land Reform” of 17 June 1993 with the Constitution of the Republic of Lithuania

 19 January 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, Teodora Staugaitienė, Stasys Šedbaras and Juozas Žilys

The court reporter—Rolanda Stimbirytė

Seimas member Leonas Milčius and the advocate Šarūnas Vilčinskas, acting as the representatives of a group of the members of the Seimas, the petitioner

Seimas members Mykolas Pronckus and Algirdas Taminskas, acting as 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 of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court, in its public court hearing of 14 January 1994 considered case No. 4/93 subsequent to the petition submitted to the Court by a group of the Seimas of the Republic of Lithuania members requesting an investigation into whether the Seimas Resolution “On the Main Directions of Land Reform” of 17 June 1993 is in compliance with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

The petitioner—a group of the Seimas members—request the Constitutional Court to investigate whether the Seimas Resolution “On the Main Directions of Land Reform” of 17 June 1993 (Official Gazette Valstybės žinios, 1993, No. 24-561) is in compliance with Articles 23, 46, 67 and 70 of the Constitution of the Republic of Lithuania according to the contents, form of norms as well as the procedure of its adoption, signing and promulgation. The petition is grounded on the following reasoning:

  1. It is established in Article 23 of the Constitution of the Republic of Lithuania that the rights of ownership shall be protected by law. The Seimas, ignoring this provision, by the Resolution “On the Main Directions of Land Reform” (Subitems 1 and 2 of Item 2 of “Directions”) established the duty for landowners to lease the land that was restored to them for agricultural enterprises and companies without setting forth a term. The Seimas limited the successor’s rights in Item 15 of “Directions” and in Item 23 established the duty for landowners to return the debts of former farms to the state. The state assumed the rights of creditor banks and did not provide for itself the duty to return the former landowners their money that had been deposited in the bank.

The petitioner also maintains that in Item 16 of “Directions” the Government is charged to support only those farms that meet certain criteria which contradicts Article 46 of the Constitution.

  1. In the opinion of the petitioner, the Seimas Resolution “On the Main Directions of Land Reform” is not in compliance with the Constitution according to its form, as it is established in Item 2 of Article 67 that the Seimas shall enact laws, and, as it can be seen from Item 2 of Paragraph 1 of Article 94 of the Constitution, the Seimas shall adopt resolutions concerning only the implementation of its laws. Thus, the Seimas has regulated land ownership relations not by law but by resolution.
  2. The petitioner also points out that this Seimas act was considered applying the legislative procedure, however, it was signed and promulgated not by the President but by the Chairman of the Seimas. In the opinion of the petitioner, the said act of the Seimas is comparable to a law according to the procedure of its adoption, the extent of regulation and the contents of norms. Various institutions of the Republic of Lithuania rely on it considering the petitions of former landowners. Due to this, the question of the enactment of said resolution arises.

In the process of preparation of the case for the hearing of the Constitutional Court the petitioner’s representatives, by way of responding to the statements of the representative of the party concerned, submitted the following additional arguments and reasoning:

  1. Theoretically, “Directions” may be called a programme, though, it is beyond dispute that this is an act of the Seimas, and every Seimas act must be in conformity with the Constitution.
  2. The statement of the representative of the party concerned that the impugned act of the Seimas does not contradict Article 46 of the Constitution revises the Constitution itself.
  3. The citizens requesting the restoration of their right to the deprived property are owners of that property, because the state does not have legal basis to be the owner of the property that the citizens were deprived of during the occupation. Therefore, representatives of the party concerned are not right in interpreting landowners only as claimants to owners.

The petitioner’s representatives in the court hearing emphasised that constitutional rights of people are especially restricted by the provisions that establish compulsory lease of the land to be restored and limit the division of former land domain among several persons recovering the actual land property. Due to the fact that “The Main Directions of Land Reform” changed the conditions of recovering the actual land property, i.e. formulated new limitations, the process of land reform has slowed down because the institutions considered applications of former landowners in compliance with “Directions”.

The petitioner’s representatives, on the basis of the aforesaid reasoning as well as opinions of the specialists they had invited, requested the Constitutional Court to recognise that the Seimas Resolution “On the Main Directions of Land Reform” contradicts the Constitution of the Republic of Lithuania according to the contents, form, procedure of adoption, signing and promulgation.

Seimas member M. Pronckus, representative of the party concerned, stated that claims made by a group of the Seimas members in the petition submitted to the Constitutional Court requesting an investigation into whether the Seimas Resolution “On the Main Directions of Land Reform” is in compliance with the Constitution, are groundless because of the following reasoning:

  1. The Seimas, while adopting the resolution of 17 June 1993, did not confirm but assented to “The Main Directions of Land Reform” drafted by the Government of the Republic of Lithuania, which is “not a law, but only a document defining certain strategy of the implementation of land reform. State institutions do not follow ‘Directions’ in dealing with property issues”. This resolution of the Seimas does not contradict the Constitution, because only citizens by referendum and the Seimas have the right to determine the strategy of the development of the Nation and these powers of theirs may not be limited by anybody.

The representative of the party concerned explained that the first Laws of the Republic of Lithuania “On the Reinstatement of the 12 May 1938 Constitution” and “On the Provisional Basic Law of the Republic of Lithuania”, adopted on 11 March 1991, recognised that the whole land would be the exclusive property of the state. This was also confirmed by Law on Land Reform and the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” that were adopted later. For example, it is established in Article 3 of the Law on Land Reform that the objects of land reform shall be the Land reform fund of the Republic of Lithuania, as well as in Article 12 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” it is set forth that, land required for State needs as well as other land shall be purchased from persons defined in Article 2 of this law. This means that, the State leaves at its disposal all the land it needs reimbursing the former owners and their successors in the manner prescribed by law. Therefore, in the opinion of the party concerned, the petitioner groundlessly identifies claimants to landowners with the owners themselves.

Furthermore, the representative of the party concerned indicated that, in both said laws, it is written that land reform shall be implemented as well as the right of ownership to land shall be restored according to the land planning projects, i.e. the State freely disposes of land according to the confirmed principles of land planning projects.

The representative of the party concerned on the basis of the arguments he had submitted, maintained that, upon recognition of the petitioner’s reproaches, it should be stated that said laws, along with the Provisional Basic Law of the Republic of Lithuania, contradict the Constitution of the Republic of Lithuania.

  1. Conforming to Article 46 of the Constitution which establishes that: “The State shall regulate economic activity so that it serves the general welfare of the Nation”, the representative of the party concerned maintained that this is just the purpose of “The Main Directions of Land Reform”.

The representatives of the party concerned emphasised in the court hearing that by said resolution the Seimas only approved of the strategy of the implementation of land reform. The approval does not mean, however, that “The Main Directions of Land Reform” is a binding substatutory act of the State. By adopting “Directions”, an attempt was made to establish “a certain order of sequence in the matters of land reform”. The said resolution of the Seimas is only a suggestion for the Government and obligation for the Seimas Committee on Agriculture to draft laws and it does not contain the contents of norms of the law, and landowners are not charged to lease the land. State institutions, while dealing with the petitions of the citizens, did not follow “Directions”, and land reform was not suspended.

Conforming to the above-mentioned arguments as well as opinions of the specialists, the representatives of the party concerned requested the Constitutional Court to recognise that the Seimas Resolution “On the Main Directions of Land Reform” is in compliance with the Constitution of the Republic of Lithuania.

The Constitutional Court

holds that:

  1. On the compliance of the Seimas Resolution “On the Main Directions of Land Reform” of 17 June 1993, according to its form, with the Constitution of the Republic of Lithuania .

Pursuant to Article 102 of the Constitution of the Republic of Lithuania and Item 1 of Paragraph 2 of Article 63 of the Law on the Constitutional Court, the Constitutional Court shall examine the compliance of laws and other acts of the Seimas with the Constitution of the Republic of Lithuania.

It is set forth in Item 2 of Article 67 of the Constitution of the Republic of Lithuania that the Seimas shall enact laws. As it can be seen from the second paragraph of Article 70 of the Constitution, the Seimas may adopt other acts as well. The impugned act has got the form of a law and not Seimas resolution. While classifying state legal acts from the point of view of the legal traditions in Lithuania that served as a basis for drafting the existing Constitution of the Republic of Lithuania, and co-ordinating this classification with the constitutional separation of powers on which the system of sources of law in modern democratic states is grounded to a certain degree, state legal acts are divided into laws (Constitution, Constitutional laws, laws), substatutory acts (other acts of the Seimas, regulations, individual substatutory acts) and court decisions.

In order to investigate this case, it is essential to establish the dependence of the form of laws and other acts of the Seimas upon their contents, thus, the grouping of legal acts into normative acts and individual acts is especially significant. Normative acts are considered those that contain universally binding rules of general nature. Here, what is most significant, is not the particular wording of a certain rule, but the fact that the text should provide understanding beyond doubt that the instruction is given to certain subjects under certain conditions to act in appropriate way.

A law is an original legal act adopted in the procedure prescribed by the Constitution of the Republic of Lithuania and the Statute of the Seimas which expresses the legislature’s will and which has the supreme legal power. Therefore, a law can be amended or its validity can be nullified only upon the adoption of another law or recognition of it as contradictory to the Constitution by the Constitutional Court. All other legal acts must be adopted conforming to laws and may not contradict them, i.e. they must be substatutory ones. A substatutory legal act is a legal act adopted by a competent body on the basis of and according to the procedure prescribed by law. A substatutory act is usually an act of administration. The norms of a law are realised by it, however, such an act may not replace the law itself and create new legal rules of general nature that in their power would compete with the norms of the law. It is an act of application of the norms of a law irrespective of the fact whether this act is of one-off (ad hoc) or permanent validity.

These peculiarities of a substatutory act shall also be indispensable for other acts adopted by the Seimas specified in the second paragraph of Article 70 of the Constitution. Substatutory acts adopted by the Seimas may not contradict the Constitution and laws enacted by the Seimas, the more so, they may not change the norms of laws and their contents.

The representative of the party concerned maintained that the Seimas Resolution “On the Main Directions of Land Reform” is not a legal act but a programme, therefore, in his opinion, requirements and evaluations that are set for a law or a substatutory act are not applicable for said act. In jurisprudence and in legislative practice of other states, the so-called programme laws are well-known. The form and possible contents of such laws are established in constitutions. Programme laws set the goals of economic and social activities for the state but do not establish legal rules regulating the conduct of the subjects of legal relations. The Constitution of the Republic of Lithuania does not provide for programme laws as a special form of laws, therefore, all laws are evaluated as original legal acts of factual validity that are binding on all subjects of legal relations.

The legal analysis of the text of the impugned resolution of the Seimas does not confirm the statement of the representative of the party concerned that this is only a programme (strategic) document. Even if it were such according to its contents, it would have to possess the form of the law. Said resolution, of which “The Main Directions of Land Reform” is an inseparable integral part, established general norms and also charged the Seimas Committee on Agriculture and indirectly the Government to submit concrete draft laws. “The Main Directions of Land Reform” consists of the following chapters: I. Land acquisition into private ownership. II. Providing with conditions for effective farming. III. Repayment of claimants to land possessed by the right of ownership. Thus, as it can be seen from the very titles of the aforementioned chapters, the rights of ownership to land are regulated here. At the same time, it is set forth in the second paragraph of Article 23 of the Constitution that the rights of ownership shall be protected by law, and in the third paragraph of this Article it is prescribed that property may only be seized for the needs of society according to the procedure established by law and must be adequately compensated for. This means that the legislature may regulate subjective rights of landowners and participants of other property legal relations only by determining the contents of these rights. In the process of implementation of land reform in Lithuania, property relations are regulated by special laws regulating the principles and procedure of land reform. At the time when the impugned resolution of the Seimas was adopted, 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” of 18 June 1991 (Official Gazette Valstybės žinios, 1991, No. 21-545), along with its amendments and supplements (Official Gazette Valstybės žinios, 1992, Nos. 3-40, 7-155, 11-278, 15-405; Official Gazette Valstybės žinios, 1993, No. 5-83), which was in force until 12 January 1993, as well as the Republic of Lithuania’s Law on Land Reform of 25 July 1991 (Official Gazette Valstybės žinios, 1991, No. 24-635), along with its amendments and supplements (Official Gazette Valstybės žinios, 1992, Nos. 1-11, 3-45, 15-404), which was in force until 7 May 1992, established the conditions and procedure of the restoration of the rights of ownership to land and its new acquisition while implementing land reform.

The right of the Seimas to regulate property relations is beyond doubt because the Seimas is the only legislature empowered by the Nation. Property relations may be regulated only by law and no any other act of the Seimas. Meanwhile, in “The Main Directions of Land Reform” some statements are formulated that, according to their meaning, are new legal rules changing in essence the present legal situation. For instance, it is established in Subitems 1 and 2 of Item 2 of “The Main Directions of Land Reform” that:

“In areas ascribed to land that shall be purchased by the state, the actual land property may be recovered in:

1) the land leased by specialised pure strain stock-breeding farms and seed-growing farms as well as breeding-grounds, also in the land occupied by orchards, berry-fields, nursery-gardens of specialised agricultural companies, also in plots of vegetable gardens that are under irrigation system and those adhering to cattle-breeding complexes—for persons who, upon restoration of the rights of ownership to land, make private land lease contracts with above-mentioned agricultural enterprises until their reorganisation or termination of activities;

2) farming lands adjoining to cattle-breeding farms, entitling the landowner to the right of independent farming only upon the termination of farming activities by above-mentioned agricultural companies or other owners of cattle-breeding farms. Meanwhile, said users of land shall make contracts of private land lease with the landowners.

In these plots the land rent payment is established of the same amount as that of state land lease.

The restoration of the right of ownership to land in said plots of land that shall be purchased by the state, however, does not entitle the landowner to the right of unilateral breach of land lease contract so long as present land users may function”.

The part of the above-quoted text is not a programme. A legal norm of law nature is formulated in it (conditions of the restitution of actual land, the amount of land rent payment, etc.). Besides, by this norm it is established another provision different from one which is set forth in Article 12 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” that was in force at that time, under which existing real property shall be purchased by the state. Thereby, the contents of possible legal relations regulated by law is changed.

Item 15 of “The Main Directions of Land Reform” prescribes: “The distribution of former land estates among claimants wishing to recover their actual land property is limited by law and by means of regulations (except for the cases when applicants reside in rural areas or when everyone is allotted not less than 20 hectares)”. Such legal provision failed to be present in former valid laws.

Item 23 of “The Main Directions of Land Reform” provides: “For prospective claimants to the land possessed by the right of ownership, upon their submission of declaration about the debts of the former farm ( until 1940 ) to the Land Bank, mortgage of land or other debts to the state, the plot of land which is subject to restitution or purchase by the state shall be equivalently reduced. In the event of failing to submit such a declaration, but upon establishing said debts throughout 10 years by state institutions, they shall be ascribed for the landowner according to the equivalent sum of money for grain and shall be paid for the state by instalments”. In a State under the rule of law, disputes arising from transactions are resolved by civil proceedings. In this case the State as a party of civil dispute should not unilaterally settle the dispute in its own favour by the establishment of imperative norm. The presence of such an imperative norm in the impugned resolution also confirms that this resolution is not a programme but a legal act equivalent to law.

Item 16 of “The Main Directions of Land Reform” contains the following imperative norm ascribed for the Government: “The Government by preferential credits for capital construction shall support only those farms that according to the size of land or special extent of production meet the requirements set for the farmer’s holding or agricultural company”. It is evident from the Seimas competence established in Article 67 of the Constitution, as well as from the principle of the separation of powers determined in Article 5 of the Constitution, that the Seimas may not give the Government any direct normative instructions otherwise than in the procedure of legislation.

The Seimas, by its decision having adopted new legal norms regulating land ownership relations and having amended the present legal norms, violated the constitutional principle of supremacy of laws over substatutory legal acts as well as the provisions of the Constitution specifying that property relations and the contents of subjective rights of the participants of these relations shall be regulated by law and not by substatutory act. The Seimas, while resolving the issues that are the subject matter of legal regulation, may not choose the form of resolution, because resolution is a legal act of lower rank.

The Constitutional Court, stating the viciousness of the form of the Seimas resolution, emphasises that the provisions of the resolution regulate the contents of private property rights. The right to private property is one of the main human rights established in the Constitution of the Republic of Lithuania. Taking the significance of this fundamental right into consideration, it is established in the Constitution that the rights of ownership shall be protected by law. Legal regulation is of paramount importance for the protection of private rights of ownership, because in the legislative process, along with the Seimas, the President of the Republic takes part as well: he shall sign and promulgate the laws enacted by the Seimas, also have a relative veto power, i.e. the right to refer back to the Seimas a law enacted by it for reconsideration. No doubt, these rights vested in the President of the Republic should be evaluated as an additional guarantee of the constitutionality of the laws enacted by the Seimas.

The Resolution of the Seimas of the Republic of Lithuania “On the Main Directions of Land Reform” is legally vicious also because of the fact that the provisions formulated in it in many ways competed with the laws that were in force at that time, formed the state of legal uncertainty for the subjects of legal relations, shattered the public’s reliance on law and all this does not conform to the striving for a state under the rule of law, promulgated in the preamble to the Constitution.

Conforming to the aforementioned reasoning, the Constitutional Court draws the conclusion that the Seimas act of such normative contents should not have been adopted in the form of resolution, therefore, the Seimas Resolution “On the Main Directions of Land Reform” contradicts Article 23 and Item 2 of Article 67 of the Constitution of the Republic of Lithuania according to its form.

Since the Seimas Resolution “On the Main Directions of Land Reform” according to its form is not in compliance with the procedure of the regulation of property relations established in the Constitution, this act may not be deemed legitimate. The compliance of concrete statements of the resolution which is not legitimate according to its form with the Constitution, may not be evaluated.

  1. On the compliance of the Seimas Resolution “On the Main Directions of Land Reform” of 17 June 1993, with the Constitution of the Republic of Lithuania according to the procedure of its adoption, signing and promulgation.

The Seimas Resolution “On the Main Directions of Land Reform” was adopted in the Seimas plenary sitting by the majority vote of the Seimas members participating in the sitting. This conforms to the second paragraph of Article 69 of the Constitution of the Republic of Lithuania, in which it is established that laws shall be deemed adopted if the majority of the Seimas members participating in the sitting vote in favour thereof. This is a general principle of the adoption of the Seimas resolutions, which is also applied to other Seimas acts, except constitutional acts (the Constitutional Court’s Ruling “On the Compliance of the Resolution of the Seimas of the Republic of Lithuania ‘On the Dissolution of the Vilnius City Council and Some Measures Necessary to Improve the Activities in Municipalities’ of 15 April 1993 with the Constitution of the Republic of Lithuania”).

While adopting the Resolution “On the Main Directions of Land Reform” of normative nature, the Seimas chose inadequate for this case form of legal regulation, however, it did not violate the procedure of adoption of resolutions prescribed in the Constitution of the Republic of Lithuania.

The Seimas Resolution “On the Main Directions of Land Reform” was signed and promulgated by the Speaker of the Seimas. According to the form of legal act the Seimas has chosen, this is in conformity with the provision “Other acts adopted by the Seimas and the Statute of the Seimas shall be signed by the Speaker of the Seimas” of the second paragraph of Article 70 of the Constitution of the Republic of Lithuania.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55, 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 Seimas Resolution “On the Main Directions of Land Reform” of 17 June 1993, according to its form, contradicts Article 23 and Item 2 of Article 67 of the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:

Algirdas Gailiūnas                           Kęstutis Lapinskas                           Zigmas Levickis

Vladas Pavilonis                              Pranas Vytautas Rasimavičius         Teodora Staugaitienė

Stasys Šedbaras                               Juozas Žilys