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On persons entitled to the restoration of the rights of ownership

Case No. 4/95

 THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

 R U L I N G

 On the compliance of Item 2 of Paragraph 1 of Article 2 of 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” with the Constitution of the Republic of Lithuania

 1 June 1995, Vilnius

The Constitutional Court of the Republic of Lithuania, composed from 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—Rolanda Stimbirytė

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 of the Republic of Lithuania, in its public hearing, on 30 May 1995, considered case No. 4/95 subsequent to the petition submitted to the Constitutional Court by the Kaunas City Local Court requesting an investigation into whether Item 2 of Paragraph 1 of Article 2 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” is in compliance with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 20 July 1994, the Kaunas City Local Court, the petitioner, considered a civil case upon the complaint lodged by I. Čeplevičiūtė pertaining to the annulment of the Decree of the Kaunas City Board in which it is refused to restore I. Čeplevičiūtė’s right of ownership to the existing real property.

By its ruling, the Kaunas City Local Court suspended the court proceedings of the civil case and requests the Constitutional Court to investigate the compliance of Item 2 of Paragraph 1 of Article 2 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” with Article 23 of the Constitution.

The Court has indicated that I. Čeplevičiūtė is the daughter of an adopted daughter of the former owner. Children of adopted children are not specified among persons listed in Article 2 of the said Law, therefore, the legal status of the petitioner, as the daughter of an adopted child (adopted daughter), is unclear. In the opinion of the petitioner, “the Court is hardly authorised to extend the list of persons specified in Article 2 of the said Law, moreover, to apply norms of Article 573 of the Civil Code”. The Court put into question the issue if the failure to define in Article 2 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” rights of children of adopted children is not in violation with the constitutional rights of ownership of the said persons.

Thus, the petitioner is in essence requesting an investigation into whether Item 2 of Paragraph 1 of Article 2 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” (Official Gazette Valstybės žinios, 1991, No. 21-545; 1992, No. 3-40) is in compliance with Article 23 of the Constitution.

In its request the petitioner is also requesting an investigation into whether in the course of resolving disputes, which arise on the basis of the said Law, by a court, the norms of the Civil Code may be applied and whether this is in compliance with constitutional provisions.

Pursuant to this request the Constitutional Court on 16 March 1995 adopted a decision to refuse to investigate it as it is an obligation of the institution applying the law to resolve which law is to be applied in a concrete case in the event of competition of the laws.

II

During the preliminary investigation of the case Chairman of the Seimas Law and State Committee Pranciškus Vitkevičius in his written reply to the inquiry of the Constitutional Court addressed to the person concerned has explained that the mutual relations and obligations of adopted children and foster parents are prescribed by the norms of the Matrimonial and Family Code, in which it is established that they shall be given rights and obligations as lineal relatives. Therefore, in his opinion, Article 2 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” is in compliance with the Constitution.

The Constitutional Court

holds that:

Upon restoration of the independent State of Lithuania and restitution of the institute of the right to private ownership back to the legal system of the state the continuity of property rights that had been possessed before nationalisation was recognised. In the legal acts, regulating restoration of the right to the existing real property, a provision was promulgated to implement a limited restitution, i.e., to protect the property rights that had been violated in the conditions and procedure prescribed by law. Thus, the changes that took place in the sphere of social relations during the 50 years of occupation were taken into consideration. Therefore, rights of ownership of the former owners that had been unlawfully terminated could not be protected on the basis of the norms of the Civil Code in force at that time. On 18 June 1991, the special Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” was adopted.

In Item 2 of Paragraph 1 of Article 2 of this Law it is established that upon the death of a former owner the right of ownership to his portion of existing real property is restored to his children (adopted children), parents (foster-parents) and his spouse. On 14 January 1992 the said item of the Law was supplemented with a provision establishing that upon the death of child of the former owner in the event he is no longer living the right of ownership to his portion of the existing real property is restored to his spouse and children. In the norm with which the Law was supplemented no separate mention was made of adopted children of the former owner upon his death.

In Article 1 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 established that the Law shall legislate the procedures and conditions of the restoration of the right of ownership to the citizens of the Republic of Lithuania to the property which was nationalised or otherwise unlawfully made public. Thus, this Law provided for the system of protection of the rights of ownership different from that established in the Civil Code; norms of the succession law established in the Code are not applied to this type of legal relation either.

However, the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” did not change the general legal situation, established in the Matrimonial and Family Code, of the subjects participating in the legal relations of the restoration of the rights of ownership—the spouse, children, adopted children, parents, foster parents etc.

Paragraph 2 of Article 120 of this Code stipulates: “By a court’s decision to approve adoption, the adoptive parents as well as their relatives and the adopted children as well as their offspring shall be given personal and property rights and obligations as lineal relatives”. It is to be noted that regulation of the legal status of adopted child is in essence analogous to regulations which were established in the standard acts which were in effect previously.

It means that the contents of legal family relation—that of adopted children to foster parents as well as their offspring and other relatives—is the same as that of lineal relatives.

Therefore, provision “upon the death of the former owner” of Item 2 of Paragraph 1 of Article 2 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” is applicable to an adopted child as well since the legislature has not specifically established in this provision that the legal status of an adopted child prescribed by the Family and Matrimonial Code is being subjected to a change. Such an interpretation of the impugned legal norm is grounded on general principles of law as well as legal traditions. The terms as “children (adopted)” and “parents (foster-parents)” which are used in the concept of law and legislation mean that the concept of “children” includes the concept of “adopted children” and the concept of “parents” includes the concept of “foster parents”.

The provision of Item 2 of Paragraph 1 of Article 2 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property” that “upon the death of the former owner the right of ownership to his portion of existing real property is restored to his spouse and children” in the event when the rights of ownership of the adopted child of the former owner and those of children (adopted children) of the latter are restored to the existing real property they are protected in the same manner as the rights of a child of the former owner and his children (adopted children), therefore, it does not contradict 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 provision of Item 2 of Paragraph 1 of Article 2 of 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” does 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