24 24 Case No 12/93 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA R U L I N G On the compliance of the parts of item 3 of the Law of the Republic of Lithuania "On Appending and Amending the La

Parts 5 and 6 of Article 4 of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991 have been amended, as well as items 14, 15, 16, 17, 18 and 19,

Article 12

of said Law has been appended by items 10, 11, 12, 13, 14 and 15, with the Constitution of the Republic of Lithuania 27 May 1994, Vilnius The Constitutional Court of the Republic of Lithuania, composed from the Justices of the Constitutional Court Algirdas Gailiūnas, Kęstutis Lapinskas, Zigmas Levickis, Pranas Vytautas Rasimavičius, Stasys Stačiokas, Teodora Staugaitienė, Stasys Šedbaras and Juozas Žilys, the secretary of the hearing Sigutė Brusovienė, the petitioner - Andrius Kubilius and Zenonas Juknevičius, representatives of a group of the Seimas members, the party concerned - Seimas member Mykolas Pronckus and Algirdas Taminskas, representatives of the Seimas, pursuant to Part 1, Article 102 of the Constitution of the Republic of Lithuania and Part 1, Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing of 27 April - 3 May 1994 conducted the investigation of Case No 12/93 subsequent to the petition submitted to the Court by a group of the Seimas of the Republic of Lithuania members requesting to investigate the compliance of the parts of item 3 of the Law of the Republic of Lithuania "On Appending and Amending the Law of the Republic of Lithuania "On the Procedure and Conditions of the restoration of the Rights of Ownership to the Existing Real Property" ", adopted 15 July 1993,

Parts 5 and 6 of Article 4 of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991 have been amended, as well as items 14, 15, 16, 17, 18 and 19,

Article 12

of said Law has been appended by items 10, 11, 12, 13, 14 and 15, with the Constitution of the Republic of Lithuania. The Constitutional Court has established: The petitioner - a group of the Seimas members - requests the Constitutional Court to investigate if the parts of item 3 of the Law of the Republic of Lithuania "On Appending and Amending the Law of the Republic of Lithuania "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" " (hereinafter this law shall be referred to as "the Law in dispute"), adopted 15 July 1993,

Parts 5 and 6 of Article 4 of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991 have been amended, as well as items 14, 15, 16, 17, 18 and 19,

Article 12

of said Law has been appended by items 10, 11, 12, 13, 14 and 15 (Official Gazette "Valstybės Žinios", 1993, No 32-275), do not contradict the Constitution of the Republic of Lithuania. In the request, the petitioner specifies that, all the conditions established in parts 5 and 6 of Article 4 which has been amended by the Law in dispute, may be applied only upon the restoration of land so that it would not remain uncultivated. Besides, in this Article claimants to land are categorized according to the type of activities (whether they are members of agricultural company or not), and this is related to the right to the restoration of property, even though, under Article 29 of the Constitution, all people shall be equal before the law. The petitioner maintains that the Seimas by supplements to Article 12, which were made by the Law in dispute, "expanded the scope of the land not to be returned, basing agriculture on collective property, even though in Article 46 of the Constitution it is established that Lithuania's economy shall be based on the right to private ownership". The petitioner's representatives have explained that by the Act of 11 March 1990 the Independent State of Lithuania has been restored. In this Act it is declared that the territory of Lithuania is integral and indivisible, and the constitution of any other State has no jurisdiction within it. In the Law "On the Reinstatement of the 12 May 1938 Constitution of Lithuania", the Supreme Council of the Republic of Lithuania stated, that the May 12, 1938 Constitution of Lithuania had been suspended illegally when on June 15, 1940 the Soviet Union committed aggression against the independent state of Lithuania and ,thereby, terminated the validity of the 20 April 1978 Constitution of the Lithuanian SSR (Basic Law), the 7 October 1977 Constitution of the USSR (Basic Law), as well as the fundamentals of the legislation of the USSR and Union Republics, also other USSR legislation on the territory of the Republic of Lithuania. The laws which had been adopted on their basis lost their validity, Article 4 of the Land Code of the Lithuanian SSR among them, in which it is declared that: "In compliance with the Constitution of the USSR and the Constitution of the Lithuanian SSR, land is state property - common property of all the Soviet people". In the Law "On the Reinstatement of the 12 May 1938 Constitution of Lithuania" it was determined that the reinstatement of the 12 May 1938 Constitution of Lithuania does not in itself re-establish other laws in effect in the Republic of Lithuania prior to 15 June

1. This provision is significant because it has taken into consideration the changes that took place, and the necessity on the basis of these laws to regulate property relations by laws. Former property relations are not denied. Their undeniability was established in the provision of the Supreme Council adopted on 15 November 1990: "To determine that citizens of Lithuania are entitled to the right to restore their existing property in kind in the scope and procedure prescribed by laws, and in case when there is no such possibility, to receive compensation". Afterwards, in the first part of Article 1 of the 18 June 1991 Law "On the Procedure and Conditions of the Rights of Ownership to the Existing Real Property" nationalization of property was compared to its unlawful socialization, and it was specified that property was not the ownership of State, public or other organizations, but it was only at their disposal. Therefore, the essence of the contents of the first part of Article 45 of the Provisional Basic Law was the establishment of sovereign powers of Independent State of Lithuania on the whole territory of the State and not the acceptance of the 21 June 1940 Declaration of the People's Seimas on the Nationalization of Land. In the opinion of the petitioner's representatives, persons enumerated in the first part of Article 1 of the 18 June 1991 Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" are still the owners, only their right of property ownership has been infringed upon, i. e. they have been deprived of the opportunity to use and manage the property. Therefore, their property may be seized only in conformity with the requirements set forth in Article 23 of the Constitution. In the opinion of the representatives of the petitioner , Parts 5 and 6 of Article 4 of the Law in dispute contradict Article 23 of the Constitution, as they provide for the seizure of property i. e. factual irretrievability in case when there is no public interest. The legislator established formal obstacles which can be overcome only by persons who have been given permission by district Board or had had an exclusive social position in the past. The representatives of the petitioner have also explained, that the obligatory land lease restricts the owner's rights. This amendment to the Law in dispute also fails to comply with the provision of Article 46 of the Constitution that Lithuania's economy shall be based on the right to private ownership, freedom of individual economic activity, and initiative. Lease of land grants privileges to the persons specified in the fifth part of Article 4 of the Law in dispute on the basis of their social position, and this contradicts Article 23 and 29 of the Constitution. The petitioner's representatives maintain that the supplements to Article 12 - items 10, 11, 12, 13, 14, and 15 - adopted by the Law in dispute contradict the first and fourth parts of Article 46 of the Constitution, because they establish monopoly in agriculture (support state farms) and fail to protect freedom of fair competition. The representatives of the petitioner have submitted the following explanations concerning Article 12: `
2. The provision of item 10, Article 12 is not in compliance with Article 46 of the Constitution, as it gives preference to companies, i. e. collective economic activity and makes the owner, to whom the rights of ownership to land have not been restored yet, lease it for agricultural enterprises without setting any terms. The needs of the company are identified with the needs of society, therefore, in this sense, the provision of item 10, Article 12 of the Law in dispute fails to comply with Article 23 of the Constitution as well.
3. By item 11 of Article 12, an attempt is made to base Lithuania's economy on the right to collective (state) ownership, as land areas specified in it are used for the needs of companies and forest districts but not for the interests of the whole state . By said item, the preference is given to horses, and not to the needs of society.
4. According to item 12 of Article 12, the priority goes not to the society, but to a specific enterprise. The profit gained by a man or a specific enterprise is not the need of society in the context of Article 23 of the Constitution.
5. The provision of item 13, Article 12 that the land shall be bought out for the usage of rural residents, means common, collective and not private economic activity. In rural settlements, land for the construction of residential houses is bought out even without having construction projects, the procedure of their confirmation and the client.
6. Item 14 of Article 12 itself does not need any motivation, because rivers and lakes may be, without any criteria, ascribed by the Government to water bodies not subject to privatization. Besides, it is not the restoration of the rights of ownership which is regulated by this item, but privatization. Generally, rivers and lakes must be state property, however, it is not the Government who should resolve this issue.
7. By item 15 of Article 12, at the expense of the owner, the boundaries of the land not liable to be returned are extended, and it is going to be granted for farmers- tenants, and not to satisfy the needs of the society. This fact contradicts Article 23 of the Constitution, because the land is bought out not for the public benefit but for the advantage of a specific person. The representatives of the party concerned have denied the validity of the petitioner's request. They have explained that from the very restoration of the Independent Sate of Lithuania, i. e. after the Act of 11 March 1990, all1 laws and resolutions adopted by the Supreme Council of Lithuania have been declaring that the entire land is state property. For instance, in Article 4 of the 11 March 1990 Law "On the Reinstatement of the 12 May 1938 Constitution of Lithuania" it is established that the reinstatement of said Constitution did not in itself re-establish other laws in effect in the Republic of Lithuania prior to 15 June 1940". The representative of the party concerned has stated that by the 11 March 1990 Law of the Republic of Lithuania "On the Provisional Basic Law of the Republic of Lithuania" the validity of the 12 May 1938 Constitution of Lithuania was suspended, the Provisional Basic Law of the Republic of Lithuania was ratified, and it was established that, on the territory of the Republic of Lithuania, previous laws and other legal acts of Lithuania would be further in effect, providing they did not contradict the Provisional Basic Law of the Republic of Lithuania. In the first part of Article 45 of the Provisional Basic Law it is determined that the land, its mineral resources, inland and territorial waters, flora and fauna, and other natural resources shall be the national wealth and exclusive property of the Republic of Lithuania, whereas in the first part of Article 46 it is specified that property of the Republic of Lithuania that is state property may, with or without compensation, become private property of citizens or their groups according to the procedures established by law. In the opinion of the representatives of the party concerned, provisions of the Provisional Basic Law in respect of the competence of the Supreme Council to regulate property relations in the Republic by legislative means, set forth in item 4 of the second part of Article 78 of said Law, establishes the state's right of ownership to land. However, it may not be stated categorically that the owner of the nationalized property is state. If property were its ownership, it would have been sufficient to adopt a law concerning its transferral to persons. However, the act of unconditional restitution has not been adopted either, therefore, it would not be proper to state that the rights of former owners have been violated. On 18 June 1991, upon the adoption of the Law "On the Procedure and Conditions of the Rights of Ownership to the Existing Real Property", restrictions were imposed. Besides, there are two groups of such persons:

Parts 5 and 6 of Article 4 of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991 have been amended, with the Constitution of the Republic of Lithuania. In Parts 5 and 6 of Article 4 entitled "Conditions and Procedures for the Restoration of the Right of Ownership to Land Situated in Rural Areas" of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" , adopted 18 June 1991, which has been amended by the Law in dispute, it is established: "The right of ownership to land used for agricultural purposes shall be restored to: persons establishing farmer's holding; members of agricultural companies and partnerships; persons planning to use the restored land for private economic purposes as well as other agricultural activities; persons, who intend to lease the restored land for other legal persons engaged in farming. While restoring the right of ownership to the land used for agricultural purposes, it may be done only after identification of the use of this land. This may be either: 1) a person, regaining this land, provided that he is establishing a farmer's holding or is going to use this land for private economic purposes; 2) a tenant (a farmer,. a person ready to engage in farming, or an agricultural company), consenting to lease the land (or portion thereof), which is unnecessary for the needs of the landowner's family, for at least 3-year-period. Preliminary consent to lease plots of land used for agricultural purposes, designed in the land-planning project, must be witnessed by a notary. The priority for renting the land goes to the present user of this land." The specific purpose and status of land, in comparison to other objects of real property, predetermine special legal regulation of land relations. Thus, in the first part of Article 47 of the Constitution it is established that, land, internal waters, forests, and parks may only belong to the citizens and the State of the Republic of Lithuania by the right of ownership. The only exception is set forth in the second part of Article 47 of the Constitution: "Plots of land may belong to a foreign state by the right of ownership for the establishment of its diplomatic and consular missions in accordance with the procedure and conditions established by law". The second part of Article 54 of the Constitution contains the provision that the exhaustion of land shall be prohibited by law. This constitutional principle of land protection shows that land is interpreted as a public value having its social function - to serve the welfare of the people. The society is not indifferent to the way the land is used, because it is in public interests to preserve the productivity of land. Therefore, the right of the state to regulate conditions of the restoration of the rights of ownership to land is vital in order to co-ordinate the interests of former owners with the public interests. Parts 5 and 6 of Article 4 establish the conditions for the restoration of the rights of ownership, under which land used for agricultural purposes is returned in kind. The specific character of agricultural land is that it is used for agricultural production. Therefore, the legislator, while determining the conditions for the restoration of the land used for agricultural purposes, must neither impair the rights of former owners, nor ignore the public interest to use this land for agricultural purposes. Such public interest is based on the provision established in the third part of Article 46 of the Constitution that, the State shall regulate economic activity so that it serves the general welfare of the people. Parts 5 and 6 of Article 4 contain the provisions that land used for agricultural purposes may be restored to : 1) persons establishing a farmer's holding; 2) members of agricultural companies and partnerships; 3) persons who desire to use the land regained for personal economic needs and other agricultural activity. Said persons at present are already users of the land which is given back to them. It will further be used for its special purpose, therefore, their interests do not contradict public interests. The provision of the fifth part of Article 4 that the land used for agricultural purposes may be restored "to persons who are going to lease the land which is restored to them for other natural and legal persons engaged in farming", to a portion of former landowners, i. e. to those who themselves are not going to use the land for agricultural purposes, prescribes an unusual condition. The conclusion of lease contract is the owner's right based on his free will. The obligation to lease land, imposed on the owner, is not acceptable from the point of view of the traditions of civil law, as it restricts the freedom to dispose of land. Though, it must not be disregarded, that this is only a temporary measure used in the implementation of land reform. Land is restored to former owners ready to lease it, even if they would not use it for agricultural purposes. However, while applying unusual conditions for lease, which actually make the former owner lease the restored land for its real user, it is necessary to ensure the imposition of such imperative conditions on the other party to the lease contract as well. Thus, in cases when the owner chooses the lease of the land (or a portion thereof) as a condition of the restoration of the land which he had in his ownership earlier, the factual user of this land must conclude a lease contract with a landowner. In the event that the factual land user refuses to conclude a lease contract, such land should be restored to the former owner as a person who has met the condition prescribed by law to lease land. Disputes among parties pertaining to the lease contract and conditions thereof are to be investigated in civil procedure. Another interpretation of the provisions of the Law concerning the land lease would mean the violation of the rights of the former landowner as well as the principle of equality among parties to the contract. In the event that the former landowner does not desire to conclude said lease contract, he may choose another way of restoring the rights of ownership as an alternative. Such possibility to choose does not deny the principle of the inviolability of property, therefore, Parts 5 and 6 of Article 4 of the Law in dispute do not contradict the Constitution. 2. On the compliance of the items 14, 15, 16, 17, 18, and 19 of the Law "On Appending and Amending the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" ", adopted 15 July 1993,

Article 12

of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991 has been appended by items 10, 11, 12, 13, 14 and 15, with the Constitution of the Republic of Lithuania. In Article 12 of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991, which is entitled "The Buying out of Land" it is established: "Land required for State needs as well as other land shall be bought out from persons defined in Article 2 of this Law in the manner specified in Article 16 of this Law..." This Article provides for the cases of buying out of land. The buying out of land regulated by said Article is not identical to the purchase according to the contract of sale which is regulated by the norms of civil law. The contract of sale, in accordance with general principles of making contracts, is based on the free will and equality of the parties. Under this contract, the owner himself assumes the obligation to transfer his property to the purchaser at a contract price, and nobody can make him conclude this contract. The notion "buying out", used in Article 12, actually means the right of the institutions authorized by the State to adopt a decision not to restore the existing real property to the former owner provided that there are appropriate conditions established by the legislator himself. Buying out of the land is conditioned by the public interest in it but not by the will of the former owners and other persons specified in the Law. Buying out is not a voluntary transferral of one's property but its seizure compensating for its value. Said persons have only the right to choose the manner of compensation in the procedure prescribed by law. In case of disputes pertaining to the manner of compensation of property or its value, they may defend their interests in court. While considering the issues of returning the land to former owners, facing the system of socio-economic relations, that was formed during the period of 50 years, is inevitable. Land-tenure has changed: land areas were planted with forests; new water bodies came into being; railways and motor ways were built; the main network of oil and gas pipes was laid on ; urban areas and land areas covered by industrial enterprises have expanded; large-scale specialized units of agricultural production have been built and are functioning at present. Due to such new circumstances, the right of the state to regulate the conditions of the restoration of the rights of ownership, so that the interests of former owners and public interests were co-ordinated to the utmost, should not be ignored. The activity of State and its institutions, trying to establish the procedure and conditions of the restoration of the unlawfully terminated rights of ownership, must be based on the constitutional provisions ensuring the protection of the rights of ownership and the general welfare of the people. In item 10 of Article 12 it is established that land shall be bought out if "it is occupied by orchards, berry- fields, nursery-gardens, gardens with the installed irrigation systems of specialized agricultural enterprises. Such plots may be given back into ownership in kind, without changing the nature of land use, for the persons who shall lease it for agricultural enterprises using this land under the conditions specified in item 9 of said Article. This norm provides for buying out of land containing orchards, berry-fields, nursery-gardens as well as gardens with installed irrigation systems, that belong to specialized agricultural enterprises. Farming lands of such agricultural enterprises are formed with reference to perspective farming using long-term investments. Apart from irrigation and reclamation systems, other special industrial objects, such as depositories, refrigerators, equipment for production processing, etc., are installed in these companies. Such orchards, berry-fields, nursery-gardens, gardens along with all the equipment comprise a complete industrial-technological unit. Therefore, special technologies, the same means of pest control can be used, and the cultivation of fruit and vegetables can be specialized. Unconditional restoration of land would violate industrial-technological integrity of existing complexes, it even can lead to the ruining of all the operation of these units, so that their useful technological potential would be left unused. This would impair the public need for specialized production. The obligation to conclude a lease contract concerning the land to be returned is established meeting the interests of the former owner and society. With regard to the legislator's standpoint that the land must be used for agricultural purposes, the Constitutional Court expressed its opinion while resolving the issue whether Parts 5 and 6 of Article 4, which have been amended by the Law in dispute, are in conformity with the Constitution. However, the provision of item 10, that plots of land "may be" returned is flawed as it creates legal ambiguity. Such a provision means that the right of the former owner to restore land in kind may be restricted even in cases when he agrees to lease land under conditions prescribed by the Law in dispute. The consent of the former owner to lease shows that he meets all the conditions established by the Law in dispute, therefore, it must be evaluated as a juridical fact ensuring the restoration of the actual land property. However, in the presence of said provision ("may be"), this right of the former owner might be restricted by certain state institutions, officials, or current land users. Such possibility of subjective decisions contradicts the provision that the restoration of the rights of ownership is predetermined only by the conditions established in the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property". Therefore, the provision of item 10 of Article 12 that plots of land "may be" restored, contradicts Article 23 of the Constitution. In item 11 of Article 12 it is established that land shall be bought out if it "contains irrigation systems for overhead irrigation of fodder areas by disposed waters of cattle-breading complexes". This norm expresses the legislator's desire to ensure the functioning of existing cattle-breeding complexes as special technologies. Such complexes were formed as integral production systems, the functioning of which cause ecological problems which must not be ignored. Disposed waters that appear in the production cycle of cattle breeding complexes, must be permanently discharged. For overhead irrigation of such waters plots of land of appropriate size are needed, on which system of two-way regulation of humidity regime - pumping stations, communications of underground pipelines and systems of overhead irrigation - would be installed. If such special technology of elimination of disposed waters were not used, natural environment would be threatened. The objective situation is such that the industrial- technological process requires said plots of land with above- mentioned equipment. Therefore, such plots of land used for special purposes must necessarily be left near cattle- breeding complexes, because it is related to the public demand for the guarantee of ecological protection. Due to systematic irrigation of land areas, an appropriate regime of the utilization of irrigated land, essential limitations on crop rotation must be applied. Upon restoration of such land to former owners, the interests of cattle-breeding complexes and individual landowners would inevitably clash. An attempt to combine those interests may face objective as well as subjective obstacles, and may cause disorder in the functioning of the existing ecologically safe production systems. While solving the issues concerning the restoration of the rights of ownership and providing for the buying out of said plots of land, the legislator took into account not only economic but also ecological interests of society. Thereby, the legislator implemented the function of the State to concern itself with the protection of the natural environment, established in Article 54 of the Constitution. Therefore, there is no ground for recognizing that item 11 of Article 12 contradicts the Constitution. In item 12 of Article 12 it is established, that land "of forest districts and national parks to be used for the needs of forestry shall be bought out according to the standards determined by the Ministry of Forestry". Item 12 of Article 12 provides for the possibility not to return the land used for agricultural purposes in kind provided that this land, in compliance with the standards determined by the Ministry of Forestry, is assigned to forest districts and national parks. The restriction of the restoration of the right of ownership is related under this item to vague needs of forestry, without specifying any objective criteria for public interest. The statement that land not subject to restoration is necessary for the maintenance of horses needed for work in forests, is not a convincing argument, because such utitlization of land may not be regarded as pubic interest. The right to draft standards for agricultural land to be used for the needs of forestry, vested in the Ministry of Forestry, is also groundless. In this case, governmental institution is entitled to the right to determine the size of plots of land to be bought out for its own needs. The establishment of new conditions to be applied in the restoration of the right of ownership is within the competence of the legislator. The Ministry of Forestry actually becomes an institution resolving issues concerning ownership, i. e. it restricts the rights of the former owners to restore land in kind. Whereas, land may be seized only upon a specific decision adopted in compliance with the provisions of the third part of Article 23 of the Constitution. Limitations on the restoration of land, set forth in item 12, are not based on objectively expressed public interests, therefore, such restriction of the restoration of the rights of ownership of former owners contradicts Article 23 of the Constitution of the Republic of Lithuania. In item 13 of Article 12 it is established, that "land to be bought out in a rural area, shall be used for the construction of residential houses, common use of residents or other public needs in accordance with the settlement-development projects". In occupation period in Lithuania, upon denial of the private ownership to land and implementation of collectivization of agriculture as well as establishment of large-scale state farms, an appropriate structure of rural settlements was formed. That period saw the construction of many new rural settlements. Land, which before occupation used to be private property, was now used for the construction of these settlements. At present, the situation is such, when some land areas that used to be private property is now built over by residential houses, structures used for economic, cultural and other social purposes, therefore, this and other commonly used land in settlements may not be considered the existing real property and is not objectively possible to be returned for the former owners. Due to the economic reform in general, and land reform taken apart, the perspectives of the development of rural settlements are subjected to changes as well. They change in the process of restoration of the rights of private ownership to land. Therefore, preliminary purchase of land for the future construction of residential houses in accordance with settlement-development projects, for common use of residents or for other public needs, may not be based on public interest. Buying out of land in rural settlements according to the development projects provide for the possibility to privatize it later, i. e. other persons will be allowed to acquire it. That would mean, however, the violation of the right of former owners to restore land. In conformity with afore mentioned arguments it is recognized that item 13 of Article 12 contradicts Article 23 of the Constitution. In item 14 of Article 12 it is established, that "rivers and lakes belonging to the water fund of the State and local governments shall be bought out if they are ascribed to water bodies not subject to privatization in accordance with the procedure established by the Government of the Republic of Lithuania". The legislator, while adopting on 18 June 1991 the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property", established the conditions which were applied to former owners while returning inland waters. In item 8 of the resolution of the Supreme Council of the Republic of Lithuania "On the Process of Enforcement and application of the Law of the Republic of Lithuania "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property"" it is determined that: "A person shall own any lake of the size determined by the Government of the Republic of Lithuania, water reservoir, canal, pond, and other surface water body, if it is surrounded on all sides by his property". By way of implementing this resolution, the Government in paragraph 1, item 15 of resolution No 470 of 15 November 1991 established, that the restored area of afore mentioned waters along with land "must not exceed 5 hectares. In exceptional cases, the restored area may exceed 10 hectares, provided that the Department of the Environmental Protection of the Republic of Lithuania gives its consent thereto". In conformity with earlier formulated provisions of the legislator, the process of the restoration of unlawfully terminated rights of ownership and returning of water bodies to their former owners has already been under way. New conditions that are determined in item 14 of Article 12 impose even more restrictions on the rights of former owners who have not restored their water bodies yet. Only small in size water bodies have been returned. Therefore, the restrictions imposed on the restoration of such waters may not be justified by abstract public interest. In case that such interest is related to a specific water body, it may, regardless of its size, be seized only in accordance with the decision adopted under the provisions prescribed by the third part of Article 23 of the Constitution. In item 14 of Article 12, buying out of internal waters is based on their adherence to the State fund or the fund of local governments. This adherence of waters does not manifest public interest. On the contrary, due to this adherence, the possibility arises to ascribe any water bodies to this fund, in accordance with the provision that they are not subject to privatization. Such norm impairs the rights of former owners to restore water bodies in kind, therefore, item 14 of Article 12 contradicts Article 23 of the Constitution. In item 15 of Article 12 it is established that "land taken into the state land fund for establishing a farmer's holding shall be bought out provided that at present it is leased by persons who are actually engaged in farming and have structures used for economic activity, but may not restore this land in kind." It was the Law "On Farmer's Holding in the Lithuanian SSR", adopted on 4 July 1989, which at the end of Soviet period for the first time established the allocation of land for farmer's holdings. Those who desired to engage in farming were allotted land free of charge from the land fund designed for farmer's holdings. This fund appropriated land from the state reserve, state forest fund, State farms, collective farms as well as other enterprises and organizations (Article 7 of the Law "On Farmer's Holding in the Lithuanian SSR"). Said provisions were not nullified upon the adoption of the 11 March 1990 Law "On the Provisional Basic Law" in Article 3 of which it is established that: "Laws and other legal acts heretofore in force in Lithuania which do not conflict with the Provisional Basic Law of the Republic of Lithuania shall remain in effect in the Republic of Lithuania. With the presence of such norm, Land Code of the Republic of Lithuania, in accordance with the Law of 5 April 1990, was appended by Article 48-1 providing for the appropriation land into the land fund designed for farmer's holdings. Under this Law, plots of land were appropriated into the fund disregarding the right of ownership of former owners, although the institute of private property had already been returned into the legal system of the state. The allocation of land according to the Law on Farmer's Holding had not been terminated until the day of the enforcement of the Law on Land Reform of the Republic of Lithuania, i. e. until 1 September 1991 (Paragraph 1, item 1 of the Resolution of the Supreme Council "On the Procedure for the Enforcement of the Law on Land Reform of the Republic of Lithuania" of 25 July 1991). The provisions of item 1, Article 8 of the Law on Land Reform meant , that the citizens, having received land under the Law on Farmer's Holding, had to buy out or lease from the State an additionally acquired plot. Such provisions show that the State took the obligation to protect the rights of citizens who had acquired land according to the Law on Farmer's Holding, and to pay an appropriate compensation for the former owners. Thus, the State by laws provided the conditions for persons who acquired land into the ownership under the Law on Farmer's Holding, to settle on this land, engage in farming, as well as to have various structures there. Failing to provide the possibility for the State to buy out such land from the former owners, the contents of legal relations already regulated by laws, would be changed. That would mean retroactive validity of Article 12 of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991, because it would be applied to juridical facts and legal consequences which appeared on the basis of the Law on Farmer's Holding. Item 15 of Article 12 has eliminated the clash of laws, 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 has passed the following ruling: To recognize that concerning the Law of the Republic of Lithuania "On Appending and Amending the Law of the Republic of Lithuania "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" ", adopted 15 July 1993: 1) those parts of item 3,

Parts 5 and 6 of Article 4 of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991 have been amended, do not contradict the Constitution of the Republic of Lithuania; 2) the provision "may be" of item 14,

Article 12

of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991 has been appended by item 10, contradicts Article 23 of the Constitution of the Republic of Lithuania. Other provisions of this item do not contradict the Constitution of the Republic of Lithuania; 3) item 15,

Article 12

of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991 has been appended by item 11, does not contradict the Constitution of the Republic of Lithuania; 4) item 16,

Article 12

of the Law On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991 has been appended by item 12, contradicts Article 23 of the Constitution of the Republic of Lithuania; 5) item 17,

Article 12

of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991 has been appended by item 13, contradicts Article 23 of the Constitution of the Republic of Lithuania; 6)item 18,

Article 12

of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991 has been appended by item 14, contradicts Article 23 of the Constitution of the Republic of Lithuania; 7)item 19,

Article 12

of the Law "On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property" of 18 June 1991 has been appended by item 15, does not contradict the Constitution of the Republic of Lithuania. This Constitutional Court ruling is final and not subject to appeal. The ruling is promulgated on behalf of the Republic of Lithuania. Justices of the Constitutional Court: Algirdas Gailiūnas Kęstutis Lapinskas Zigmas Levickis Pranas Vytautas Rasimavičius Stasys Stačiokas Teodora Staugaitienė Stasys Šedbaras Juozas Žilys