Case No 16/94 Case No 16/94 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA R U L I N G On the compliance of item
(29)-897, 1993; hereinafter referred to as Resolution in dispute) is in conformity with the Law on Privatization of Apartments. In the request the petitioner specified that, under Article 2 of the Law on Privatization of Apartments, apart from flats, rooms in hostels belonging to the state and public housing fund shall be the object of purchase-sale. According to the procedure established in Article 3 of said Law, apartments rented by the persons who have joined the house building cooperatives, shall not be privatized in the event that these persons are given preferential credit. The Law on Privatization of Apartments does not prohibit to privatize rooms in hostels. The legislator in the Law on Privatization of Apartments distinguished two separate notions - "apartments" and "rooms in hostels". The Government also distinguished these notions in the Resolution in dispute by specifying that a tenant who refuses preferential credit for the construction of a cooperative apartment may privatize the apartment he rents. Pursuant to item
- 2 of the Resolution in dispute, a tenant may not privatize a hostel room in the procedure prescribed by the Law on Privatization on Apartments even when he refuses preferential credit given for the construction of a cooperative apartment.
- During preliminary investigation of the case and in the court hearing the representatives of the party concerned explained that the State's purpose was to attain that every family would have a separate flat - either by the right of ownership or by lease. Such a provision is established in Article 344 of the Civil Code and item 3, Part 1, Article 11 of the Law of the Republic of Lithuania on Housing. On 20 December 1991 the first part of Article 3 of the Law on Privatization of Apartments was appended by item 4, which contains the provision that, under this Law, apartments rented by the persons who received preferential credit for the construction of a cooperative apartment or house, shall not be privatized. However, the Government taking into account the hardships in construction of residential houses and crediting thereof, also the fact that a new draft Law on Housing was under way, and striving to reduce the social tension, provided the possibility for the tenants either to privatize the residential premises under the Law on Privatization of Apartments, i. e. in easy-term procedure, or to use the privileges given by the State for the construction of an apartment. On 15 July 1993, the object of premises subject to restoration under the Law on Privatization of Apartments was expanded. In the first part of Article 3 of this Law it was established that the object of purchase-sale shall be "residential houses belonging to the state and public housing fund, apartments in apartment houses, apartments and rooms in hostels (hereinafter referred to as "residential houses, apartments"). Thereby, rooms in hostels, i. e. residential premises that do not meet the requirements of a separate apartment, have also become the object of purchase-sale. The representative of the party concerned maintained that more than 90 percent of the residents, who until the adoption of said amendment to the Law had expressed their will to privatize apartments, had already privatized them. The Government has also adopted other resolutions concerning the hostels, that were meant for the implementation of the principle that vacant rooms in hostels must be allotted for other inhabitants residing in these hostels who are allowed to make residential premises that met the requirements set for apartments. Therefore, the Government has not provided for any possibility for persons living in hostel rooms and apartments with commonly used kitchens to choose whether to buy the leased room in a hostel in easy-term procedure or to build an apartment using state support. In the opinion of the party concerned, the disputable provision of item
- 2 of the Government Resolution is in conformity with the Law on Privatization of Apartments. The Constitutional Court holds that: Upon the returning of the constitutional institute of the right of private ownership into the legal system of the Republic of Lithuania, laws were adopted on privatization of state and public housing fund. Privatization of apartments became one of the social policies pursued by the State. By way of implementing this policy, the Law on Privatization of Apartments was adopted which was enforced on 30 June
- In the first part of Article 2 of the Law on Privatization of Apartments it was established that "the object of purchase-sale shall be residential houses, apartments in apartment houses and hostels (hereinafter referred to as "residential houses, apartments") belonging to the state and public housing fund. Item 2 of the Supreme Council Resolution "On the enforcement of the Law of the Republic of Lithuania on Privatization of Apartments" of 30 May 1991 prescribes the conditions the apartments in hostels should meet in order to privatize them. The conditions are as follows: "1)separate apartments are turned (reconstructed) into hostels; 2) residential premises used as hostels meet the requirements of a separate apartment: there is a separate entrance, living rooms, kitchen and other facilities of the apartment that comply with the conditions of that locality". In item 2 of the first part of Article 3 of the Law on Privatization of Apartments it was determined that, under this Law, the rooms in hostels would not be sold. These norms have established the provisions restricting the rights of some part of the citizens of Lithuania who live in hostels to privatize residential premises that fail to meet the requirements set for apartments. The first part of Article 2 of the Law on Privatisation of Apartments was formulated in the Republic of Lithuania Law "On Appending and Amending the Law of the Republic of Lithuania on Privatization of Apartments of 15 July 1993 in the following way: "The object of purchase-sale shall be residential houses, apartments in apartment houses, apartments and rooms in hostels (hereinafter referred to as "residential houses, apartments")". According to this norm, rooms in hostels may be privatized except those hostels "which in the procedure prescribed by the Government are allotted for the residence of pupils, students and doctoral students of secondary and vocational schools, institutions of further and higher education as well as rooms in hostels belonging to the Lithuanian Union of the Blind and Weak-sighted, the Lithuania Society for the Deaf and Lithuanian Society of the Disabled". The first part of Article 3 of the Law on Privatization of Apartments entitled "Residential houses and apartments not subject to privatization" was on 20 December 1991 appended by item 4 which reads: "4) apartments rented by persons who have been allotted a plot of land for the construction of an individual residential house or who have joined the house building cooperative, if said persons are given preferetial credits for the construction of a residential house or if the plot of the land allotted for the construction of an individual house is in the area connected to the main engineering network, shall not be privatized". This norm of the Law contains the provision that apartments rented by persons who have joined the house building cooperatives, shall not be privatized, if said persons are given preferential credits. At the same time, Article 4 of the Law on Privatization of Apartments was appended by the fourth part specifying that: "a tenant, along with family members, upon the acquisition of ownership rights to a residential house or apartment they have bought, under this Law may not privatize another residential house or apartment". The legislator has interpreted that privatization of an apartment is in accordance with the Law on Privatization of Apartments and preferential credit given for the construction of an apartment are separate forms of state support for its residents and the latter may use only one of them. This is confirmed also in Article 12 of the Law on Housing prescribing the right for the citizens to choose one of the forms of support - either to exercise the right to get preferential credit for the construction or purchase of a residential house or apartment, or to buy in instalments residential premises rented from local governments and state enterprises. However, the Law on Privatization of Apartments says nothing about the right to privatize apartments belonging to the state and public housing fund to the persons who refused preferential credit offered to them for the construction of an apartment. The Government under the 22 January 1992 Resolution "On partial amending and appending the Government of the Republic of Lithuania Resolution No 309 of 31 July 1991" has appended item 4 by paragraph 5 and established that in the case that a tenant belongs to the house building cooperative and refuses preferential credit, he is allowed to privatize the rented residential house or apartment. The contents of general notion "apartment" was expanded upon the amendment of the first part of Article 2 of the Law on Privatization of Apartments by the Law of 15 June
- The notion has been appended by a new object of purchase sale, i. e. rooms in hostels. By this supplement it has been established that preferential credit for the construction of an apartment is a uniform condition for privatization of the apartment irrespective of the fact whether an apartment or a room in a hostel is bought. The Government, in the Resolution in dispute having established the provision that a tenant who refuses preferential credit for the construction of a cooperative apartment may not privatize a room in hostel, prescribed different conditions for privatization of apartments and rooms in hostels. Such different conditions with regard to individual groups have not been provided for in the Law on Privatization of Apartments, therefore this provision contradicts the first part of Article 2 and item 4, Part 1, Article 3 of said Law. Conforming to Article 102 of the Constitution of the Republic of Lithuania as well as Articles 53, 54, 55, 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court has taken the following ruling: To recognize that the provision that a tenant who refuses preferential credit for the construction of a cooperative apartment may not privatize a room in a hostel, established in item
- 2 of the Government of the Republic of Lithuania Resolution "On appending and amending of some resolutions of the Government of the Republic of Lithuania concerning privatization of apartments" of 3 September 1993, which has amended the fifth paragraph of item 4 of the Resolution "On the procedure for the privatization, sale and use of apartments", adopted 31 July 1991, contradicts the first part of Article 2 and item 4, Part 1, Article 3 of the Law of the Republic of Lithuania on Privatization of Apartments. 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 Gailiûnas Kæstutis Lapinskas Zigmas Levickis Vladas Pavilonis Pranas Vytautas Rasimavièius Teodora Staugaitienë Stasys Ðedbaras Juozas Þilys