of the 2 April 1996 Law of the Republic of Lithuania “On Amending and Supplementing Articles 8, 19, 20, 21 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property” as well as Appending this Law by Article 211” whereby Article 8 of the 18 June 1991 Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property” has been appended by a new Part 5 and if the norm of Article 2 whereby Part 1 of Article 19 of the aforementioned law has been amended and supplemented are in compliance with the Constitution of the Republic of Lithuania. The Constitutional Court has established: I The Seimas by its 2 April 1996 Law “On Amending and Supplementing Articles 8, 19, 20, 21 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property” as well as Appending this Law by Article 211” (Official Gazette “Valstybës Þinios” No. 37-929, 1996) supplemented Article 8 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property” (hereinafter in the ruling referred to as the Law) with the following norm: “Providing a citizen wishes to restore his right of ownership to a dwelling-house (portion thereof or apartment) in kind, and providing the said dwelling-house (portion thereof or apartment) may not be returned in kind in pursuance of
this article, the mayor (board) or the State institution shall inform the citizen in writing and propose him to choose the manner of buying out which is indicated in Part 4 of this article. Providing the citizen did not choose the manner of buying out of the dwelling-house (portion thereof or apartment) within 3 months from the day of reception of the proposal, the mayor (board) shall adopt the decision to buy out the dwelling-house, portion thereof (apartment) for money and securities.” Part 1 of Article 19 was amended and supplemented with this norm: “The institutions which are indicated in Parts 1, 2, and 3 of Article 18 of this Law must investigate the requests of citizens and adopt decisions regarding restoration of the right of ownership (with the exception of the restoration of the right of ownership to land and forest) within 3 months from the day of submission of the documents proving the right to ownership.” Ii The petitioner - a group of the members of the Seimas - requests to investigate if the aforesaid norms in their volume whereby the conditions and procedure of restoration in kind of the rights of ownership to dwelling-houses are altered are in compliance with the Constitution. In his petition, the petitioner points out that the disputed provision of Article 8 makes it actually impossible to retrieve in kind the dwelling-houses which at present are occupied by tenants as item 4,
establishes that “dwelling-houses (or portions thereof), apartments shall be returned in kind in the case that: [...] 4) the tenants who occupy houses (or portions thereof), apartments subject to being returned are provided with a dwelling place conforming to the requirements of Article 358 of the Civil Code of the Republic of Lithuania”. According to the provision “institutions must investigate the requests of citizens and adopt decisions regarding restoration of the right of ownership (with the exception of the restoration of the right of ownership to land and forest) within 3 months from the day of submission of the documents proving the right to ownership” of contested Article 19, while adopting decision regarding restoration of the right of ownership to a dwelling-house, the decision must be adopted whether it is possible to return the house in kind or, providing there is not such a possibility, it is necessary to compensate the former owner for his property which he used to possess. If the house subject to being returned is occupied by the tenants, the institutions which are to pass the decision, must, in addition, adopt the decision whether they may provide the tenants with other dwelling place within said 3 months. The petitioner alleges that the unconditional duty of the mayor (board) or any other state institution which is set forth by contested provisions of Article 8 of the Law means that the dwelling-houses occupied by the tenants will not be returned to the owners as no institution that adopts decisions regarding restoration of the rights of ownership is not capable to provide the tenants with dwelling place within 3 months. The petitioner is of the opinion that such a provision contradicts Part 5 of Article 21 of the Law which was supplemented by the disputed law, too, which prescribes that “persons who reside in a dwelling-house, portion thereof, or apartment which is being returned to the owner shall be provided with a dwelling place by the local government of the respective town or district pursuant to the programme prepared and carried out by the Government of the Republic of Lithuania. The means to implement such programmes shall be provided for yearly from the State Budget”. Such programmes are implemented during long period of time and cannot be implemented within 3 months. According to the disputed provisions of the law, however, the mayors (boards) of the local governments or state institutions must adopt decisions regarding restoration of the rights to ownership to dwelling-houses when taking no account of the implementation of the said programmes. Thus the returning of property in kind becomes dependent on arbitrary factors: when the documents proving the right to ownership were submitted, how much of unoccupied dwelling place which may be proposed to the tenants who live in the houses subject to being returned is left at the command of a particular local government, etc., but not on the objective circumstances (the economical capacity of the sate). Hence the state loses its opportunity to implement its major duty - to co-ordinate different interests of social groups (owners and tenants). The petitioner alleges that the legislator by actually abolishing the opportunity to implement state long-term programmes designed to provide the tenants who now reside in the dwelling houses which are being returned with appropriate dwelling place, at the same time deprived the persons who wish to restore their rights of ownership to the dwelling-house where the tenants reside of the opportunity to retrieve the property in kind. This contradicts the principle of the protection of the rights of ownership which is set forth in Article 23 of the Constitution and which was interpreted by the Constitutional Court for many a time. In the opinion of the petitioner, in this case the public need is to co-ordinate the interests of the owners and tenants, this must be done with the power of the state during the time limits known for both parties and not by immediately and unconditionally satisfying the interests of one party. The petitioner indicates that the Constitutional Court set forth an analogous view in its 22 December 1995 ruling: “When restoring ownership rights to residential houses (or portions thereof), or apartments, there exist a variety of possible manners to co-ordinate the protection of the rights of former owners and the rights of tenants. [...] The allotment of some other dwelling place to tenants is the problem of law enforcement, the economical capacity of the state and that of the possibilities of the owners. In order to solve this problem, as well as that of relations between former owners and tenants who occupy the houses of the former, the Government must prepare corresponding programmes (Part 5, Article 21 of the Law, Article 14 of the Law “On Enabling the Population of the Republic of Lithuania in Providing Themselves with Dwelling Places”). The implementing of programmes is an economic problem and it is being solved when discussing, adopting and fulfilling the budget.” The petitioner also notes that the Constitutional Court also held in the same ruling that “if a former owner requests to restore a house (or a portion thereof), or an apartment in kind, the legal condition of the tenant shall remain intact, however, the tenant is not entitled to privatise the aforesaid dwelling place”. The petitioner is of the opinion that the interests of the tenant may not be violated as they are protected by the same law. The tenant is provided with an opportunity to privatise the dwelling place which will subsequently be allotted to him. Meanwhile, the interest of the former owner to restore the building in kind is violated because its implementation becomes dependent upon the conditions that are impossible to fulfil: Can the Government find enough means so that all the tenants who now reside in the houses which are subject to being returned were actually within 3 months at one instance in whole Lithuania provided with other dwelling place? The petitioner concludes that the law-maker should establish the duty for local governments that they during certain time limits by carrying out the Government programme must provide the tenants who reside in a house which is subject to being returned with other dwelling place but never should the law-maker establish the duty for the local governments or other institutions that they immediately recognised that the house where the tenants reside is not subject to being returned nor the duty for the former owner to immediately opt for a manner of compensation. In the process of judicial investigation the representatives of the petitioner emphasised that, while restoring ownership rights to real property, the main provision is justice. Justice is understood as a balance of interests, and in this particular case it is the co-ordination of interests of the former owners and the tenants who now reside in the houses which are subject to being returned. The main interest of the owner is retrieval of the real property in kind whereas that of the tenant is to get and privatise other dwelling place which corresponds to that returned to the owner. The co-ordination of these interests objectively depends on the economic capacity of the state. Therefore it is immoral and illegal to require that the issue of property restoration or that of compensation allotment were decided within 3 months while, in addition, one should consider the fact that the compensation is paid within 10 years whereas the budget is accrued for one year but not for 3 months. The representatives of the petitioner did not contest the right of the tenant residing in the house subject to being returned to other dwelling place which conforms to the requirements of law. However, as the Law provides that the issue of the property restoration in kind or compensation of the value of the property must be decided within 3 months and while it is impossible to restore ownership rights in kind during such a short period of time, thus, if the compensation was allotted to the former owner, the principle of co-ordination of interests would not be followed. The representatives of the petitioner also deem that this procedure provided for in the Law contradicts Article 29 of the Constitution. Equality of rights of persons is violated as implementation of the rights is dependent on the economic capacity of a particular local government and on the fact how much of the unoccupied dwelling place is at its disposal at the given moment. In the opinion of the representatives of the petitioner, when solving this issue, a roll of the queue of the tenants who reside in the houses which are subject to being returned to the owners and who must be provided with dwelling place must have been formed. They must be provided with other dwelling place within 10 years and from state means, the dwelling place rented by them may not be privatised while the local government or another state institution shall adopt the decision to return the property to former owners in kind. The interests of the tenants are protected by the guarantees for the tenants as provided in the Law. The allotment of dwelling place to the tenants should be the priority direction of the budget. III While replying to the Constitutional Court paper for the party concerned, Pranciðkus Vitkevièius, Chairman of the Seimas Committee of State and Law, when the case was being prepared for the court hearing, explained in writing that the members of the Seimas do not insistently point out in their petition as to what provisions (what articles) of the Constitution are challenged by the contested norms. The petition contains an indication to Article 23 of the Constitution, however, the Constitutional Court has held that persons whose ownership rights are not restored and who claim to restore the rights shall not be the owners. Therefore it is impossible to assert that the disputed norms contradict Article 23 of the Constitution. The Chairman of the Committee points out that the initial wording of the Law was not perfect. It was necessary to amend and improve the Law while taking account of the actual economic and social conditions and the interests of particular groups of people of Lithuania. The disputed amendments were passed on the grounds of the following reasons: 1) The former norms of the law were vague and solving of the ownership restoration issue was not limited by any time limit whereas such a vagueness corresponded the interests of neither the former owners nor the tenants. The Seimas had to resolve this issue then. 2) When resolving the issue of restoration of the ownership rights to existing houses, it was necessary to consider the economic situation of the state. At the given moment, the Republic of Lithuania is not capable to provide with dwelling place in pursuance of Article 357 of the Civil Code all the tenants who reside in houses the right to property to which must be restored. In addition, there exist no means to pay at once the former owners all the price of the houses (apartments) which formerly belonged to them. The Chairman of the Committee deems that the provisions of the disputed law are in compliance with the Constitution. The representative of the party concerned explained during the process of judicial investigation that, in his opinion, this amendment of the Law was defective from its adoption as it did not establish the procedure of investigation of prior submitted requests to restore the ownership rights. A great many of the requests had to be investigated at once only after this amendment had been adopted. The representative of the party concerned also emphasised that until the ownership rights are not restored to the former owners they are not the owners as yet. Thus their rights may not be protected on the basis of Article 23 of the Constitution therefore the contested provisions of the Law may not contradict Article 23 of the Constitution. In the opinion of the representative of the party concerned, the disputed norms of the Law do not violate the principle of the equal rights of people as established in Article 29 of the Constitution either because in this case the equality of rights can be violated provided the law is implemented and as to who and how implements the norms provided for by the law. The same should be mentioned as regards equality of rights of persons when adopting the norms of the law. The law shall be amended when taking account of changing socio-economic circumstances as well as those which were not considered when the law was being adopted. The Constitutional Court holds that: I The restitution of the constitutional institute of the right of private ownership is to be linked with the 11 March 1990 Republic of Lithuania Law “On the Reinstatement of the 12 May 1938 Constitution of Lithuania”. By adopting the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property”, the legislator based himself on the concept that the constitutional institute of the right of private ownership had already been restored and that it had to be actually implemented. Alongside, the principal provision was consolidated that the protection of the ownership rights which had been violated during the period of occupation means that the ownership rights shall be restored to existing real property by, first of all, returning it in kind. And only providing it is impossible to return the property in kind because of the conditions enumerated in the Law it shall be compensated in other manner at the option of the former owner as it is established in the Law. When restoring the ownership rights to dwelling-houses, portions thereof, apartments, the Law does not ignore the legitimate interests of the tenants. In this case the regulation role of law manifests itself in that the rights of former owners and the legitimate interests of tenants are co-ordinated. When the house is returned to the former owner, the interests of tenants are protected by providing them with other dwelling place. While assessing the disputed appendages of the Law concerning the restoration of the ownership rights to dwelling-houses, it is necessary, first of all, to take account of the legal aspects of co-ordination of these interests. II The Seimas by its 2 April 1996 Law “On Amending and Supplementing Articles 8, 19, 20, 21 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property” as well as Appending this Law by Article 211” supplemented Article 8 of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property” with the following norm: “Providing a citizen wishes to restore his right of ownership to a dwelling-house (portion thereof or apartment) in kind, and providing the said dwelling-house (portion thereof or apartment) may not be returned in kind in pursuance of
this article, the mayor (board) or the State institution shall inform the citizen in writing and propose him to choose the manner of buying out which is indicated in Part 4 of this article. Providing the citizen did not choose the manner of buying out of the dwelling-house (portion thereof or apartment) within 3 months from the day of reception of the proposal, the mayor (board) shall adopt the decision to buy out the dwelling-house, portion thereof (apartment) for money and securities.” Part 1 of Article 19 was supplemented with this norm: “The institutions which are indicated in Parts 1, 2, and 3 of Article 18 of this Law must investigate the requests of citizens and adopt decisions regarding restoration of the right of ownership (with the exception of the restoration of the right of ownership to land and forest) within 3 months from the day of submission of the documents proving the right to ownership.” The disputed supplements must be interpreted along with other norms of the Law.
of the Law prescribes the cases under which the dwelling-houses, portions thereof, apartments shall be returned in kind. Part 4 of Article 8 of the Law establishes that “in all other cases, not specified in
this Article, the ownership right to dwelling-houses (or portions thereof, apartments) shall not be returned in kind and the ownership right shall be restored by buying them out from the persons indicated in Article 2 of this law at their option in the following manner: [...]”. Upon the association of the disputed supplements of the Law with these norms, it is possible to understand that the aforementioned supplements may be applied to some cases regarding the returning of dwelling-houses, portions thereof, apartments in kind and which are enumerated in
In the process of the judicial investigation, the petitioner, as well as his representatives, in his petition interpreted the defectiveness of the contested supplements by associating them with the norm of item 4,
of the Law which stipulates that providing a citizen wishes to retrieve the dwelling-house in kind in the case that it is occupied by the tenants he shall be proposed to restore his ownership rights by buying the said house out by the state in the manner provided for by the Law. Provided the former owner does not wish that his ownership rights were restored by the manner of buying out or he does not choose the manner of buying out within the period of 3 months and wishes to retrieve the house in kind then the institution which investigates the request of the citizen to restore the ownership rights must adopt the decision to buy out this property against the will of the former owner. Such a period of time is not a realistic one as it is impossible to provide all the tenants with other dwelling place during a very short period of time, neither is it possible to pay the former owners compensations for the dwelling-houses which are not returned. The petitioner and his representatives are of the opinion that the disputed supplements of the Law deny the possibility to restore the ownership rights to dwelling-houses in kind. Thus the Constitutional Court will assess the disputed supplements of the Law in the volume whereby the said supplements are related to item 4,
of the Law, i.e., with the opportunity to retrieve dwelling-houses, portions thereof, apartments in kind in the case the tenants reside therein. III The legal norm by which the state loads itself with a respective responsibilities, in this case - to provide the tenants who reside in the houses, portions thereof, apartments which are subject to being returned to the former owners with corresponding dwelling place - must be grounded on material and financial resources. Otherwise this legal norm becomes ineffective, it is impossible to make use of it (ius nudum). Part 5 of Article 21 of the Law establishes that persons who reside in a dwelling-house, portion thereof, or apartment which is being returned to the owner shall be provided with a dwelling place by the local government of the respective town or district pursuant to the programme prepared and carried out by the Government of the Republic of Lithuania while the means to implement such programmes shall be provided for yearly from the State Budget. While implementing the Law, the Government adopted its 27 October 1992 Resolution No. 805 “On Programmes to Provide Tenants Who Live in Houses Subject to Being Returned to Former Owners with Apartments”. It provides for material and financial measures aimed at providing the tenants with other dwelling place until the year 2000 and afterward. Along with these guaranties, the right to state support is provided for the tenants (item 2, Part 1 of Article 9, and Article 14 of the Law “On Enabling the Population of the Republic of Lithuania in Providing Themselves with Dwelling Places”), as well as the right to other appropriately furnished dwelling place (item 4,
of the Law, Part 1 of Article 356 of the Civil Code), as well as the right to buy out the allotted other dwelling place making use of the deposited state extraordinary disbursements (vouchers) and other purposive compensations (Article 211 of the Law, Article 2 of the Law “On Utilisation of State Extraordinary Disbursements and Other Purposive Compensations”, as well as other guarantees (Parts 6-8 of Article 21 of the Law). The Constitutional Court has also held that, while restoring the ownership rights, it is necessary to co-ordinate the interests of former owners with public interests (the 27 May 1994 and 8 March 1995 rulings) as well as to bring into accord the lawful interests of former and present owners of the same property as well as those of the tenants, occupying the houses subject to being restored (the 15 June 1994 and 22 December 1995 rulings). According to the disputed supplements of Articles 8 and 19 of the Law, the former owners are deprived of the right to retrieve the dwelling-houses, portions thereof, apartments in kind. Thus the new legal norm does not co-ordinate the interests of certain social groups - the former owners and the tenants who reside in the houses, portions thereof, apartments of the former owners. On the contrary, in the case that the former owner wishes to retrieve the property in kind, the priority of the tenant’s interests protection is established which is not in conformity with the constitutional protection of the right to property. IV In the theory of law, as well as in the practice of application of legal acts, the principle is followed that the material legal norms have the priority in regard of procedural legal norms. As a rule, the latter are of official character, i.e., they are aimed at implementation of material legal norms. Article 8 of the Law contains legal norms of two types: the material legal norms establishing conditions under which the ownership right are restored (the dwelling-house, portion thereof, or apartment is returned in kind or bought out) and the procedural legal norms establishing the procedure whereby the ownership rights are restored providing there exist the conditions established by the material norms of the Law. The contested provisions of Part 5 of Article 8 are virtually to be assessed as procedural norms. However, when conforming to these norms and the supplement of Article 19 of the Law, the mayor (board) of the local government of the town (district) or the state institution (
of the Law) must adopt the decision that the dwelling-house portion thereof, apartment of the former owner shall be bought out in the case that it is occupied by the tenants. Thus, on the grounds of the procedural norm, the former owner is deprived of the opportunity to restore his ownership rights by retrieving the property in kind. The Constitutional Court already investigated the compliance of the norm of item 4 stipulating that the dwelling-houses (or portions thereof), apartments shall be returned in kind in the case that “the tenants who occupy houses, portions thereof, or apartments subject to being returned are provided with a dwelling place conforming to the requirements of Article 358 of the Civil Code of the Republic of Lithuania” with the Constitution. The Constitutional Court held in its 22 December 1995 ruling that the lease with the tenant may be forfeited and he may be evicted in the case that the condition of item 4 of Part 2, Article 8 of the Law is met, i.e. he is allotted a corresponding dwelling place. Only then may the former owner retrieve the dwelling-house, portion thereof, apartment in kind when this condition is fulfilled. As it was mentioned, the guarantees established by laws as well as the programme of providing the tenants with other dwelling place virtually condition the time period of carrying out the restoration of the ownership rights in kind. However, the norm of Part 5 of Article 8 of the Law imperatively establishes the concrete time period of 3 months from the day of the proposal to choose the manner of buying out the house, portion thereof, apartment. Provided the citizen who wishes to retrieve the dwelling-house, portion thereof, or apartment in kind does not choose the manner of buying out in the case that there exists the condition provided for by item 4,
of the Law, then the institutions which investigate citizens’ requests to restore their ownership rights must adopt decisions pursuant to administrative procedure (Part 1 of Article 19 of the Law) to restore the ownership rights but only by buying out the dwelling-houses, portions thereof, or apartments from the former owners. This norm altered the principal provision of the Law that while restoring ownership rights priority shall be given to restoration of the property in kind. The fact that by the aforesaid groundlessly short time periods the process of the restoration of the ownership rights by retrieving the dwelling-houses, portions thereof, or apartments in kind is actually ceased contradicts the constitutional provisions of the protection of property rights. V It should be noted that the persons whose ownership rights to dwelling-houses, portions thereof, or apartments are restored in case they are occupied by the tenants had an opportunity to retrieve them in kind until the adoption of the contested amendments of the Law and when the implementation of these rights was not bound by concrete time limits. Under such conditions, part of the former owners have already retrieved dwelling-houses, portions thereof, apartments in kind. Meanwhile, the disputed supplements of Articles 8 and 19 of the Law obligate the institutions of state governing to resolve the issue of the restoration of ownership rights during a very short time period. Thereby the process of the restoration of the ownership rights by the main manner provided for by the Law, i.e., to return the dwelling-houses, portions thereof, or apartments in kind, is actually ceased. The former owners who have not retrieved the dwelling-houses, portions thereof, or apartments, in essence, loose the opportunity to retrieve them under the contested supplements of the Law. This is to be treated as the violation of the principle of the equality of people which is consolidated in Article 29 of the Constitution. On the grounds of the motives set forth, the Constitutional Court concludes that the disputed supplements of Articles 8 and 19 of the Law contradict Articles 23 and 29 of the Constitution. Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law of the Republic of Lithuania on the Constitutional Court, the Constitutional Court has passed the following ruling: To recognise that the norms of Part 5 of Article 8 and of Part 1 of Article 19 of the Republic of Lithuania Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property” in their volume whereby the possibility of the former owners to retrieve in kind dwelling-houses, portions thereof, or apartments when they are occupied by the tenants is denied as established in item 4,
of this law contradict Articles 23 and 29 of 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: Egidijus Jaraðiûnas Kæstutis Lapinskas Zigmas Levickis Augustinas Normantas Vladas Pavilonis Jonas Prapiestis Pranas Vytautas Rasimavièius Teodora Staugaitienë Juozas Þilys
DI paaiškinimas pagal oficialų įstatymo tekstą. Orientacinis, nepakeičia teisinės konsultacijos.