Case No.25/94

Case No.25/94 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 Part 1 of Article 2 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” 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 Gailiûnas, Kæstutis Lapinskas, Zigmas Levickis, Vladas Pavilonis, Pranas Vytautas Rasimavièius, Stasys Staèiokas, Teodora Staugaitienë, Stasys Ðedbaras and Juozas Þilys, the secretary of the hearing - Rolanda Stimbirytë pursuant to Part 1 of Article 102 of the Constitution of the Republic of Lithuania and Part 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing of 30 May 1995 conducted the investigation of Case No 4/95 subsequent to the petition submitted to the Court by Kaunas Area Court requesting to investigate if item 2 of Part 1 of Article 2 of the Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property” is in compliance with the Constitution of the Republic of Lithuania. The Constitutional Court has established: I The petitioner - Kaunas District Court on 20 July 1994 conducted the investigation of civil case upon the complaint lodged by I.Èeplevièiûtë pertaining to the annulment of Decree of the Kaunas City Board in which it is refused to restore I.Èeplevièiûtë’s right of ownership to the existing real property. Kaunas district Court by its ruling has suspended the court proceedings of the civil case and requests the Constitutional Court to investigate if item 2 of Part 1 of Article 2 of the Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property” is in compliance with Article 23 of the Constitution. The Court has indicated that I.Èeplevièiûtë 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 Restoration of the Rights of Ownership 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 to investigate if item 2 of Part 1 of Article 2 of the Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property” (Official Gazette “Valstybës Þinios”, No.21-545, 1991; No.3-40, 1992) is in compliance with Article 23 of the Constitution. In his request the petitioner is also requesting to investigate if in resolution of disputes, which arise on the basis of the said Law, in court, the norms of the Civil Code may be applied and if 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 Pranciðkus Vitkevièius 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 Restoration of the Rights of Ownership 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 laws. 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 a special Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property” was adopted. In item 2 of Part 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 appended by 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 by which the Law was appended 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 Restoration of the Rights of Ownership 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 legal status of subjects parties to the legal relation of the restoration of the rights of ownership - spouse, children, adopted children, parents, foster parents etc. of general nature, established in the Matrimonial and Family Code, has not been subjected to a change in the Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property”. Part 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 of item 2 of Part 1 of Article 2 of the Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property” ‘upon the death of the former owner’ is applicable to an adopted child as well since the legislator 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 interpretation of a legal norm in dispute is grounded on the principles of law of general nature as well as legal traditions. 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”. Provision of item 2 of Part 1 of Article 2 of the Law “On the Procedure and Conditions of Restoration of the Rights of Ownership to the Existing Real Property” stipulating 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 has taken the following ruling: To recognise that provision of item 2 of Part 1 of Article 2 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” 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 Gailiûnas Kæstutis Lapinskas Zigmas Levickis Vladas Pavilonis Pranas Vytautas Rasimavièius Stasys Staèiokas Teodora Staugaitienë Stasys Ðedbaras Juozas Þilys