Case No 2/94
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the norms of the Law of the
Republic of Lithuania On Privatization of Apartments,
establishing the privatization of hostel rooms in the
institutions of higher education, with the Constitution of
the Republic of Lithuania
27 June 1994, Vilnius
The Constitutional Court of the Republic of
Lithuania, composed from the Justices of the Constitutional
Court Algirdas Gailiūnas, Kęstutis Lapinskas, Zigmas
Levickis, Vladas Pavilonis, Pranas Vytautas Rasimavičius,
Stasys Stačiokas, Teodora Staugaitienė, Stasys Šedbaras and
Juozas Žilys,
the secretary of the hearing - Sigutė Brusovienė,
the party concerned - Seimas members Julius
Beinortas, Gediminas Adolfas Paviržis, representatives of
Seimas, advocate Kazimieras Motieka and Algirdas Taminskas,
pursuant to Part 1, Article 102 of the Constitution
of the Republic and Part 1, Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its
public hearing of 16 June 1994 conducted the investigation
of Case No 2/94 subsequent to the petition submitted to the
Court by the Presidium of the Supreme Court of Lithuania
requesting to investigate if the norms of the Law On
Privatization of Apartments, establishing the privatization
of hostel rooms of the institutions of higher education, are
in compliance with the Constitution of the Republic of
Lithuania
The Constitutional Court
has established:
1.
Vilnius 2nd District Court by the decision, adopted
on 6 October 1993, complied with the suit brought to the
Court by the plaintiffs G. Aleksonis and R. Aleksonienė
against the defendant - Vilnius University - pertaining to
the privatization of a dwelling, and commissioned the
University to sell for the plaintiffs their leasehold in
Čiurlionio str. 1/2-15, Vilnius. The Court decision was
passed pursuant to the Law On Privatization of Apartments,
establishing the procedure of purchase-sale of the state and
public housing fund to the tenants leasing dwellings. In the
first part of Article 2 of the Law On Privatization of
Apartments, it is set forth that "the object of purchase-
sale is residential houses belonging to the state and public
housing fund, apartments in many-flat houses, apartments and
rooms in hostels". In the second part of Article 3 of this
Law it is specified that "rooms in hostels, which are
allotted to the students, graduates and post-graduates of
the institutions of secondary, vocational, further and
higher education in the procedure prescribed by the
Government, as well as rooms in the hostels belonging to the
Union of the Blind and Weak-sighted of Lithuania, Society
for the Deaf and Society of the Disabled of Lithuania, shall
not be subject to privatization" (Law of the Republic of
Lithuania on the Privatization of Apartments, edition
adopted on 15 July 1993, Official Gazette "Valstybės Žinios"
No 32-722, 1993).
The Panel of Civil Cases of the Supreme Court of
Lithuania by the ruling of 18 November 1993 left the court
decision unchanged.
The deputy Chairman of the Supreme Court appealed by
protest in order of supervision to the Presidium of the
Supreme Court requesting to nullify the court decision and
the College ruling, to adopt a new decision and to dismiss a
suit.
While considering this protest, the Presidium of the
Supreme Court by its resolution suspended the investigation
of the civil case and addressed the Constitutional Court
with the request to investigate if the Law on Privatization
of Apartments, while applying it with respect to the hostel
of Vilnius University, is in conformity with the third part
of Article 40 of the Constitution of the Republic of
Lithuania.
2.
The Presidium of the Supreme Court bases the request
on the following arguments.
In the third part of Article 40 of the Constitution
it is established that institutions of higher learning shall
be granted autonomy. Under the statute of Vilnius
University, this institution of higher education having
autonomy exercises the right of inviolability of its
territory and buildings. Only the Seimas of the Republic of
Lithuania may change the boundaries of University territory
and give over the buildings, taking the opinion of the
University Council into consideration. The University
Council and Senate, while resolving G. Aleksonis' request to
be permitted to privatize the dwelling, and expressing the
opinion that the hostel in Čiurlionio str. 1/2 was not
subject to privatization, relied on said constitutional
provision and Vilnius University Statute.
Vilnius 2nd District Court justifies its decision
maintaining that the Law on Privatization of Apartments is a
special law, adopted later than the statute of Vilnius
University. In the opinion of the Court, in case of the
competition of laws, the norms of the Law on Privatization
of Apartments are applied. The Panel of Civil Cases
consented to such conclusions made by the Court and stated
that premises under dispute are not specified on the list of
premises not subject to privatisation.
In the protest in order of supervision it is argued
that the dispute had to be resolved in conformity with the
statute of Vilnius University, which is a special norm for
this University, whereas the Law on Privatization of
Apartments is a general one, applied in the privatization of
the state and public housing fund of all the Republic.
Without the consent of University Council to privatize the
premises under dispute, and without the adoption of the
Seimas decision on this issue, the Court could not possibly
comply with the suit.
3.
J. Beinortas and G. A. Paviržis, representatives of
the party concerned, explained in the Constitutional Court
hearing that the Law on Privatization of Apartments came
into being while realizing the idea that state-owned
property, accumulated in the housing fund, should be
transferred to the citizens. By virtue of this Law, 60 per
cent of the residents of Lithuania under preferential
conditions acquired the ownership right to residential
premises leased by them from the state and public housing
fund. Taking the status of the citizens of Lithuania
residing in hostels into account, the Seimas adopted the
amendment, permitting to privatize rooms in hostels as well.
The representatives of the party concerned have maintained,
that the University, as state institution of science and
studies, must abide by the Law on Science and Studies, in
Article 19 of which it is specified that institutions of
science and studies shall use State property in the
procedure established by the laws of the Republic of
Lithuania. The Law on Privatization of Apartments prescribes
the procedure of the disposition of this property
irrespective of the jurisdictional dependence thereof. It is
applied with respect to all the housing fund, formed by the
contributions of the citizens of Lithuania, i. e.
independently from the organization to which it has been
ascribed and which disposes of it. In the opinion of the
representatives of the party concerned, the Law on
Privatization of Apartments is in conformity with the
Constitution.
In the opinion of A. Taminskas, representative of the
party concerned, the Law on Privatization of Apartments does
not contradict the third part of Article 40 also due to the
following motives:
1. The Law on Privatization of Apartments was adopted
later than the statute of Vilnius University. Therefore, in
case of the competition of laws, a law which is enacted
later shall be in force, because it expresses the latest
will of the legislator. Furthermore, the Law on
Privatization of Apartments is special as it regulates only
specific (not general) legal relations of privatization
ensuing from the management, use and disposal of property.
2. The University manages, uses and disposes of
property given over thereto not by the rights of ownership
but property entrust. The rights of the state, as the only
owner of the property, are implemented by the body of
highest state power while adopting laws, executive acts, and
- in this particular case - ratifying the statute of Vilnius
University. Thus, the University must manage, use and
dispose of state property (hostels among them) under the
statute thereof, although without violation of the laws of
the Republic of Lithuania. The Law on Privatization of
Apartments is binding to all the subjects, the University
among them, because the latter disposes of its property only
in the procedure prescribed by laws.
3. Pursuant to the statute of Vilnius University,
this institution of higher education, having autonomy,
exercises the right of the inviolability of its territory
and buildings, and only the Supreme Council (Seimas, at
present) may change the boundaries of its territory and
seize the buildings, taking the opinion of the University
Council into account. On the assertion of the representative
of the party concerned, the University's autonomy does not
include the right to inviolability of buildings and
territory, because in item 1. 2. 1. of the statute of
Vilnius University these concepts are definitely separated.
The opinion of the University Council with respect to the
change of the territory and management of houses, may not
restrict the Seimas' implementation of the ownership rights
of the state - the owner of the property. Only in the event
that the issue concerning the transferral of state property,
given over to the University, to other state enterprises,
institutions, organizations or institutions of higher
education is resolved, this provision should be binding. In
the case of privatization of dwellings (hostels among them),
when the form of property is changed, the supreme body of
state power expresses its will on the issue of disposal of
state property by adopting a law thereof.
4. The Law on Privatization of Apartments has
provided the possibility for the residents of Lithuania to
acquire for private ownership under preferential conditions
residential houses, apartments and rooms in hostels leased
from the state ant public housing fund. The groundless
deprivation of the right, possessed by the employees of
institutions of higher education, to privatize the leased
room in the employees' hostels, would restrict the rights of
the employees of the institutions of higher education and,
actually, would legalize discrimination on the bases of his
or her occupation or social status (Article 29,
Constitution).
K. Motieka, representative of the party concerned has
explained that, according to the Constitution, the State
does not regulate the issues concerning the management and
disposal of property given over to the institution of higher
education. Buildings, hostels of the institution of higher
education among them, are within the scope of higher school
autonomy. Autonomy - is some sort of self-government,
established by law which must be observed. The University's
autonomy and the right to dispose of buildings is strictly
defined by the statute of Vilnius University, under which
the issues must be resolved only by the University Council
and Senate. The State, having delegated to the University
the right to dispose of property, may seize it only in the
procedure prescribed by laws and without violation of the
statute of the University.
Institutions of science and studies use the property
belonging to them in the procedure established by the laws
of the Republic of Lithuania. All laws are binding to the
University, with the exception of those which determine
special procedure of their implementation. While privatizing
the University hostels, the statute of Vilnius University,
which has the power of law, must be applied, because the Law
on Privatization of Dwelling is applied to the whole state
housing fund, with exception of autonomous institutions of
higher education.
In the opinion of K. Motieka, representative of the
party concerned, neither the statute of Vilnius University,
affirmed by law, nor the Law on Privatization of Apartments,
contradict the Constitution. Both laws are in effect and
have different clearly defined spheres of their validity,
thus, the norms of University's autonomy may not be
regulated by the norms of the Law on Privatization of
Apartments.
The Constitutional Court
holds that:
1. In the third part of Article 40 it is established
that: "Institutions of higher learning shall be granted
autonomy".
Historically, the idea of the autonomy of the
institution of higher learning came into being in the Middle
Ages, when universities originated as establishments of
science and studies. The autonomy meant that the university,
to a certain extent, was independent from the state,
striving to dissociate itself from the influence of
political power, to create an independent system of
regulation of internal activities within the institution of
higher education. The purpose of such dissociation from the
state power was to safeguard the freedom of science,
research and teaching, to protect researchers and professors
from political influence. The development of the academic
autonomy has always been predetermined by the understanding
that science and teaching may normally exist and induce
progress only when they are free and independent. Thus
appeared the principle of academic freedom, which expressed
the striving to protect the researchers' and teachers'
freedom of scientific thought and its expression from
outward influence. Traditionally, the autonomy of the
institution of higher learning is conceived as the right to
independently determine and establish in the regulations or
statute the organizational and governmental structure,
relations with other partners, the order of research and
studies, academic syllabus, the order of student enrolment,
to resolve other related questions, to use the property
given over by the state as well as newly acquired, to
possess the territory and buildings as well as other
property, allotted for the needs of research and studies, to
have the guarantee of inviolability. For this purpose, the
institution of higher learning is guaranteed the
institutional autonomy, i. e. certain status, which means
that there are certain spheres of activities, independent
from the control of the executive power.
2. The Magna Charta (1988) of universities declares,
that the foundation of cultural, scientific and technical
advancement of mankind is being created in such centres of
culture, cognition and research as true universities. In
order the university could meet the needs of modern world,
its research and scientific activity must be morally and
intellectually independent from any political, ideological
and economic authority. (The Underlying Principles, Article
1). All this presupposes a particular status of the
University in the state and society.
3. The spheres of activities of the institutions of
higher learning, which are independent from the influence
and control of governmental institutions and officials, are
determined by the legislator. The latter thereby restricts
his own powers with respect to those spheres. In the states,
where academic autonomy is established in the constitutions,
it is the constitutional provision concerning the autonomy
of the institution of higher education, which obligates the
legislator to restrict his powers.
Upon the restoration of independent state of
Lithuania, said provision was affirmed in the Provisional
Basic Law. This meant the continuity of the tradition of the
Lithuanian State to recognize the university's academic
autonomy. The principle of the autonomy of the institution
of higher learning was also established in the 1992
Constitution of the Republic of Lithuania. It was
particularized in the Law on Science and Studies as well as
statutes of institutions of higher education, ratified by
the Parliament. These legal acts reveal the contents of
academic freedom, set forth the independent from
governmental control spheres of activities of the
institutions of higher education, establish the contents of
self-government, define the procedure of transferral of the
state property to the institutions of higher learning and
determine the guarantees of the use of said and another
property of these institutions.
4. In a democratic law-governed state the power is
vested in the People. The People shall exercise the supreme
sovereign power vested in them either directly or through
their democratically elected representatives. Implementing
the state power, the legislator shall enact laws, which are
primary acts of law, expressing the will of the legislator
and having the supreme legal power. The subjects, to whom
the autonomy is guaranteed by the state, also get into the
scope of legal regulation. However, a newly adopted law may
not restrict or impair those guarantees of self-government,
which are established in the Constitution and
particularized in the laws. The State must guarantee the
inviolability of the right of independent scientific
activity in the institutions of higher education, and ensure
due material and financial conditions for said activity.
The right of the state to regulate external affairs
of the institution of higher learning does not contradict
the autonomy unless it impairs the freedom of research and
teaching in the institution of higher education. Besides,
the freedom of the institution of higher learning to adopt
decisions, based on institutional autonomy, does not mean
that these decisions may establish the priority of
institutional interests with regard to individual rights in
the case that it would cause discrimination of persons. Laws
governing general public relations are valid with respect to
the University as well as to any other institution of higher
education.
5. After the restoration of independent state of
Lithuania and restitution of the constitutional institute of
private ownership right, laws on privatization of state and
public property were adopted in Lithuania. Privatization of
Apartments was one of the main directions of the state's
social policy.
On 28 May 1991, the Law of the Republic of Lithuania
on Privatization of Apartments established the right to the
residents of Lithuania to acquire for private ownership
residential houses, apartments in many-flat houses and
hostels, leased from the state and public housing fund.
However, part of the residents of Lithuania, living in
hostels, could not privatize residential premises that did
not meet the requirements set for the dwelling units. The
residents were generally provided with dwellings pursuant to
labour relations, although persons leasing rooms in hostels
on said basis, upon privatization of residential premises
found themselves in different legal status than persons who
lived in houses or flats leased from the state and public
housing fund.
The Law adopted in the Seimas on 15 July 1993
appended the Law on Privatization of Apartments, entered
hostel apartments into a list of objects subject to
privatization, excluding those allotted for the pupils,
students, graduates and post-graduates of secondary,
vocational, further and higher education, as well as rooms
in hostels belonging to the Union of the Blind and Weak-
sighted, Society for the Deaf and Society of the Disabled.
Thus, the legislator expanded the list of persons entitled
to the right to privatize the dwelling belonging to the
state and public housing fund.
By this norm, the legislator determined that rooms in
hostels, allotted to students and post-graduates, i. e.
persons, who are related to the institution of higher
education only by temporary research and learning relations
and residing in hostels only for some time, shall not be
subject to privatization. Persons, who were settled in
hostels of the institutions of higher education on the basis
of permanent labour relations, acquired the right to
privatize the apartment under lease. In this respect, said
persons were given equal rights with the employees of the
enterprises, establishments and organizations, also residing
in hostels.
6. In Articles 12 and 19 of the Law on Science and
Studies it is set forth that the State shall transfer state
property to the state institution of science and studies for
possession and utilization, upon the act of establishment or
registration of said institution, in the procedure
established by the laws of the Republic of Lithuania. Under
the Civil Code, the property transferred to the state
institution is public property and remains the object of the
state-owned property (Articles 97 - 98-1). However, the
State may not violate the procedure of the disposition of
property, which is established in legal acts in force. All
statutes of the institutions of higher education, that have
been approved up to now, provide for the guarantee for the
institution of higher education to the right of
inviolability of the territory and buildings transferred by
the state in the prescribed procedure. These provisions of
legislators confirm the fact, that the protection of the
property belonging to universities and other institutions of
higher learning should be given special attention by the
State. While setting special rules for the protection of
said property, the fact, that the property given over for
universities and other institutions of higher learning is
the material basis for the implementation of freedom of
science and studies, should be taken into consideration. The
boundaries of the territories of the institutions of higher
education, jurisdictional dependence of buildings may be
changed or they may be seized only taking the opinion of
University Council into account. The provision that the
opinion of University Council should be regarded while
seizing the buildings, is also established in the statute of
Vilnius University (item 1. 2. 2.).
By adopting supplements to the Law on Privatization
of Apartments of 15 July 1993, an attempt was made to retain
the uniform provision in the sphere of privatization of
property. However, this does not mean that an institution of
higher education, its scientific and learning interests may
be denied by the power legislator. Taking the fact, that the
scope of legislator's powers shall be defined by the
Constitution (Article 5), into consideration, the legislator
may not adopt decisions, that would restrict the freedom of
science, research and teaching, established in Article 42 of
the Constitution, as well as autonomy granted to
institutions of higher learning by Article 40 of the
Constitution. Therefore, the Seimas, taking the
constitutionally prescribed autonomous status of
institutions of higher learning into account, provided for
exception in the cases when privatization of rooms in
hostels might influence the scientific and learning
interests, i. e. the Law prohibited privatization of
hostels, allotted for students and post-graduates (also for
residents, pursuant to amendments to the Law on
Privatization of Apartments, adopted on 19 May. 1994).
Cases when the dwelling unit in a hostel of the
institution of higher education is allotted for permanent
employees of said institution, should be regarded
differently. The legal status of these persons according to
the laws on apartments is analogous with the status of
persons residing in the hostels of other enterprises,
establishments and organizations. The explanation that,
taking the jurisdictional dependence of these hostels into
consideration, different rules of privatization of hostels
should be applied, is not grounded and contradicts the
principle of all people's equality before the law,
established in Article 23 of the Constitution. The
privatization of hostels belonging to the institutions of
higher education, inhabited by permanent employees of these
schools, does not violate the institution's freedom in the
sphere of science, research, teaching and self-government.
The legislator, while establishing the possibility to
privatize such hostels, resolved consistently the general
issue, which does not belong to a specific sphere of
autonomy of the institution of higher education.
It should be noted that, by way of implementing the
provisions of the Law on Privatization of Apartments, part
of residential premises in hostels have already been
privatized, on the consent of institutions of higher
education, Vilnius University among them. While denying the
right of employees, having permanent labour relations with
the institution of higher learning, to privatize the
dwelling in hostels, their civil capacity would be
unlawfully restricted.
If supplements of 15 July 1993 to the Law on
Privatization of Apartments were interpreted as a basis for
seizing and giving over of University buildings, the fact
that the legislators were aware of the opinion of the
University Council, must not be disregarded. As the
shorthand record of the Seimas sitting of 13 July 1993, in
which amendments to said Law were considered, can prove, the
opinion of the University Council, expressed in the
resolution of 10 January 1992, has been submitted to the
Seimas.
Pursuant to the above mentioned motives, the
Constitutional Court has drawn the conclusion that the norms
of the Law of the Republic of Lithuania on Privatization of
Apartments, permitting to privatize rooms in the hostels of
institutions of higher education, inhabited by permanent
employees of the schools, are in conformity with 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 the norms of the Law on
Privatization of Apartments, establishing the privatization
of rooms in hostels of the institutions of higher education,
do 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 Vladas Pavilonis
Pranas Vytautas Rasimavičius Stasys Stačiokas
Teodora Staugaitienė Stasys Šedbaras
Juozas Žilys