Case No 11-1993/9-1994
THE CONSTITUTIONAL COURT
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of item 4, Part 2, item 2 of the
Law of the Republic of Lithuania "On Amending the Law "On
the Procedure and Conditions of the Restoration of the
Rights of Ownership to the Existing Real Property" ",
adopted 12 January 1993, by which item 2, Part 2, Article 8
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 amended, and sub-item 4,
item 2 of the Law of the Republic of Lithuania "On Amending
and Appending 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" of 11 January 1994,
by which the second part of Article 8 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 4, with the Constitution of the
Republic of Lithuania
15 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 - Rolanda Stimbirytė,
the petitioner - Andrius Kubilius and advocate
Narcizas Rasimavičius, representatives of a group of the
Seimas members,
the party concerned - Seimas member Pranciškus
Vitkevičius and Algirdas Taminskas, representatives of a
group of the Seimas members,
pursuant to Part 1, Article 102 of the Constitution
of the Republic and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its
public hearing of 6 June 1994 conducted the investigation of
Case No 11-1993/9-1994 subsequent to the petition submitted
to the Court by a group of the Seimas of the Republic of
Lithuania members requesting to investigate if item 4, Part
2, item 2 of the Law of the Republic of Lithuania "On
Amending the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" ", adopted 12 January 1993, by which item 2, Part
2, Article 8 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 amended, is
compliance with the Constitution of the Republic of
Lithuania, as well as the petition submitted to the Court by
the College of Civil Cases of the Supreme Court requesting
to investigate if item 4, Part 2, item 2 of said Law of 12
January 1993 and sub-item 4 of item 2 of the Law of the
Republic of Lithuania "On Amending and Appending 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"" of 11 January 1994, by which the
second part of Article 8 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 4, is in compliance with the Constitution
of the Republic of Lithuania.
The requests of a group of the Seimas members and the
Panel of Civil Cases of the Supreme Court have been joined
into one case on the decision of the Constitutional Court,
adopted on 27 May 1994.
The Constitutional Court
has established:
On 18 June 1991 the Seimas passed the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" (hereinafter it
shall be referred to as "Law"), in the first and second
parts of Article 8 entitled "Conditions and Procedures for
the Restoration of Ownership Rights to Residential Houses"
of which it is determined: "The ownership rights to
residential houses (or portion thereof) shall be restored to
persons specified in Article 2 of this law by returning the
actual houses (or a portion thereof), or by compensating
their value.
The procedure and time limits for the restoration of
residential houses (or portions thereof) which do not fall
under the category of houses defined in Article 14 of this
Law, shall be established by the Government of the Republic
of Lithuania, pursuant to the provision that the residential
houses shall be returned in the case that:
1) they are reconstructed into premises not designed
for living or if they are vacant;
2) tenants, occupying houses subject to being
returned, and which are occupied by more than one family,
are familiar with all the laws guaranteeing their rights,
and with their option to move under the conditions proposed
by the local government and set forth in Article 21 of this
Law, or under other conditions guaranteed by the former
owner of the house;
3) the residential house consists of a single
dwelling unit;
4) the former owners reside in the house which is
subject to being returned" (Official Gazette "Valstybės
}inios", No 21-545, 1991).
The 7 May 1992 Law "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"" has appended the second part of
Article 8 of said Law by item 5: residential houses shall be
returned in the case that "the residential house belonging
to the state or public housing fund, together with equipment
(with the exception of those already sold by the former
owner), is on agricultural or forest land" (Official Gazette
"Valstybės žinios", No 15-405, 1992).
On 12 January 1993 the Seimas adopted the Law "On
Amending the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" ' (hereinafter it shall be referred to as "the 12
January 1993 Law"), which presented a new wording of Article
8 of the Law On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property"(Official Gazette "Valstybės Žinios", No 5-83,
1993). The previous norm of item 2 of the second part of
this Article has been transferred into item 4 of the same
part, and presented in the following way: the procedure and
time limits for the restoration of residential houses (or
portions thereof) shall be established by the Government of
Lithuania, pursuant to the provision that the residential
houses shall be returned in the case that "tenants,
occupying houses subject to being returned, consent to move,
at their own will, into other residential premises allotted
to them.
The petitioner - a group of the Seimas members -
requests the Constitutional Court to recognise that said
norm of the Law contradicts Article 23 of the Constitution.
The petitioner bases the request on the fact that said
Article of the Constitution establishes inviolability of
property as well as the provision that the rights of
ownership shall be protected by law. While establishing the
option of tenants to move into other residential premises
allotted to them, as the prerequisite for the restoration of
residential houses, the Seimas violated Article 23 of the
Constitution, i. e. refused to protect the rights of
ownership by law and subjected the realization of these
rights to the will of the leaseholder.
The petitioner's representatives have explained that:
the norm of the Law that the residential houses shall be
returned in the case that "tenants, occupying houses subject
to being returned, consent to move, at their own will, into
other residential premises allotted to them", contradicts
the constitutional provision that the rights of ownership
shall be protected by law. In the case that the tenants
disagree to move into other residential premises allotted to
them, the dwelling house is not restored to the owner and
the latter is paid due compensation. The tenant's agreement
or disagreement to move into other residential premises is
groundlessly put on the same footing as the needs of society
mentioned in Article 23 of the Constitution.
Tenants are not to be blamed for the present
situation as they have been moved into those flats by the
former Government. For this reason, the 16 July 1991
Resolution of the Supreme Council of the Republic of
Lithuania regarding 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" provided for
certain privileges for said persons, in case problems
concerning the dwelling arose. The Government at that time
provided for the sources of funds necessary for the
construction of dwelling units, however, after the elections
of 1992, different policy has been pursued.
The petitioner's representatives have specified that in the
explanations of the representatives of the party concerned,
submitted to the Constitutional Court, it is misinformed
that even prior to the adoption of the amendment to the Law
in dispute, the restoration of the residential houses was
related to the tenant's free will to move into other
residential premises allotted to him. Then it was
established that the tenants were given the option to move
into another dwelling unit, thus, their rights were not
violated. If, upon the restoration of the rights of
ownership, tenants did not desire to move, the problem could
be solved pursuant to the norms of civil law.
The petitioner's representatives request to
recognise that item 3 of the second part of Article 8 of the
Law (item 4 of the second part of Article 8 of the Law, at
the time the petitioner applied to the Constitutional Court)
contradicts the Constitution of the Republic of Lithuania.
On 11 January 1994 the Seimas adopted the Law "On
Amending and Appending 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 it shall be referred to as "the 11 January 1994
Law"), by which the contents and sequence of norms of
Article 8 of the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" has been amended and appended (Official Gazette
"Valstybės Žinios", No 7-100, 1994). Subject to these
amendments, the first and second parts have been formulated
in the following way:
"The ownership right to residential houses (or
portion thereof) shall be restored to persons specified in
Article 2 of this Law by returning the actual houses (or
portion thereof), or by compensating their value.
The procedure and time limits for the restoration of
residential houses (or portion thereof) shall be established
by the Government of the Republic of Lithuania, pursuant to
the provision that the residential houses shall be returned
in the case that:
1) they are reconstructed into premises not designed
for living or if they are vacant;
2) they are not given over to institutions of
science, medical care, culture, education and communication;
3) tenants, occupying houses subject to being
returned, consent to move, at their own will, into other
residential premises allotted to them;
4) natural persons, having acquired for ownership
houses (or portion thereof) subject to restoration, consent
to move, at their will, into other residential premises
allotted to them;
5) the former owners reside in the house which is
subject to being returned (in the event that former owners
occupy part of the house, this part is unconditionally
returned to them);
6) residential houses along with equipment which have
been transferred by the state, public, co-operative
organizations (enterprises) as well as collective farms for
the ownership of natural persons, (with exception of those
transferred by the owners themselves), are on agricultural
or forest land subject to restoration".
The petitioner - Panel of Civil Cases of the Supreme
Court - on 31 January 1994 investigated a civil case
pursuant to the action by E. Aleinikovienė and D. Didvalienė
brought against Šiauliai City Council, Mr. K. Kriščiūnas and
Mr. B. Abromavičius, pertaining to the recognition of
contracts of sale of dwelling units as null and void,
restoration of the rights of ownership to a portion of the
residential house and returning this house in kind.
The Panel of Civil Cases by its ruling suspended the
investigation of the civil case and addressed the
Constitutional Court with the request to investigate if
items 3 and 4 of the second part Article 8 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" are in conformity with Article 23 of the
Constitution. The Panel of Civil Cases bases its request on
the fact that the procedure and conditions for the
restoration of residential houses (or portions thereof),
which is a matter in dispute in the case under investigation
in Court, are established in Article 8 of said Law. In
accordance with items 3 and 4 of the second part of this
Article, the restoration of the actual property is subjected
to the consent of tenants or other persons to move into
other premises. These legal norms restrict the owner's right
to demand and obtain property which he has stopped managing
against his will. This has provided the ground for the Court
to maintain that said norms contradict Article 23 of the
Constitution.
The representatives of the party concerned have
explained: the issue of contradiction to Article 23 of the
Constitution may be raised only with regard to such a law,
which establishes the possibility to violate the ownership
rights. Persons specified in Article 2 of the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" may not be
considered as owners whose rights have been violated,
because no act of restitution, providing for the
unconditional restoration of property for the former owners,
has been adopted in the Republic of Lithuania. Besides, in
case that these persons were regarded as owners whose rights
have been violated, it would be recognized that the main
provisions of the Law "On the Procedure and Conditions of
the Restoration of the Rights of Ownership to the Existing
Real Property" contradict Article 143 of the Civil Code as
well as other legal norms regulating the protection of
ownership rights.
In the opinion of the representatives of the party
concerned, the 12 January 1993 Law actually has not changed
the former norm of item 2 of the second part of Article 8 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 specified that residential houses shall
be returned in the case that "tenants, occupying houses
subject to being returned, and which are occupied by more
than one family, are familiar with all the laws guaranteeing
their rights, and with the option to move under the
conditions proposed by the local government and set forth in
Article 21 of this Law, or under other conditions guaranteed
by the former owner of the house". This norm of the Law did
not mean, however, that it was sufficient to familiarise
tenants, occupying houses subject to being returned, with
their option to move into other residential premises. In
resolutions of the Supreme Council and the Government of the
Republic of Lithuania, with regard to the period of
enforcement and application of said Law it was determined,
that tenants occupying houses subject to restitution, shall
be informed of their option to move, at their own will, by
settling on a dwelling unit allotted to them which complies
with the requirements set forth in Article 94 of the Housing
Code of the Republic of Lithuania.
However, the main problem was not given due attention
at that time, i. e. real possibilities to build as many
houses as it would suffice to provide all the tenants made
to move from the houses subject to restoration to former
owners. Therefore, the disputed by the petitioner provision
of the 12 January 1993 Law, that the actual houses shall be
returned to the former owners in the case that tenants,
occupying houses subject to being returned, consent to move,
at their own will, into other residential premises allotted
to them, was preconditioned by the necessity to protect the
leaseholders' rights. That was the public interest. Besides,
tenants, occupying houses subject to being returned, as well
as other tenants residing in houses belonging to state or
public housing funds, have been provided with the
possibility to privatize dwelling units they possess.
The representatives of the party concerned have
specified that the Law "On the Procedure and Conditions of
the Restoration of the Rights of Ownership to the Existing
Real Property" on 11 January 1994 was appended by the norm
that "residential houses shall be returned in the case that
natural persons, having acquired houses (or portions
thereof) subject to being restored, consent to move, at
their own will, into other residential premises allotted to
them". It would not have been necessary to adopt it, if
courts had acted in compliance with the provision of Article
1 of the Law, specifying that "this Law shall legislate the
procedure and conditions of the restoration of the right of
ownership to the citizens of the Republic of Lithuania to
the property which was nationalized under the laws of the
USSR (Lithuanian SSR), or which was otherwise socialized,
and which, on the day of enactment of this Law, is
considered the property of the state, of the public, of co-
operative organizations (enterprises), or of collective
farms", and it shall not regulate the restoration of
ownership rights to the property which is the private
ownership of individuals.It came out, that the former
owners, having already acquired houses (or portions thereof)
subject to being returned, found themselves in worse
position than the tenants who since the moment they moved
over were protected by the provision that they had the
option to move at their own will.
The representatives of the party concerned have
stated, that the 11 January 1994 Law expanded the rights of
the former owners. They got entitled to the right to receive
compensation for the houses they had passed, which had to be
paid out within 10 years, also they acquired the right to
restoration for ownership the residential houses together
with equipment thereof provided that they are on
agricultural land subject to being returned, irrespective of
the fact whether these houses along with equipment are
considered the property of the state, of the public, of co-
operative organizations (enterprises) or whether they are
transferred by said organizations and collective farms for
the ownership of natural persons.
In the opinion of the representatives of the party
concerned, all former property relations are not possible to
restore. The changes which have taken place, public
interests, as well as social purpose of property ought to be
taken into consideration.
Pursuant to the above mentioned arguments, the
representatives of the party concerned requested to
recognize that items 3 and 4 of the second part of Article 8
of the Law are in conformity with Article 23 of the
Constitution.
The Constitutional Court
holds that:
On 11 March 1990 the Supreme Council of the Republic
of Lithuania adopted the Act on the Restoration of the
Independent State of Lithuania and thereby proclaimed that
the Constitution of any other State had no jurisdiction
within it. The Supreme Council by the Law "On the
Reinstatement of the May 12, 1938 Lithuanian Constitution",
passed on the same day, annulled "the April 20, 1978
Constitution of Lithuania, the October 7, 1977 USSR
Constitution, as well as the fundamentals of legislation of
the USSR and Union republics, and other USSR legislation in
the Republic of Lithuania, suspending those paragraphs and
articles governing the status and powers of the President of
the Republic, the Assembly, the State Council and the State
Supervisory body. Chapter 8 "National Economy", containing
regulation of property relations, was not suspended. This
meant restoration of the institute of the right of private
ownership.
On 11 March 1990 the Supreme Council ratified the
Provisional Basic Law of the Republic of Lithuania. In
Article 44 thereof it was set forth that the economy of
Lithuania shall be based on the property of the Republic of
Lithuania, which shall consist of the private property of
its citizens, the property of groups of citizens, and state
property. Thereby, the continuity of the institute of the
right of private ownership, present in former Constitutions
of Lithuanian State, was confirmed.
Upon overall nationalization and alienation of
private property in other unlawful manner, carried out by
the occupation government, the human natural right to posses
private property was denied. The establishment of the
institute of the right of private ownership in the
Provisional Basic Law meant determination of the state to
protect this human right. However, legal relations based on
private ownership right, which had been terminated by force,
were not reinstated by said legal acts. In the preamble to
the Law "On the Provisional Basic Law of the Republic of
Lithuania" the Supreme Council stressed the necessity of
bringing the provisions into accord "with today's changing
political, economic and other social circumstances".
While realizing the constitutional provision of the
continuity of ownership rights, the Supreme Council on 5
November 1990 confirmed the statement that the recognition
of the continuity of ownership rights of the citizens of
Lithuania is undeniable and formulated its implementation in
the following way: "To establish that citizens of Lithuania
have the right to restore the actual property they were
entitled to in the scope and procedure established by laws,
and in the case that there is no possibility to recover the
actual property, to get compensation for it." The
realization of said provisions proclaiming restricted
restitution was determined in the Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership to
the Existing Real Property", adopted on 18 June 1991. In the
first part of Article 1 thereof it is set forth that: "This
Law shall legislate the procedures and conditions of the
right of ownership to the citizens of the Republic of
Lithuania to the property which was nationalized under the
laws of the USSR (Lithuanian SSR), or which was otherwise
unlawfully socialized, and which, on the day of enactment of
this Law, is considered the property of the state, of the
public, of co-operative organizations (enterprises), or of
collective farms".
Pursuant to this Law, ownership rights shall be
restored not for all former owners and not to all the
property they possessed. Mass character of violations of
ownership rights, committed by the occupation government,
new property relations as well as other objective
circumstances having stipulated only restricted
restitution, predetermined the situation when the impaired
ownership rights could not be protected under the norms of
the Civil Code in force. Therefore, special procedure and
conditions for the restoration of the rights of ownership
were determined in the Law "On the Procedure and Conditions
of the Restoration of the Rights of Ownership to the
Existing Real Property". The Law guarantees the restoration
of ownership rights, and the conditions established thereby
are applied only in cases when the former owners desire to
recover the actual property. In the event when there is no
possibility to restore the existing real property in kind
for the former owner, due compensation also ensures the
restitution of ownership rights (Constitutional Court Ruling
of 27 May 1994).
It is essential that the conditions set forth in the
Law, due to which the actual property might not be restored,
would not contradict the constitutional provisions
protecting property. However, taking the fact that the
restoration of ownership rights, terminated during
occupation period by force, inevitably influence the
existing system of social and legal relations, into account,
this process must go on bringing into accord the lawful
interests of former and present owners of the same property
as well as tenants, occupying the houses subject to being
restored.
On the compliance of item 4 of the second part of
item 2 of the Law of the Republic of Lithuania ""On Amending
the Law "On the Procedure and Conditions of the Restoration
of the Rights of Ownership to the Existing Real Property""
of 12 January 1993, by which item 2, Part 2, Article 8 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 amended, with the Constitution of the
Republic of Lithuania.
The 12 January 1993 Law has amended Article 8 of the
Law "On the Procedure and Conditions of the Restoration of
the Rights of Ownership to the Existing Real Property". The
norm of item 2 of the second part was transferred into item
4 of the same part (item 3, after the amendment of 11
January 1994 Law), which establishes that residential houses
(or portions thereof) shall be returned in the case that
"tenants, occupying houses subject to being returned,
consent to move, at their own will, into residential
premises allotted to them".
Residential houses were nationalized or otherwise
unlawfully socialized under the 31 October 1940 Decree of
the Presidium of the Supreme Council of the Lithuanian SSR
and other governmental acts. Residential houses, which were
nationalized or otherwise unlawfully socialized, passed
under the factual management of local administration,
various state and public organizations. Premises fit for
residential use were ascribed to the state or public housing
fund and allotted to the residents. Persons, to whom
dwelling units were allotted in nationalized or otherwise
unlawfully socialized residential houses, utilized these
premises pursuant to lease contracts. Therefore, legal
evaluation of existing lease relations is significant while
resolving issues concerning the restoration of such houses
to the former owners.
In civil law a tenant of a dwelling unit is
considered a person who concludes a lease contract of a
dwelling, and a lessor is the owner of a dwelling or a
person managing it on other grounds. One of the rules of the
lease contract is that the lessor is not necessarily the
owner of the leased property, however, this property must be
physically and economically managed by said subject on the
bases prescribed by laws, and this entitles him the right
to influence property in a certain way, for example, to
lease it for other persons. The lessor must himself meet the
conditions of contract as well as take lawful measures with
regard to third parties, whose actions prevent the tenant
from using the leasehold (e. g. they declare having
ownership rights to the leasehold property).
The transition of ownership rights to another person
generally is not a ground for changing or breaking the lease
contract of property. In such cases, rights of obligation of
the real property leaseholder acquire the characteristics of
real rights, thus, providing the tenant with the possibility
to preserve and protect the rights ensuing from the lease
contract against the third persons, consequently against the
new owner as well. These provisions of civil law
safeguarding the rights of tenants confirm that the right of
tenants, occupying the houses subject to being returned to
former owners, must be protected. While regulating the
restoration of the ownership rights to residential houses,
the housing lease relations, which have been formed over
decades, must not be ignored, because it was not the tenants
but the occupation government who violated the human rights
of ownership. Therefore, the tenants must not bear the
obligation assumed by the state with regard to the former
owners. The rights of such tenants should be protected
providing guarantees to acquire other residential premises
at the expense of the state, as well as warranting the
stability and fair conditions of dwelling lease.
In item 2 of the second part of Article 8 it was
established that the ownership rights to residential houses
shall be restored by returning the actual houses (or
portions thereof) if they do not fall under the category of
the houses to be bought out by the State, in the case that
tenants, occupying houses subject to being returned, and
which are occupied by more than one family, are familiar
with all the laws guaranteeing their rights, and with their
option to move, at their own will, under the conditions
proposed by the local government and set forth in Article 21
of this Law, or under other conditions guaranteed by the
former owner of the house. In item 3 of the Supreme Council
Resolution "On the 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"" of 16 July 1991 it was specified
that: "The tenants occupying houses subject to restitution,
as defined in item 2 of the second part of Article 8, shall
be informed of their option to move, at their own will, by
setling on a dwelling unit allotted to them, which complies
with requirements set forth in Article 94 of the Housing
Code of the Republic of Lithuania". In this Article it was
established that in cases that citizens are made to move,
another suitably equipped and equivalent in size dwelling
unit must be allotted to them, which would meet the
requirements determined in Articles 42 and 43 of the Housing
Code, i. e. must be equipped according to the conditions of
locality and comply with sanitary-technical requirements,
etc.
12 January 1993 having amended the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" , when it was
established that residential houses (or portions thereof)
shall be returned in kind when tenants consent to move, at
their own will, into other residential premises allotted to
them, the previous condition (familiarizing the tenants with
their option to move, at their own will, under the
conditions proposed by the local government and set forth in
Article 21 of this Law, or under other conditions guaranteed
by the former owner of the house) was changed by the
tenants' consent to move, at their own will, by settling on
a dwelling unit allotted to them. Under this norm of the
Law, the tenant's refusal to move into other residential
premises, irrespective of the character and motives thereof,
may not be called in question.
In the law of obligation, upon alteration of
important circumstances, terms of the contract may be
changed in the cases and procedure prescribed by laws
without the will of the party to the contract. Therefore,
the necessity to restore the ownership rights, terminated by
the occupation government, justifies changes in housing
lease relations. In cases when restoring the ownership
rights of former owners to residential houses, tenants
occupying these houses are allotted other dwelling units,
which comply with the requirements prescribed by laws, it is
considered a sufficient measure employed to protect the
tenants' rights. The condition that, in cases when the
tenants do not agree to change the lease contract,
residential houses shall not be returned, set forth in the
January 1993 Law, is not in conformity with the provisions
of property protection established in Article 23 of the
Constitution.
It should be noted, that persons to whom ownership
rights to residential houses are being restored, had the
possibility to restore the actual houses under different
conditions (after the amendment of the Law they had to face
harder requirements than in the first period of its
validity). However, new requirements may not be applied to
the existing legal relations with the same contents , as it
would mean violation of person's equality before law.
Therefore, the amendment of the Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership to
the Existing Real Property" is flawed in this respect too.
On the compliance of sub-item 4 of item 2 of the Law
of the Republic of Lithuania "On Amending and Appending the
Law "On the Procedure and Conditions of the Restoration of
the Rights of Ownership to the Existing Real Property"" of
11 January 1994, by which the second part of Article 8 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 4, with the
Constitution of the Republic of Lithuania.
The Seimas by the 11 January 1994 Law has appended
item 1 of the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" by the provision that this Law shall also
legislate the restoration of ownership rights to the
existing real property which was nationalized or otherwise
unlawfully socialized, and which was given over for the
ownership of natural persons by the state, public, co-
operative organizations (enterprises) or collective farms.
Thereby, it was established the right for the former owners
to restore ownership rights to residential houses (or
portion thereof), given over by said organizations for the
ownership of natural persons, i. e. to restore the actual
houses or receive due compensation.
The Seimas, by the 11 January 1994 Law has also
appended the second part of Article 8 of the Law by item 4
which establishes that: "natural persons, having acquired
for ownership houses (or portions thereof) subject to being
returned, consent to move, at their own will, by settling on
a dwelling unit allotted to them".
Property relations, like other civil legal relations,
appear, change and end upon the occurrence of certain
juridical facts. Juridical facts, that serve as causes for
emergence of property relations, are generally as follows:
the production of a new thing by manufacturing or some other
activity, acquisition of property on contracts, obtaining
results and gaining profit. In item 4 of the second part of
Article 8 of the Law mention is made of persons, to whom
residential houses have been transferred by the state,
public, co-operative organizations (enterprises) or
collective farms. The right of transferral of property to
other persons (to dispose of property) is given to the
former owner or authorized by him persons. However, lawful
state property could not and did not appear on the basis of
overall nationalization carried out by the occupation
government and other arbitrary acts. The property alienated
from people was only factually managed by the state
(Constitutional Court Ruling, 27 May 1994). As neither the
state nor legal persons, who at that time factually managed
the alienated property, did not own that property, they,
from the present perspective, could not dispose of that
property. However, pursuant to the Soviet normative acts,
which were in force at that time, and the procedure
prescribed thereby, the state, public and co-operative
organizations (enterprises) or collective farms could
transfer to natural persons residential houses (or portions
thereof), which were factually managed by them. In
accordance with the 13 March 1989 Resolution of the Council
of Ministers of the Lithuanian SSR and the Council of Trade
Unions of the Lithuanian Republic "On the sale for the
private ownership of citizens of dwelling units and houses
belonging to the state and public housing fund", tenants
were provided with the possibility to purchase not only
residential houses (or portions thereof) which were
nationalized or otherwise unlawfully socialized, but also
apartments in such houses.
Natural persons, while acquiring residential houses
(or portions thereof) on the contract, conformed to the
rules of conclusion of contracts established by normative
acts that were in force at that time, performed obligations
of the party ensuing from such contracts. Upon denial of
ownership rights which appeared on the basis of lawful
contracts, the contents of existing legal relations would be
changed. Therefore, while restoring the ownership rights to
residential houses transferred for natural persons by the
state, public and co-operative organizations (enterprises)
or collective farms, the rights of natural persons, who have
acquired such property, should be protected along with the
rights of the former owners.
The former owner's subjective rights are restored
only upon the recovery of property or paying out of due
compensation. The Law, however, entitles such a person to
the right to bring an action to the court asking to resolve
in civil procedure his or her request pertaining to the
restoration of the residential house (or a portion thereof),
which has been transferred for the ownership of natural
persons. Obligatory investigation in court of the issue
concerning the restoration of the actual house, conducted
upon such an action, confirms the provision of the Law that,
while restoring the ownership rights to the existing real
property, the priority is given to the returning of actual
property. However, it would not be fair to seize the
residential house (or a portion thereof) against the will of
the natural person, who has acquired it on the contract,
without violation of normative acts that were in effect at
the time of acquisition, and which is under the management
and disposition of this natural person, and to return it to
the former owner. While defending the rights of the former
owner, the rights of the present owner may not be denied in
non-dispute procedure. In case that there is no possibility
to return the residential house (or a portion thereof) for
the former owner without the consent of the present one, the
ownership rights, pursuant to the Law, may be restored to
him in other manner. Fair compensation also ensures the
restitution of ownership rights. Thus, there is no ground
for maintaining, that the norm of item 4 of the second part
of Article 8 of the Law contradicts the provisions of the
protection of property established in Article 23 of the
Constitution.
The above mentioned arguments of the Constitutional
Court are related to the ownership rights to residential
houses (or portions thereof), which had been acquired by
natural persons on the contracts prior to the enforcement of
the Law on Privatization of Dwelling, i. e. before 30 June
1991. In Article 3 of this Law it is determined that,
according to this Law, residential houses or dwelling units,
which have been seized, confiscated or nationalized by
administrative acts or in other manner from those citizens
of Lithuania who are entitled to the restoration of
ownership rights under Article 2 of the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" , shall not be
sold. On 9 December 1993, the Law on Privatization of
Dwelling was appended by the provision that residential
houses and dwelling units may be sold provided that the
owner consents to receive compensation for the house subject
to being returned on the decision of city or district board.
Therefore, after the enforcement of the Law on Privatization
of Dwelling, the sale of residential houses or dwelling
units, disregarding the prohibition specified therein or
violating the conditions determined in the supplement of 9
December 1993 to this Law, may not be considered lawful.
However, in such cases it is not the contents of norms of
the Law but the application thereof, which causes
"unlawfulness". Disputes pertaining to the acquisition of
residential houses (or portion thereof) and apartments are
investigated in civil procedure.
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 passed the following
ruling:
1. To recognize that item 4 of the second part of
item 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" of 12 January 1993,
by which item 2 of the second part of Article 8 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 amended, contradicts Article 23 of the
Constitution of the Republic of Lithuania.
2. To recognize that sub-item 4 of item 2 of the Law
of the Republic of Lithuania "On Amending and Appending 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""' of 11 January 1994, by which
the second part of Article 8 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 4, is in compliance with 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