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