Case No 12/93
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the parts of item 3 of the Law
of the Republic of Lithuania "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" ", adopted 15 July 1993, by
which Parts 5 and 6 of Article 4 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
have been amended, as well as items 14, 15, 16, 17, 18 and
19, by which Article 12 of said Law has been appended by
items 10, 11, 12, 13, 14 and 15, with the Constitution of
the Republic of Lithuania
27 May 1994, Vilnius
The Constitutional Court of the Republic of
Lithuania, composed from the Justices of the Constitutional
Court Algirdas Gailiūnas, Kęstutis Lapinskas, Zigmas
Levickis, Pranas Vytautas Rasimavičius, Stasys Stačiokas,
Teodora Staugaitienė, Stasys Šedbaras and Juozas Žilys,
the secretary of the hearing Sigutė Brusovienė,
the petitioner - Andrius Kubilius and Zenonas
Juknevičius, representatives of a group of the Seimas
members,
the party concerned - Seimas member Mykolas Pronckus
and Algirdas Taminskas, representatives of the Seimas,
pursuant to Part 1, Article 102 of the Constitution
of the Republic of Lithuania and Part 1, Article 1 of the
Law on the Constitutional Court of the Republic of
Lithuania, in its public hearing of 27 April - 3 May 1994
conducted the investigation of Case No 12/93 subsequent to
the petition submitted to the Court by a group of the Seimas
of the Republic of Lithuania members requesting to
investigate the compliance of the parts of item 3 of the Law
of the Republic of Lithuania "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" ", adopted 15 July 1993, by
which Parts 5 and 6 of Article 4 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
have been amended, as well as items 14, 15, 16, 17, 18 and
19, by which Article 12 of said Law has been appended by
items 10, 11, 12, 13, 14 and 15, with the Constitution of
the Republic of Lithuania.
The Constitutional Court
has established:
The petitioner - a group of the Seimas members -
requests the Constitutional Court to investigate if the
parts of item 3 of the Law of the Republic of Lithuania "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" "
(hereinafter this law shall be referred to as "the Law in
dispute"), adopted 15 July 1993, by which Parts 5 and 6 of
Article 4 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 have been amended, as well as
items 14, 15, 16, 17, 18 and 19, by which Article 12 of said
Law has been appended by items 10, 11, 12, 13, 14 and 15
(Official Gazette "Valstybės Žinios", 1993, No 32-275), do
not contradict the Constitution of the Republic of
Lithuania.
In the request, the petitioner specifies that, all
the conditions established in parts 5 and 6 of Article 4
which has been amended by the Law in dispute, may be applied
only upon the restoration of land so that it would not
remain uncultivated. Besides, in this Article claimants to
land are categorized according to the type of activities
(whether they are members of agricultural company or not),
and this is related to the right to the restoration of
property, even though, under Article 29 of the Constitution,
all people shall be equal before the law. The petitioner
maintains that the Seimas by supplements to Article 12,
which were made by the Law in dispute, "expanded the scope
of the land not to be returned, basing agriculture on
collective property, even though in Article 46 of the
Constitution it is established that Lithuania's economy
shall be based on the right to private ownership".
The petitioner's representatives have explained that
by the Act of 11 March 1990 the Independent State of
Lithuania has been restored. In this Act it is declared that
the territory of Lithuania is integral and indivisible, and
the constitution of any other State has no jurisdiction
within it.
In the Law "On the Reinstatement of the 12 May 1938
Constitution of Lithuania", the Supreme Council of the
Republic of Lithuania stated, that the May 12, 1938
Constitution of Lithuania had been suspended illegally when
on June 15, 1940 the Soviet Union committed aggression
against the independent state of Lithuania and ,thereby,
terminated the validity of the 20 April 1978 Constitution of
the Lithuanian SSR (Basic Law), the 7 October 1977
Constitution of the USSR (Basic Law), as well as the
fundamentals of the legislation of the USSR and Union
Republics, also other USSR legislation on the territory of
the Republic of Lithuania. The laws which had been adopted
on their basis lost their validity, Article 4 of the Land
Code of the Lithuanian SSR among them, in which it is
declared that: "In compliance with the Constitution of the
USSR and the Constitution of the Lithuanian SSR, land is
state property - common property of all the Soviet people".
In the Law "On the Reinstatement of the 12 May 1938
Constitution of Lithuania" it was determined that the
reinstatement of the 12 May 1938 Constitution of Lithuania
does not in itself re-establish other laws in effect in the
Republic of Lithuania prior to 15 June 1940. This provision
is significant because it has taken into consideration the
changes that took place, and the necessity on the basis of
these laws to regulate property relations by laws. Former
property relations are not denied.
Their undeniability was established in the provision
of the Supreme Council adopted on 15 November 1990: "To
determine that citizens of Lithuania are entitled to the
right to restore their existing property in kind in the
scope and procedure prescribed by laws, and in case when
there is no such possibility, to receive compensation".
Afterwards, in the first part of Article 1 of the 18
June 1991 Law "On the Procedure and Conditions of the Rights
of Ownership to the Existing Real Property" nationalization
of property was compared to its unlawful socialization, and
it was specified that property was not the ownership of
State, public or other organizations, but it was only at
their disposal. Therefore, the essence of the contents of
the first part of Article 45 of the Provisional Basic Law
was the establishment of sovereign powers of Independent
State of Lithuania on the whole territory of the State and
not the acceptance of the 21 June 1940 Declaration of the
People's Seimas on the Nationalization of Land.
In the opinion of the petitioner's representatives,
persons enumerated in the first part of Article 1 of the 18
June 1991 Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership to the Existing Real
Property" are still the owners, only their right of property
ownership has been infringed upon, i. e. they have been
deprived of the opportunity to use and manage the property.
Therefore, their property may be seized only in conformity
with the requirements set forth in Article 23 of the
Constitution.
In the opinion of the representatives of the
petitioner , Parts 5 and 6 of Article 4 of the Law in
dispute contradict Article 23 of the Constitution, as they
provide for the seizure of property i. e. factual
irretrievability in case when there is no public interest.
The legislator established formal obstacles which can be
overcome only by persons who have been given permission by
district Board or had had an exclusive social position in
the past.
The representatives of the petitioner have also
explained, that the obligatory land lease restricts the
owner's rights. This amendment to the Law in dispute also
fails to comply with the provision of Article 46 of the
Constitution that Lithuania's economy shall be based on the
right to private ownership, freedom of individual economic
activity, and initiative. Lease of land grants privileges to
the persons specified in the fifth part of Article 4 of the
Law in dispute on the basis of their social position, and
this contradicts Article 23 and 29 of the Constitution.
The petitioner's representatives maintain that the
supplements to Article 12 - items 10, 11, 12, 13, 14, and 15
- adopted by the Law in dispute contradict the first and
fourth parts of Article 46 of the Constitution, because they
establish monopoly in agriculture (support state farms) and
fail to protect freedom of fair competition.
The representatives of the petitioner have submitted
the following explanations concerning Article 12:
`1. The provision of item 10, Article 12 is not in
compliance with Article 46 of the Constitution, as it gives
preference to companies, i. e. collective economic activity
and makes the owner, to whom the rights of ownership to land
have not been restored yet, lease it for agricultural
enterprises without setting any terms. The needs of the
company are identified with the needs of society, therefore,
in this sense, the provision of item 10, Article 12 of the
Law in dispute fails to comply with Article 23 of the
Constitution as well.
2. By item 11 of Article 12, an attempt is made to
base Lithuania's economy on the right to collective (state)
ownership, as land areas specified in it are used for the
needs of companies and forest districts but not for the
interests of the whole state . By said item, the preference
is given to horses, and not to the needs of society.
3. According to item 12 of Article 12, the priority
goes not to the society, but to a specific enterprise. The
profit gained by a man or a specific enterprise is not the
need of society in the context of Article 23 of the
Constitution.
4. The provision of item 13, Article 12 that the land
shall be bought out for the usage of rural residents, means
common, collective and not private economic activity. In
rural settlements, land for the construction of residential
houses is bought out even without having construction
projects, the procedure of their confirmation and the
client.
5. Item 14 of Article 12 itself does not need any
motivation, because rivers and lakes may be, without any
criteria, ascribed by the Government to water bodies not
subject to privatization. Besides, it is not the restoration
of the rights of ownership which is regulated by this item,
but privatization.
Generally, rivers and lakes must be state property,
however, it is not the Government who should resolve this
issue.
6. By item 15 of Article 12, at the expense of the
owner, the boundaries of the land not liable to be returned
are extended, and it is going to be granted for farmers-
tenants, and not to satisfy the needs of the society. This
fact contradicts Article 23 of the Constitution, because the
land is bought out not for the public benefit but for the
advantage of a specific person.
The representatives of the party concerned have
denied the validity of the petitioner's request. They have
explained that from the very restoration of the Independent
Sate of Lithuania, i. e. after the Act of 11 March 1990, all1
laws and resolutions adopted by the Supreme Council of
Lithuania have been declaring that the entire land is state
property. For instance, in Article 4 of the 11 March 1990
Law "On the Reinstatement of the 12 May 1938 Constitution of
Lithuania" it is established that the reinstatement of said
Constitution did not in itself re-establish other laws in
effect in the Republic of Lithuania prior to 15 June 1940".
The representative of the party concerned has stated
that by the 11 March 1990 Law of the Republic of Lithuania
"On the Provisional Basic Law of the Republic of Lithuania"
the validity of the 12 May 1938 Constitution of Lithuania
was suspended, the Provisional Basic Law of the Republic of
Lithuania was ratified, and it was established that, on the
territory of the Republic of Lithuania, previous laws and
other legal acts of Lithuania would be further in effect,
providing they did not contradict the Provisional Basic Law
of the Republic of Lithuania.
In the first part of Article 45 of the Provisional
Basic Law it is determined that the land, its mineral
resources, inland and territorial waters, flora and fauna,
and other natural resources shall be the national wealth and
exclusive property of the Republic of Lithuania, whereas in
the first part of Article 46 it is specified that property
of the Republic of Lithuania that is state property may,
with or without compensation, become private property of
citizens or their groups according to the procedures
established by law.
In the opinion of the representatives of the party
concerned, provisions of the Provisional Basic Law in
respect of the competence of the Supreme Council to regulate
property relations in the Republic by legislative means, set
forth in item 4 of the second part of Article 78 of said
Law, establishes the state's right of ownership to land.
However, it may not be stated categorically that the owner
of the nationalized property is state. If property were its
ownership, it would have been sufficient to adopt a law
concerning its transferral to persons. However, the act of
unconditional restitution has not been adopted either,
therefore, it would not be proper to state that the rights
of former owners have been violated. On 18 June 1991, upon
the adoption of the Law "On the Procedure and Conditions of
the Rights of Ownership to the Existing Real Property",
restrictions were imposed. Besides, there are two groups of
such persons: (1) former property owners that are still
alive, (2) legitimate successors of former owners - their
children and grandchildren - although, not all of them can
be considered the owners whose rights have been violated.
The legislator by this Law has provided possibilities to
restore rights of ownership also for those persons whose
documents confirming their property rights have not survived
to these days. If there were no for such Law, the right of
ownership should be proved pursuant to Article 143 of the
Civil Code. The representatives of the party concerned
maintain that persons specified in Article 2 of the 18 June
1991 Law "On the Procedure and Conditions of the Rights of
Ownership to the Existing Real Property" are not the owners
whose rights have been violated, therefore, Article 23 of
the Constitution, which protects the rights of ownership,
is not applicable to them.
While evaluating the restoration of land in property
aspect, it was said that: 1) former land owners restore land
areas which are not debt-laden, though some of them were
debt-laden in the past, 2) recover considerably improved
land areas without paying to anybody for this improvement,
3) restoration is done at the expense of all the citizens of
Lithuania, 4) part of the former owners, having restored
land areas, destroyed the property which had been created by
common public efforts (watering equipment, etc.). Such
restoration of land contradicts Article 23 of the
Constitution.
The representative of the party concerned has also
specified that in Parts 5 and 6, Article 4 of the Law in
dispute "On Appending and Amending the Law of the Republic
of Lithuania "On the Procedure and Conditions of the Rights
of Ownership to the Existing Real Property" " the norm
concerning the land lease is established which ensures the
possibility to restore land for 160. 000 non-rural citizens.
The statement that land must be used for agricultural
purposes is based on the provision of the third part of
Article 46 of the Constitution that the State shall regulate
economic activity so that it serves the general welfare of
the people. If there were no for such restrictions, it would
not be possible to carry out the land reform. In
International Law not only the protection of property
rights is established, but also the right of the State to
control, for public interests, the use of property by laws.
While evaluating supplements to Article 12 of the 18
June 1991 Law "On the Procedure and Conditions of the Rights
of Ownership to the Existing Real Property", representatives
of the party concerned reasoned, that the public interest
for land to be used for orchards and berry-fields (item 10
of Article 12) as well as pig-breading complexes of
specialized companies (item 11 of Article 12) is due to
their economic effectiveness, and the amount of State funds
used. Items 10, 11, 12, 13, 14 and 15 have been formulated
in accordance with the provisions of Constitution that the
State shall regulate economic activity so that it serves the
general welfare of the people.
The Constitutional Court
holds that:
On March 11, 1990, the Supreme Council of the
Republic of Lithuania adopted the Act on the Restoration of
Independent State of Lithuania and declared thereby that the
execution of sovereign powers of the Lithuanian State,
heretofore constrained by alien forces in 1940, was
restored, and Lithuania was once again an Independent State.
It was also declared that the Constitution of any other
State had no jurisdiction within it.
The Supreme Council, by the 11 March 1990 Law "On the
Reinstatement of the 12 May 1938 Constitution" annulled the
20 April 1978 Constitution of the Lithuanian SSR (Basic
Law), also the fundamentals of legislation of the USSR and
Union Republics, as well as other USSR legislation in the
Republic of Lithuania". The Supreme Council by the same Law
reinstated "the 12 May 1938 Constitution of Lithuania
throughout the Republic of Lithuania, suspending those
paragraphs and articles governing the status and powers of
the President, the Seimas of the Republic, the Assembly, the
State Council and the State Supervisory body". The validity
of Chapter 8 of the 12 May 1938 Constitution entitled
"National Economy", by norms of which property relations are
regulated, was not terminated, and this meant the
restitution of the institute of the right of private
ownership.
The Supreme Council by 11 March 1990 Law "On the
Provisional Basic Law of the Republic of Lithuania
terminated the validity of the 12 May 1938 Constitution of
Lithuania and ratified the Provisional Basic Law of the
Republic of Lithuania. In the first part of Article 44 of
this Law it was established 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" .The
provision is significant primarily because of the fact that
the restitution of the institute of the right to private
ownership was established again, i. e. its continuity with
the constitutions of Lithuanian State was actually
recognized. Secondly, three forms of property that existed
and were recognized at that time in our State, were
enumerated in said Law. Thirdly, all three legalized forms
of property were joined under one concept: "Property of the
Republic of Lithuania". Therefore, the arguments on the
basis of which notions "property of the Republic of
Lithuania" and "state property" are identified, are
groundless, because it is the relation of the whole to its
part. Thus, the norm of the first part of Article 45 of the
Provisional Basic Law that "the land, its mineral resources,
inland and territorial waters, forests, flora and fauna, and
other natural resources shall be the national wealth of
Lithuania and the exclusive property of the Republic of
Lithuania", did not mean that these objects of property were
exclusive property of the State. It should be noted, that in
the Provisional Basic Law only mineral resources of the land
were declared to be the exclusive property of the Republic
of Lithuania.
Taking the fact that on 15 June 1940 to 11 March 1990
Lithuania was occupied, annexed and incorporated into
another state - the USSR - into consideration, on 11 March
1990 for the Supreme Council of primary importance was not
the precise establishment of the subjects, objects and forms
of property, but the constitutional dissociation from the
occupation state and its legal system, and detachment of the
State of Lithuania and its citizens from the unlawful
governing of the USSR. This was expressed by the wording of
Article 45 of the Provisional Basic Law that all the wealth
of Lithuania shall be its national wealth and the exclusive
property of the Republic of Lithuania, therefore,
jurisdiction of any other state shall not be applied to it.
Principles of independence that had been set forth in the
Act of the Restoration of Independent State of Lithuania,
were once again constitutionally established by his norm.
That meant return to economic system based on the right to
private ownership, from which Lithuania had been expelled by
force against its will.
The right to possess property is one of the most
significant human natural rights, and a person may not be
arbitrarily deprived of it. It may only be seized for the
needs of society according to the procedure established by
law. Such principle of the protection of property and rights
to property is also formulated in international legal
instruments. For instance, in the second part of Article 17
of the Universal Declaration of Human Rights it is
specified: "No one shall be arbitrarily deprived of its
property"; in the first part of Article 1 of the Protocol 1
pertaining to the European Convention for the protection of
Human Rights and Fundamental Freedoms it is maintained:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law".
The independence of the Republic of Lithuania was
destroyed by force, in realization of unlawful secret
agreements of 1939 between the USSR and Hitler's Germany.
The unlawfulness of these agreements and their consequences
was officially declared already in the February 1990
Resolution of the Supreme Council of the Lithuanian SSR "On
1939 Treaties between Germany and the USSR and elimination
of their consequences to Lithuania. It was also stated in.
this resolution that elections to the People's Seimas, which
took place on 14-15 July 1940, were carried out in violation
to the Constitution of Lithuania, and it was declared that
"the 21 July 1940 Declaration of the People's Seimas
concerning Lithuania's entrance into the USSR is unlawful
and null and void as it did not express the will of the
Lithuanian People".
In the 11 March 1990 Law of the Republic of Lithuania
"On the Reinstatement of the 12 May 1938 Constitution of
Lithuania" it was stated, that the 12 May 1938 Constitution
was suspended when on 15 June 1940 the Soviet Union
committed aggression against the independent State of
Lithuania and annexed it". Thus, the People's Seimas, which
had been formed in violation to the Constitution of
Lithuania, was used for the destruction of the economic
system established in the Constitution, and for the
unconstitutional enforcement of economic system of an alien
state on Lithuania. The Declaration of 22 July 1940 "On
Proclaiming all the Land of Lithuania National Property", i.
e. state-owned property, may serve as an example of such
acts of the People's Seimas. The next day the People's
Seimas adopted "Declaration on Nationalization of Banks and
Large-scale Industry", followed by nationalization of other
property as well. Such overall nationalization and
elimination of private property was carried out not only in
rough violation of the 1938 Constitution of Lithuania, but
also unlawfully denying human natural right to private
ownership by force. Lawful state property could not and did
not appear on the basis of such arbitrary acts of occupation
government, as rights may not originate on unlawful basis.
Therefore, property taken from people in such a way, may be
considered as property which is only factually managed by
the state.
The right of private ownership found its way back
into the legal system of the State due to the constitutional
provisions of Article 44 of the Provisional Basic Law and
Article 46 of the 1992 Constitution. Thereby, the continuity
of the provisions of the 12 May 1938 Constitution governing
the property right has been confirmed. However, it is
impossible to impartially reconstruct the complete former
system of property relations which existed in Lithuania in
1940. In the Law "On the Provisional Basic Law of the
Republic of Lithuania" it was stated that even changes which
took place during occupation period should not be ignored.
In the preamble to this Law it is determined that the
Supreme Council has taken into consideration the necessity
of bringing the provisions of the 12 May 1938 Constitution
of Lithuania "with today's changing political, economic and
other social relations".
The Supreme Council by the 11 March 1990 Law "On the
Reinstatement of the 12 May 1938 Constitution of Lithuania"
did not terminate the validity of Chapter 8 of this
Constitution entitled "National Economy", the norms of which
regulate property relations, however, in item 4 of this Law
established that "the reinstatement of the Constitution of
Lithuania does not in itself re-establish other laws in
effect in the Republic of Lithuania prior to 15 June 1940".
While recognizing the restitution of property and continuity
of property rights, the Supreme Council on 15 November 1990
confirmed the following statements: "The recognition of
continuity of citizens' rights of ownership is
unquestionable", "To establish that citizens of Lithuania
are entitled to the right to restore the existing real
property in kind in the scope and procedure prescribed by
laws, and when there is no such possibility, to receive due
compensation".
The circumstance that there was a need to resolve the
issue concerning continuity of the rights of ownership and
to vote the recognition of the continuity of property rights
of the citizens of the Republic of Lithuania shows, that the
Supreme Council considered the rights of ownership that had
been possessed before nationalization (the right of a
particular person to manage, use and dispose of property) as
unlawfully nullified. The promulgation of the provision of
continuity of property rights was a basis for the
implementation of a limited restitution , i. e. for the
protection of property rights that had been violated, in the
conditions and procedure prescribed by laws.
While recognizing the continuity of property
ownership rights, the Supreme Council by the statement of 15
November 1990 actually also ascertained that situations were
possible when all the existing property could not be
restored in kind. In such cases, it was provided for the
possibility to receive compensation. The Constitutional
Court indicates that the provision that, providing there is
no possibility to restore property in kind, it must be
adequately compensated for, does not contradict the
principles of inviolability of property and protection of
property ownership rights, because fair compensation also
ensures restoration of property ownership rights.
The realization of said rights is established in 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". In Article 1 of this Law it was
specified: "This Law shall legislate the procedures and
conditions of the restoration of the right of ownership to
the citizens of the Republic of Lithuania to the property
which was nationalized under the laws of the USSR
(Lithuanian SSR), or which was otherwise unlawfully made
public, 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".
The Supreme Council by this Law has recognized that
the rights of ownership to the property which was
nationalized under the legal acts of the Lithuanian SSR, or
which was otherwise unlawfully made public, must be
restored. The legislator, while maintaining that the rights
of ownership that had been unlawfully terminated, must be
restored, also recognized that it had to be done in the
procedure and conditions prescribed by laws. It is, on the
one hand, overall forcible character of violation of the
rights of ownership and, on the other hand, the decision to
carry out only limited restitution which predestined the
situation when the rights of former owners, that had been
unlawfully terminated, could not be protected by means of
norms of civil law that were in force at that time. For this
purpose, a special law like the Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership to
the Existing Real Property", had to be enacted.
Under this Law, the rights of ownership shall be
restored not to all former owners of property and not to all
the property they had possessed. It contains special
conditions, restrictions rather, which are applied to former
owners of property who desire to restore their property in
kind. Therefore, the statement, that by said Law an attempt
is made only to regulate the procedure of the restoration of
the rights of ownership, may not be considered as grounded.
The fundamentals of the restoration of the rights to
private ownership and to land, which had been earlier
violated, were formulated already in the legal acts of the
Supreme Council of the Republic of Lithuania. The
establishment of additional conditions and restrictions,
disregarding these acts, would not be in compliance with the
principled provisions of the continuity and restoration of
the rights of ownership, enacted by the legislator. After
the enforcement of the Constitution of the Republic of
Lithuania on 2 November 1992, laws that were amended or
newly adopted laws had to be co-ordinated with it.
Article 2 of the Law "On the Procedure and Conditions
of the Restoration of the Rights of Ownership to the
Existing Real Property" is titled: "Citizens Entitled to
Restored Ownership Rights", and in this Article, a notion
"former owner" is used to define such a person. He, i. e.
"the owner of property" is not mentioned in the Law with
regard to present time. While evaluating the status of a
citizen, who tries to restore the unlawfully terminated
rights of ownership, the fact when he acquires the right to
manage, use and dispose of some specific property, is of
considerable importance.
Until his property is restituted or he is paid an
appropriate compensation for it, the subjective rights of
the former owner to a specific property are not restored
yet. The law by itself shall not create subjective rights
until it is applied to a specific subject pertaining to the
restoration of a specific property. In such a situation the
legal meaning of the decision of the institution authorized
by the State to restore property in kind or compensate for
it is, that only from this proper moment, the former owner
acquires the rights of ownership to such property.
The legislator, having defined the procedure and
conditions of the restoration of the rights of ownership,
emphasized the priority of restoring the actual land
property. However, in the event when, due to the factual
present land-tenure relations and public interests, it is
impossible to grant the actual property, the former owner is
guaranteed the right to choose the manner of restoring the
right of ownership in the procedure and conditions
prescribed by laws.
The restoration of the rights of ownership and land
reform are two inseparable processes. Their unity is
expressed through their common object - land, therefore, the
restoration of the rights of ownership to land is co-
ordinated with land reform.
The afore mentioned circumstances must be necessarily
taken into consideration while evaluating the compliance of
the legal norms of the Law in dispute with the Constitution.
1. On the compliance of the parts of item 3 of the
Law "On Appending and Amending the Law "On the Procedure and
Conditions of the Restoration of the Rights of Ownership to
the Existing Real Property"", adopted 15 July 1993, by which
Parts 5 and 6 of Article 4 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 have been
amended, with the Constitution of the Republic of Lithuania.
In Parts 5 and 6 of Article 4 entitled "Conditions
and Procedures for the Restoration of the Right of Ownership
to Land Situated in Rural Areas" of the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" , adopted 18 June
1991, which has been amended by the Law in dispute, it is
established: "The right of ownership to land used for
agricultural purposes shall be restored to: persons
establishing farmer's holding; members of agricultural
companies and partnerships; persons planning to use the
restored land for private economic purposes as well as other
agricultural activities; persons, who intend to lease the
restored land for other legal persons engaged in farming.
While restoring the right of ownership to the land
used for agricultural purposes, it may be done only after
identification of the use of this land. This may be either:
1) a person, regaining this land, provided that he is
establishing a farmer's holding or is going to use this land
for private economic purposes;
2) a tenant (a farmer,. a person ready to engage in
farming, or an agricultural company), consenting to lease
the land (or portion thereof), which is unnecessary for the
needs of the landowner's family, for at least 3-year-period.
Preliminary consent to lease plots of land used for
agricultural purposes, designed in the land-planning
project, must be witnessed by a notary. The priority for
renting the land goes to the present user of this land."
The specific purpose and status of land, in
comparison to other objects of real property, predetermine
special legal regulation of land relations. Thus, in the
first part of Article 47 of the Constitution it is
established that, land, internal waters, forests, and parks
may only belong to the citizens and the State of the
Republic of Lithuania by the right of ownership. The only
exception is set forth in the second part of Article 47 of
the Constitution: "Plots of land may belong to a foreign
state by the right of ownership for the establishment of its
diplomatic and consular missions in accordance with the
procedure and conditions established by law".
The second part of Article 54 of the Constitution
contains the provision that the exhaustion of land shall be
prohibited by law. This constitutional principle of land
protection shows that land is interpreted as a public value
having its social function - to serve the welfare of the
people. The society is not indifferent to the way the land
is used, because it is in public interests to preserve the
productivity of land. Therefore, the right of the state to
regulate conditions of the restoration of the rights of
ownership to land is vital in order to co-ordinate the
interests of former owners with the public interests.
Parts 5 and 6 of Article 4 establish the conditions
for the restoration of the rights of ownership, under which
land used for agricultural purposes is returned in kind. The
specific character of agricultural land is that it is used
for agricultural production. Therefore, the legislator,
while determining the conditions for the restoration of the
land used for agricultural purposes, must neither impair the
rights of former owners, nor ignore the public interest to
use this land for agricultural purposes. Such public
interest is based on the provision established in the third
part of Article 46 of the Constitution that, the State shall
regulate economic activity so that it serves the general
welfare of the people.
Parts 5 and 6 of Article 4 contain the provisions
that land used for agricultural purposes may be restored to
: 1) persons establishing a farmer's holding; 2) members of
agricultural companies and partnerships; 3) persons who
desire to use the land regained for personal economic needs
and other agricultural activity. Said persons at present are
already users of the land which is given back to them. It
will further be used for its special purpose, therefore,
their interests do not contradict public interests.
The provision of the fifth part of Article 4 that the
land used for agricultural purposes may be restored "to
persons who are going to lease the land which is restored to
them for other natural and legal persons engaged in
farming", to a portion of former landowners, i. e. to those
who themselves are not going to use the land for
agricultural purposes, prescribes an unusual condition.
The conclusion of lease contract is the owner's right
based on his free will. The obligation to lease land,
imposed on the owner, is not acceptable from the point of
view of the traditions of civil law, as it restricts the
freedom to dispose of land. Though, it must not be
disregarded, that this is only a temporary measure used in
the implementation of land reform. Land is restored to
former owners ready to lease it, even if they would not use
it for agricultural purposes. However, while applying
unusual conditions for lease, which actually make the former
owner lease the restored land for its real user, it is
necessary to ensure the imposition of such imperative
conditions on the other party to the lease contract as well.
Thus, in cases when the owner chooses the lease of the land
(or a portion thereof) as a condition of the restoration of
the land which he had in his ownership earlier, the factual
user of this land must conclude a lease contract with a
landowner. In the event that the factual land user refuses
to conclude a lease contract, such land should be restored
to the former owner as a person who has met the condition
prescribed by law to lease land. Disputes among parties
pertaining to the lease contract and conditions thereof are
to be investigated in civil procedure. Another
interpretation of the provisions of the Law concerning the
land lease would mean the violation of the rights of the
former landowner as well as the principle of equality among
parties to the contract.
In the event that the former landowner does not
desire to conclude said lease contract, he may choose
another way of restoring the rights of ownership as an
alternative. Such possibility to choose does not deny the
principle of the inviolability of property, therefore, Parts
5 and 6 of Article 4 of the Law in dispute do not contradict
the Constitution.
2. On the compliance of the items 14, 15, 16, 17, 18,
and 19 of the Law "On Appending and Amending the Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership to the Existing Real Property" ", adopted 15 July
1993, by which Article 12 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 items 10, 11, 12, 13, 14 and 15, with the
Constitution of the Republic of Lithuania.
In Article 12 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 is
entitled "The Buying out of Land" it is established: "Land
required for State needs as well as other land shall be
bought out from persons defined in Article 2 of this Law in
the manner specified in Article 16 of this Law..."
This Article provides for the cases of buying out of
land. The buying out of land regulated by said Article is
not identical to the purchase according to the contract of
sale which is regulated by the norms of civil law. The
contract of sale, in accordance with general principles of
making contracts, is based on the free will and equality of
the parties. Under this contract, the owner himself assumes
the obligation to transfer his property to the purchaser at
a contract price, and nobody can make him conclude this
contract. The notion "buying out", used in Article 12,
actually means the right of the institutions authorized by
the State to adopt a decision not to restore the existing
real property to the former owner provided that there are
appropriate conditions established by the legislator
himself. Buying out of the land is conditioned by the public
interest in it but not by the will of the former owners and
other persons specified in the Law. Buying out is not a
voluntary transferral of one's property but its seizure
compensating for its value. Said persons have only the right
to choose the manner of compensation in the procedure
prescribed by law. In case of disputes pertaining to the
manner of compensation of property or its value, they may
defend their interests in court.
While considering the issues of returning the land to
former owners, facing the system of socio-economic
relations, that was formed during the period of 50 years, is
inevitable. Land-tenure has changed: land areas were planted
with forests; new water bodies came into being; railways and
motor ways were built; the main network of oil and gas pipes
was laid on ; urban areas and land areas covered by
industrial enterprises have expanded; large-scale
specialized units of agricultural production have been built
and are functioning at present. Due to such new
circumstances, the right of the state to regulate the
conditions of the restoration of the rights of ownership, so
that the interests of former owners and public interests
were co-ordinated to the utmost, should not be ignored. The
activity of State and its institutions, trying to establish
the procedure and conditions of the restoration of the
unlawfully terminated rights of ownership, must be based on
the constitutional provisions ensuring the protection of the
rights of ownership and the general welfare of the people.
In item 10 of Article 12 it is established that land
shall be bought out if "it is occupied by orchards, berry-
fields, nursery-gardens, gardens with the installed
irrigation systems of specialized agricultural enterprises.
Such plots may be given back into ownership in kind, without
changing the nature of land use, for the persons who shall
lease it for agricultural enterprises using this land under
the conditions specified in item 9 of said Article.
This norm provides for buying out of land containing
orchards, berry-fields, nursery-gardens as well as gardens
with installed irrigation systems, that belong to
specialized agricultural enterprises. Farming lands of such
agricultural enterprises are formed with reference to
perspective farming using long-term investments. Apart from
irrigation and reclamation systems, other special industrial
objects, such as depositories, refrigerators, equipment for
production processing, etc., are installed in these
companies. Such orchards, berry-fields, nursery-gardens,
gardens along with all the equipment comprise a complete
industrial-technological unit. Therefore, special
technologies, the same means of pest control can be used,
and the cultivation of fruit and vegetables can be
specialized.
Unconditional restoration of land would violate
industrial-technological integrity of existing complexes, it
even can lead to the ruining of all the operation of these
units, so that their useful technological potential would be
left unused. This would impair the public need for
specialized production. The obligation to conclude a lease
contract concerning the land to be returned is established
meeting the interests of the former owner and society. With
regard to the legislator's standpoint that the land must be
used for agricultural purposes, the Constitutional Court
expressed its opinion while resolving the issue whether
Parts 5 and 6 of Article 4, which have been amended by the
Law in dispute, are in conformity with the Constitution.
However, the provision of item 10, that plots of land
"may be" returned is flawed as it creates legal ambiguity.
Such a provision means that the right of the former owner to
restore land in kind may be restricted even in cases when he
agrees to lease land under conditions prescribed by the Law
in dispute. The consent of the former owner to lease shows
that he meets all the conditions established by the Law in
dispute, therefore, it must be evaluated as a juridical fact
ensuring the restoration of the actual land property.
However, in the presence of said provision ("may be"), this
right of the former owner might be restricted by certain
state institutions, officials, or current land users. Such
possibility of subjective decisions contradicts the
provision that the restoration of the rights of ownership is
predetermined only by the conditions established in the Law
"On the Procedure and Conditions of the Restoration of the
Rights of Ownership to the Existing Real Property".
Therefore, the provision of item 10 of Article 12 that plots
of land "may be" restored, contradicts Article 23 of the
Constitution.
In item 11 of Article 12 it is established that land
shall be bought out if it "contains irrigation systems for
overhead irrigation of fodder areas by disposed waters of
cattle-breading complexes".
This norm expresses the legislator's desire to ensure
the functioning of existing cattle-breeding complexes as
special technologies. Such complexes were formed as integral
production systems, the functioning of which cause
ecological problems which must not be ignored. Disposed
waters that appear in the production cycle of cattle
breeding complexes, must be permanently discharged. For
overhead irrigation of such waters plots of land of
appropriate size are needed, on which system of two-way
regulation of humidity regime - pumping stations,
communications of underground pipelines and systems of
overhead irrigation - would be installed. If such special
technology of elimination of disposed waters were not used,
natural environment would be threatened.
The objective situation is such that the industrial-
technological process requires said plots of land with above-
mentioned equipment. Therefore, such plots of land used for
special purposes must necessarily be left near cattle-
breeding complexes, because it is related to the public
demand for the guarantee of ecological protection.
Due to systematic irrigation of land areas, an
appropriate regime of the utilization of irrigated land,
essential limitations on crop rotation must be applied. Upon
restoration of such land to former owners, the interests of
cattle-breeding complexes and individual landowners would
inevitably clash. An attempt to combine those interests may
face objective as well as subjective obstacles, and may
cause disorder in the functioning of the existing
ecologically safe production systems.
While solving the issues concerning the restoration
of the rights of ownership and providing for the buying out
of said plots of land, the legislator took into account not
only economic but also ecological interests of society.
Thereby, the legislator implemented the function of the
State to concern itself with the protection of the natural
environment, established in Article 54 of the Constitution.
Therefore, there is no ground for recognizing that item 11
of Article 12 contradicts the Constitution.
In item 12 of Article 12 it is established, that land
"of forest districts and national parks to be used for the
needs of forestry shall be bought out according to the
standards determined by the Ministry of Forestry".
Item 12 of Article 12 provides for the possibility
not to return the land used for agricultural purposes in
kind provided that this land, in compliance with the
standards determined by the Ministry of Forestry, is
assigned to forest districts and national parks. The
restriction of the restoration of the right of ownership is
related under this item to vague needs of forestry, without
specifying any objective criteria for public interest. The
statement that land not subject to restoration is necessary
for the maintenance of horses needed for work in forests, is
not a convincing argument, because such utitlization of land
may not be regarded as pubic interest. The right to draft
standards for agricultural land to be used for the needs of
forestry, vested in the Ministry of Forestry, is also
groundless. In this case, governmental institution is
entitled to the right to determine the size of plots of land
to be bought out for its own needs. The establishment of new
conditions to be applied in the restoration of the right of
ownership is within the competence of the legislator. The
Ministry of Forestry actually becomes an institution
resolving issues concerning ownership, i. e. it restricts
the rights of the former owners to restore land in kind.
Whereas, land may be seized only upon a specific decision
adopted in compliance with the provisions of the third part
of Article 23 of the Constitution.
Limitations on the restoration of land, set forth in
item 12, are not based on objectively expressed public
interests, therefore, such restriction of the restoration of
the rights of ownership of former owners contradicts Article
23 of the Constitution of the Republic of Lithuania.
In item 13 of Article 12 it is established, that
"land to be bought out in a rural area, shall be used for
the construction of residential houses, common use of
residents or other public needs in accordance with the
settlement-development projects".
In occupation period in Lithuania, upon denial of the
private ownership to land and implementation of
collectivization of agriculture as well as establishment of
large-scale state farms, an appropriate structure of rural
settlements was formed. That period saw the construction of
many new rural settlements. Land, which before occupation
used to be private property, was now used for the
construction of these settlements. At present, the situation
is such, when some land areas that used to be private
property is now built over by residential houses, structures
used for economic, cultural and other social purposes,
therefore, this and other commonly used land in settlements
may not be considered the existing real property and is not
objectively possible to be returned for the former owners.
Due to the economic reform in general, and land
reform taken apart, the perspectives of the development of
rural settlements are subjected to changes as well. They
change in the process of restoration of the rights of
private ownership to land. Therefore, preliminary purchase
of land for the future construction of residential houses in
accordance with settlement-development projects, for common
use of residents or for other public needs, may not be based
on public interest.
Buying out of land in rural settlements according to
the development projects provide for the possibility to
privatize it later, i. e. other persons will be allowed to
acquire it. That would mean, however, the violation of the
right of former owners to restore land.
In conformity with afore mentioned arguments it is
recognized that item 13 of Article 12 contradicts Article 23
of the Constitution.
In item 14 of Article 12 it is established, that
"rivers and lakes belonging to the water fund of the State
and local governments shall be bought out if they are
ascribed to water bodies not subject to privatization in
accordance with the procedure established by the Government
of the Republic of Lithuania".
The legislator, while adopting on 18 June 1991 the
Law "On the Procedure and Conditions of the Restoration of
the Rights of Ownership to the Existing Real Property",
established the conditions which were applied to former
owners while returning inland waters. In item 8 of the
resolution of the Supreme Council of the Republic of
Lithuania "On 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"" it is determined that: "A
person shall own any lake of the size determined by the
Government of the Republic of Lithuania, water reservoir,
canal, pond, and other surface water body, if it is
surrounded on all sides by his property".
By way of implementing this resolution, the
Government in paragraph 1, item 15 of resolution No 470 of
15 November 1991 established, that the restored area of
afore mentioned waters along with land "must not exceed 5
hectares. In exceptional cases, the restored area may exceed
10 hectares, provided that the Department of the
Environmental Protection of the Republic of Lithuania gives
its consent thereto".
In conformity with earlier formulated provisions of
the legislator, the process of the restoration of unlawfully
terminated rights of ownership and returning of water bodies
to their former owners has already been under way. New
conditions that are determined in item 14 of Article 12
impose even more restrictions on the rights of former owners
who have not restored their water bodies yet.
Only small in size water bodies have been returned.
Therefore, the restrictions imposed on the restoration of
such waters may not be justified by abstract public
interest. In case that such interest is related to a
specific water body, it may, regardless of its size, be
seized only in accordance with the decision adopted under
the provisions prescribed by the third part of Article 23 of
the Constitution.
In item 14 of Article 12, buying out of internal
waters is based on their adherence to the State fund or the
fund of local governments. This adherence of waters does not
manifest public interest. On the contrary, due to this
adherence, the possibility arises to ascribe any water
bodies to this fund, in accordance with the provision that
they are not subject to privatization. Such norm impairs the
rights of former owners to restore water bodies in kind,
therefore, item 14 of Article 12 contradicts Article 23 of
the Constitution.
In item 15 of Article 12 it is established that "land
taken into the state land fund for establishing a farmer's
holding shall be bought out provided that at present it is
leased by persons who are actually engaged in farming and
have structures used for economic activity, but may not
restore this land in kind."
It was the Law "On Farmer's Holding in the Lithuanian
SSR", adopted on 4 July 1989, which at the end of Soviet
period for the first time established the allocation of land
for farmer's holdings. Those who desired to engage in
farming were allotted land free of charge from the land fund
designed for farmer's holdings. This fund appropriated land
from the state reserve, state forest fund, State farms,
collective farms as well as other enterprises and
organizations (Article 7 of the Law "On Farmer's Holding in
the Lithuanian SSR").
Said provisions were not nullified upon the adoption
of the 11 March 1990 Law "On the Provisional Basic Law" in
Article 3 of which it is established that: "Laws and other
legal acts heretofore in force in Lithuania which do not
conflict with the Provisional Basic Law of the Republic of
Lithuania shall remain in effect in the Republic of
Lithuania. With the presence of such norm, Land Code of the
Republic of Lithuania, in accordance with the Law of 5 April
1990, was appended by Article 48-1 providing for the
appropriation land into the land fund designed for farmer's
holdings. Under this Law, plots of land were appropriated
into the fund disregarding the right of ownership of former
owners, although the institute of private property had
already been returned into the legal system of the state.
The allocation of land according to the Law on Farmer's
Holding had not been terminated until the day of the
enforcement of the Law on Land Reform of the Republic of
Lithuania, i. e. until 1 September 1991 (Paragraph 1, item 1
of the Resolution of the Supreme Council "On the Procedure
for the Enforcement of the Law on Land Reform of the
Republic of Lithuania" of 25 July 1991).
The provisions of item 1, Article 8 of the Law on
Land Reform meant , that the citizens, having received land
under the Law on Farmer's Holding, had to buy out or lease
from the State an additionally acquired plot. Such
provisions show that the State took the obligation to
protect the rights of citizens who had acquired land
according to the Law on Farmer's Holding, and to pay an
appropriate compensation for the former owners.
Thus, the State by laws provided the conditions for
persons who acquired land into the ownership under the Law
on Farmer's Holding, to settle on this land, engage in
farming, as well as to have various structures there.
Failing to provide the possibility for the State to buy out
such land from the former owners, the contents of legal
relations already regulated by laws, would be changed. That
would mean retroactive validity of Article 12 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, because it would be applied to juridical facts
and legal consequences which appeared on the basis of the
Law on Farmer's Holding. Item 15 of Article 12 has
eliminated the clash of laws, therefore it does not
contradict the Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania as well as Articles 53, 54, 55 and 56
of the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court has passed the following
ruling:
To recognize that concerning the Law of the Republic
of Lithuania "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" ", adopted 15 July 1993:
1) those parts of item 3, by which Parts 5 and 6 of
Article 4 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 have been amended, do not
contradict the Constitution of the Republic of Lithuania;
2) the provision "may be" of item 14, by which
Article 12 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 10,
contradicts Article 23 of the Constitution of the Republic
of Lithuania. Other provisions of this item do not
contradict the Constitution of the Republic of Lithuania;
3) item 15, by which Article 12 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 11, does not contradict the
Constitution of the Republic of Lithuania;
4) item 16, by which Article 12 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 12, contradicts Article 23 of the
Constitution of the Republic of Lithuania;
5) item 17, by which Article 12 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 13, contradicts Article 23 of the
Constitution of the Republic of Lithuania;
6)item 18, by which Article 12 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 14, contradicts Article 23 of the
Constitution of the Republic of Lithuania;
7)item 19, by which Article 12 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 15, does not contradict the
Constitution of the Republic of Lithuania.
This Constitutional Court ruling is final and not
subject to appeal.
The ruling is promulgated on behalf of the Republic
of Lithuania.
Justices of the Constitutional Court:
Algirdas Gailiūnas Kęstutis Lapinskas
Zigmas Levickis Pranas Vytautas Rasimavičius
Stasys Stačiokas Teodora Staugaitienė
Stasys Šedbaras Juozas Žilys