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