THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA R U L I N G

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1 Case No. 18/99 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA R U L I N G On the compliance of Paragraphs 2, 3, 4, and 5 of Article 5, Item 3 of Article 12 and Paragraph 3 of Article 16 as well as Item 5 of Paragraph 9 of the same article of the Republic of Lithuania s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property with the Constitution of the Republic of Lithuania and on the compliance of Paragraphs 2, 3, 4, and 5 of Article 5 as well as Item 3 of Article 12 of the same law with Article 8 of the Constitutional Law on the Subjects, Procedure, Terms, Conditions of, and Limitations on the Acquisition of the Land Plots for Ownership Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania Vilnius, 2 April 2001 The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Egidijus Jarašiūnas, Egidijus Kūris, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Vytautas Sinkevičius, Stasys Stačiokas, and Teodora Staugaitienė The court reporter Daiva Pitrėnaitė Saulius Pečeliūnas, Rytas Kupčinskas, Vladas Vilimas, and the advocate Adolfas Povilas Zamalaitis, acting as the representatives of a group of members of the Seimas of the Republic of Lithuania, the petitioner Vidas Stankevičius, a senior consultant of the Law Department of the Seimas of the Republic of Lithuania, acting as the representative of the party concerned The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 28 February 1 March 2001, in its public

2 2 hearing, considered case No. 18/99 subsequent to the petition submitted to the Constitutional Court by a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting the Constitutional Court to investigate whether Paragraphs 2, 3, 4, and 5 of Article 5, Item 3 of Article 12 of the Republic of Lithuania s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property were in compliance with the common provisions of the same law, Articles 23, 29, 46 and 47 of the Constitution of the Republic of Lithuania, Articles 15 and 21 of the Republic of Lithuania s Law on Land, Article 8 of the Constitutional Law on the Subjects, Procedure, Terms, Conditions of, and Limitations on the Acquisition of the Land Plots for Ownership Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania, and whether the second sentence of Paragraph 3 of Article 16 and Item 5 of Paragraph 9 of Article 16 of the Republic of Lithuania s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property were in compliance with Paragraph 3 of Article 23 and Article 29 of the Constitution of the Republic of Lithuania. The Constitutional Court has established: I On 1 July 1997, the Seimas of the Republic of Lithuania passed the Republic of Lithuania s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (Official Gazette Valstybės žinios, 1997, No ). On 13 May 1999, the Republic of Lithuania s Law On Amending and Supplementing Articles 2, 4, 5, 10, 12, 13, 15, 16, 18, 20, 21 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (Official Gazette Valstybės žinios, 1999, No ) was adopted. The petitioner a group of Seimas members requests the Constitutional Court to investigate whether Paragraphs 2, 3, 4, and 5 of Article 5 and Item 3 of Article 12 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (wording of 13 May 1999; hereinafter also referred to as the Law) are in compliance with the common provisions of the same law, Articles 23, 29, 46 and 47 of the Constitution, Articles 15 and 21 of the Law on Land, Article 8 of the Constitutional Law on the Subjects, Procedure, Terms, Conditions of, and Limitations on the Acquisition of the Land Plots for Ownership Provided for in Paragraph 2 of Article 47 of the Constitution (hereinafter also referred to as the Constitutional Law), and on whether the second sentence of Paragraph 3 of Article 16 and Item 5 of Paragraph 9 of Article 16 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property are in compliance with Paragraph 3 of Article 23 and Article 29 of the Constitution.

3 3 II The request of the petitioner is based on the following arguments. 1. Certain norms of the Law are not in line with the norms of the Constitution and common norms of the Law wherein it is underlined that the rights of ownership acquired by citizens of the Republic of Lithuania prior to the occupation shall not be abolished and that they shall enjoy continuity, that the Constitution shall guarantee and protect the rights and property of the state and its citizens, that citizens of the Republic of Lithuania shall be given back the existing real property, while in the absence of such an opportunity, they shall be fairly compensated. It is emphasised in the common provisions of the Law that the existing real property must, first of all, be returned in kind, and only in the absence of such an opportunity, the property may be purchased. 2. The petitioner maintains that Paragraphs 2, 3, 4 and 5 of Article 5 of the Law do not provide for the returning of the land in kind, which, prior to 1 June 1995, was situated within the territories assigned to towns, to the owners who hold houses or other buildings by right of ownership. Nor is it provided to return the land in kind in cases when it is vacant, not used by anyone, used to satisfy non-public needs or when it is planned to be used for residential houses construction, common use of residents or for other public needs in the future according to planning projects of these vacant territories. It is impossible to base the non-returning of this land in kind on public needs as other persons acquire this land for personal use. Therefore, the petitioner has doubts whether Paragraphs 2, 3, 4 and 5 of Article 5 of the Law are in compliance with Paragraphs 1 and 2 of Article 23 of the Constitution. 3. Under the provisions of Article 4 of the Law, in the course of the restoration of the rights to the land lying in a rural area, vacant, used for non-public needs land or that which is planned to be utilised for residential houses construction, public use of residents, or public needs in the future, as well as the land, which is used or leased by natural and legal persons or personal enterprises for exploitation of buildings (under construction or already built), buildings in places of rest (under construction or already built) which they hold by right of ownership, is returned in kind for the owners, however, the land of the same status lying in a town is not returned. In addition, Paragraph 6 of Article 5 of the Law provides that the rights of ownership to land situated within the territories of the municipalities of the towns of Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga and Birštonas, which was assigned to the municipalities of these towns after 1 June 1995, shall be restored in the manner prescribed by Article 4 of this Law by giving it back in kind. The petitioner is of the opinion that Paragraphs 2, 3, 4 and 5 of Article 5 of the Law conflict with Article 29 of the Constitution as the said paragraphs of the Law violate the provisions of protection of ownership rights of citizens and that the rights of ownership are infringed on the grounds of the social status and origin of citizens or of property formerly held by

4 4 them. 4. Paragraph 1 of Article 47 of the Constitution provides that land, internal waters, forests, and parks may only belong to the citizens and the State of the Republic of Lithuania by right of ownership. The petitioner has doubts whether Paragraphs 2, 3, 4 and 5 of Article 5 of the Law are in compliance with Article 47 of the Constitution, as they do not require that state-owned land be separated from the pre-war private land. Due to this, the legal registration of state-owned land plots is, as a rule, not carried out according to the procedure provided for in Article 12 of the Law on Land. One does not pay heed to the 1940 Lithuanian legal cadastre of land. Due to the fact that the state-owned land plots in territories of towns are not separated from pre-war private land plots, the land seized on the grounds of the nationalisation of land carried out by the occupation government is, as state-owned land, granted to other citizens for ownership. The petitioner thinks that such transfer of the pre-war private land to other persons conflicts with Article 47 of the Constitution as, under Articles 15 and 21 of the Law on Land, land becomes state-owned only after it has been registered in the name of the state in the register of the land cadastre. Concerning this issue, the petitioner has doubts because the provision consolidated in Article 8 of the Constitutional Law, which went into effect on 1 February 1998, prohibits the subjects possessing pre-war private land from selling it prior to the restoration of citizens rights of ownership to it and prior to the registration of land ownership in accordance with the procedure established by law. 5. In the opinion of the petitioner, the provisions of Paragraphs 2, 3, 4 and 5 of Article 5 of the Law also conflict with the provision of Paragraph 1 of Article 46 of the Constitution that Lithuania s economy shall be based on the right to private ownership, as granting pre-war private land to other persons, which can be restored in kind, becomes like its seizure, and this groundlessly restricts the right of private ownership of the owners. 6. The petitioner has doubts whether the purchase or transfer into ownership of all land lying in territories of towns without payment as it is established in Item 3 of Article 12 (with the exception of Paragraph 6 of Article 5), without taking account of the present status of this land which is pointed out in the other items of Article 12 is in compliance with Articles 23, 29, 46 and 47 of the Constitution. 7. The petitioner also doubts if the provisions of the second sentence of Paragraph 3 of Article 16 of the Law which establish different principles of value assessment of town land from those of value assessment of rural land which are set down in the first sentence of Paragraph 3 of Article 16 and if Item 5 of Paragraph 9 of Article 16 of the Law which does not provide for a manner of monetary payment for the land purchased in territories of towns, are in compliance with Paragraph 3 of Article 23 and Article 29 of the Constitution as they legitimise the principle of unfair compensation and violate the provisions of the equality of persons before the law.

5 5 III In the course of the preparation of the case for the Constitutional Court hearing, written explanations by V. Stankevičius, the representative of the party concerned, were received. 1. The representative of the party concerned points out that the part of the petition of the petitioner requesting an investigation into whether Paragraphs 2, 3, 4, and 5 of Article 5, Item 3 of Article 12 of the Law are in compliance with the common provisions of the same law and Articles 15 and 21 of the Law on Land is, under Article 63 of the Law on the Constitutional Court, not within the jurisdiction of the Constitutional Court, as the Constitutional Court considers neither the compliance of norms of a law with the other or common provisions of the same law, nor with norms of another law. Under the provisions of Item 2 of Paragraph 1 of Article 69 of the Law on the Constitutional Court, the said part of the petition may not be considered by the Constitutional Court. 2. The representative of the party concerned notes that both the Preamble and Article 1 of the Law point out that the Law has been passed after one s taking account of provisions of the Constitution, rulings of the Constitutional Court and objectively formed social relations. It is established in the Preamble to the Constitution that the Lithuanian nation strives for an open, just, and harmonious civil society and State under the rule of law, while Paragraph 3 of Article 46 of the Constitution points out that the State shall regulate economic activity so that it serves the general welfare of the Nation. The Law also reflects the provisions of the rulings of the Constitutional Court passed in In its ruling of 27 May 1994, the Constitutional Court noted that it is impossible to impartially reconstruct the complete former system of property relations which existed in Lithuania in 1940, while in its ruling of 8 March 1995 it held: One of the main objectives of law as a means of regulation of social life is justice. It is impossible to attain justice by satisfying interests of only one group or one person and by denying interests of others. While behaving one-sidedly, the humane purpose of law would be disregarded and the probability of social conflicts would increase. The restoration of rights of ownership is conditioned by the fact that during more than 50 years due to objective social, economic, proprietary and other reasons the social relations linked with ownership changed entirely. The relations concerning the land assigned to towns have changed particularly. The demand to return in kind the land nationalised under the laws of the USSR (and those of the Lithuanian Soviet Socialist Republic) or seized in other unlawful manner would mean complete restoration of ownership relations of urban land. However, restoration of social relations after 50 years, without violating the existing social relations, is hardly possible. This would not help to foster national concord in the land of Lithuania which is consolidated in the Preamble to the Constitution. Thus, the conditions for the restoration of the rights of ownership to land, which, until 1

6 6 June 1995, was in the territory lying in a town, are not linked with its returning in kind irrespective of any circumstances neither those pointed out by the petitioner, i.e. the land is vacant, unused, used for non-public needs etc., nor any other. The provisions of Paragraphs 2, 3, 4 and 5 of Article 5 of the Law do not conflict with the norms of the Constitution which establish inviolability of property, as the former provide that the rights of ownership to land which, prior to 1 June 1995, was situated within the territory assigned to towns according to the established procedure, are restored in other ways or it is compensated for. In the opinion of the representative of the party concerned, the impugned provisions of the Law, while taking account of the realities of social life, ensures the restoration of the rights of ownership to land as much as possible, which, prior to 1 June 1995, was situated within the territory assigned to towns according to the established procedure. In the opinion of V. Stankevičius, Paragraphs 2, 3, 4 and 5 of Article 5 of the Law are in compliance with Paragraphs 1 and 2 of Article 23 of the Constitution. 3. The representative of the party concerned maintains that the provisions of Paragraphs 2, 3, 4 and 5 of Article 5 of the Law are in compliance with Article 29 of the Constitution. Article 4 of the Law regulates the conditions and procedure of the restoration of the rights of ownership to the land lying in a rural area, while its Article 5 to the land lying in the territory of a town. The conditions and procedure of the restoration of the rights of ownership to rural and urban land are different, however, it is hardly possible to be treated as a violation of the provisions of the Constitution. In its ruling of 27 October 1998, the Constitutional Court held that in the norms of Article 29 of the Constitution the principle of the equality of all persons is entrenched. This is a constitutional guarantee for the inborn human right to be treated on the equal basis with the others. However, as it was emphasised by the Constitutional Court in its rulings many a time, by itself the constitutional principle of the equality of all persons does not deny the fact that the law may establish different legal regulation with respect to certain categories of persons who are in different situations. According to the representative of the party concerned, the fact that different conditions and procedure were established as regards restoration of the rights of ownership to the land lying in a rural area or in a town is neither a restriction on citizens rights nor granting any privileges for them. The conditions and procedure of the rights of ownership to the land lying in the territory of a town or a rural area, as it is pointed out in Article 1 of the Law, are established upon the assessment of the existing objective social property relations which are different in town and in the country. 4. The representative of the party concerned points out that the provisions of Paragraphs 2, 3, 4 and 5 of Article 5 of the Law are in compliance with Paragraph 1 of Article 47 of the Constitution and Article 8 of the Constitutional Law. The provisions of the Law do not require that state-owned land be separated form pre-war private land. The Republic of Lithuania s Law on Land Reform, the Law on Land and other laws regulating land relationships do not contain such a

7 7 requirement, either. The restoration of the rights of ownership to land lying in the territories assigned to towns is not linked to its returning in kind, therefore, the separation of pre-war private land from state-owned land would be meaningless. The provisions of the Law are also in compliance with Article 8 of the Constitutional Law. The norm of the Constitutional Law prohibits selling not pre-war private land, as it is maintained by the petitioners, but the land to which the citizens ownership rights are being restored under the laws. 5. The representative of the party concerned is of the opinion that the provisions of Paragraphs 2, 3, 4, and 5 of Article 5 of the Law are in compliance with Paragraph 1 of Article 46 of the Constitution. One has mentioned the provision held by the Constitutional Court that it is impossible to impartially reconstruct the complete former system of property relations which existed in Lithuania in The provisions of the Law establish the restoration of the rights of ownership to land but it does not guarantee giving back of pre-war private land. It is impossible to consider the establishment of the conditions of the restoration of the rights of ownership to the land lying in the territory of a town, which does not provide for the returning of the land in kind, to be seizure of this land. The provisions of the law have been adopted by taking account of the objective social relations which have formed in towns and of Paragraph 3 of Article 46 of the Constitution providing that the State shall regulate economic activity so that it serves the general welfare of the Nation. 6. The representative of the party concerned maintains that Item 3 of Article 12 of the Law is in compliance with Articles 23, 29, 46 and 47 of the Constitution. Item 3 of Article 12 of the Law provides that in the case that the land which, prior to 1 June 1995 was lying in the territory assigned to a town according to the established procedure, shall be purchased by the state from the citizens pointed out in Article 2 of the Law and it shall be compensated for. This is a common provision, however, the Law provides for an exception, too. This provision is not applied when the used land plot adjoining the buildings is in the land held by right of ownership, the said plot is transferred into ownership without payment. The provisions of the Law are based on Paragraph 3 of Article 23 of the Constitution establishing that property may only be seized for the needs of society according to the procedure established by law and must be adequately compensated for. The Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property provides for the procedure of purchasing land. The situations of purchasing land under the exception provided for in the said law are in line with the existing objective social relations, public needs and serve the general welfare of the Nation. 7. The representative of the party concerned points out that the provisions of the second sentence of Paragraph 3 of Article 16, as well as Item 5 of Paragraph 9 of Article 16, are in compliance with Paragraph 3 of Article 23 and Article 29 of the Constitution. The provision of

8 8 Paragraph 3 of Article 23 of the Constitution that property must be adequately compensated for is implemented in Paragraph 2 of Article 16 of the Law wherein it is established that in the course of the compensation for citizens for real property by the state one follows the principle of equivalence between the property subject to not being returned and the property transferred for it by which the property purchased by the state is compensated for, and in Paragraph 3 of Article 12 of the Law providing that in the course of the compensation for the property purchased by the state it is calculated according to the actual value of the property purchased and property transferred. These are common provisions of the Law providing for fair compensation as they also consolidate the principle of value equivalence. These provisions are also reflected by those of the second sentence of Paragraph 3 of Article 16 of the Law. Paragraph 9 of Article 16 of the Law provides for ways of compensation for the land purchased by the state. Item 6 of Paragraph 9 of the said article provides that monetary compensation is given to the land which was assigned to the territories lying in towns in the period from 1 August 1991 till 1 June 1995 according to the procedure established by the Government. IV In the course of the preparation of the case for the judicial consideration, written explanations were received from the representatives of the petitioner S. Pečeliūnas, R. Kupčinskas, V. Vilimas, and A. P. Zamalaitis. In addition, written explanations were received from the specialists V. V. Čeginskas, an advisor to the Seimas in rural matters, and E. Raugalas, Deputy Director of the Kaunas branch of the State Enterprise The Cadastre and Register of Land and other Real Property. V At the Constitutional Court hearing the representatives of the petitioner a group of Seimas members virtually reiterated the arguments set down in the petition of the group of Seimas members. At the Constitutional Court hearing the representative of the party concerned virtually reiterated the arguments set down in his written explanations. At the Constitutional Court hearing explanations were presented by the specialists V. V. Čeginskas, E. Raugalas, as well as A. Kadūnas, Head of the Division of Organisation of Land Exploitation of the Department of Organisation of Land Exploitation and Law which is under the Ministry of Agriculture. At the Constitutional Court hearing evidence was given by the witnesses P. Vilniškis, D. Vaivadienė, S. Vizgirdienė, O. Kiškienė, R. Jasinskas, R. Liakas, P. Pileckas, A. Venckūnienė, N. Jasudienė, V. Kirdeikis, D. Narveišienė and J. Petrauskas.

9 9 The Constitutional Court holds that: I On the compliance of Paragraphs 2, 3, 4, and 5 of Article 5 and Item 3 of Article 12 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property with Articles 23 and 29, Paragraph 1 of Article 46, Paragraphs 1 and 2 of Article 47 and Article 8 of the Constitutional Law on the Subjects, Procedure, Terms, Conditions of, and Limitations on the Acquisition of the Land Plots for Ownership Provided for in Paragraph 2 of Article 47 of the Constitution. 1. Paragraphs 2, 3, 4, and 5 of Article 5 of the Law, which is entitled Conditions and Procedure for the Restoration of the Ownership Rights to Urban Land provide: 2. The rights of ownership to the land which, prior to 1 June 1995, was situated within the territory that was, in the prescribed manner, assigned to towns shall be restored: 1) by transferring without payment into the ownership of the citizens who have residential houses or other structures by right of ownership, a plot of land in use by them, the boundaries whereof are established in the territorial planning documents, adjoining these structures or a plot of land designated for another purpose (kitchen garden, garden and other), established in the territorial planning documents, except in the territory of Curonian Spit National Park, but not exceeding 0.2 hectares in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas, and not exceeding 0.3 hectares in other towns. When a utilised plot of land adjoining the structures lies within the land previously held by right of ownership, which is larger than 0.2 or 0.3 hectares respectively, at the request of the citizen this larger utilised plot of land adjoining the structures as well as the existing vacant (not built up) area of land plot adjoining the aforementioned land plot in use shall be transferred into the right of ownership without payment (in cases when there are several citizens having the right to restore the rights of ownership into the said land, at their request this larger utilised existing vacant (not built up) area of land plot adjoining the structures shall be transferred into common ownership or into the ownership of the owner of these structures without payment), regardless of the drawn up territorial planning documents of that locality, but not exceeding 1 hectare of the total area in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas, and not exceeding 1.5 hectares of the total area in other towns; 2) by transferring without payment a new plot of land, either arranged according to the procedure established by the Government or a non-arranged land plot, into the ownership of a citizen, when the Government has approved its size in the same town in which he previously owned

10 10 the land, with the exception of the territory of Curonian Spit National Park, or, at the request of the citizens, in the town where they reside (except the towns of Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas and the territory of Curonian Spit National Park). New plots of land in the parts lying within the areas of towns, which are entered in the Register of Immovable Cultural Properties of the Republic of Lithuania (the List of Cultural Areas) shall not be transferred into ownership for individual building or other purposes (with the exception of cases when on the land previously held by the citizens by right of ownership individual building is provided for in the territorial planning documents); utilised plots of land shall be transferred into ownership without payment only to those persons who own residential houses or other structures in these parts lying within the areas of towns by right of ownership. In cases when the citizen refuses a new land plot arranged according to the procedure established by the Government or a non-arranged land plot (at choice) transferred without payment for individual building, at his request he shall be paid the average price of the land plot, established in the said town by the Government, in accordance with Article 16 of this Law. This amount of money shall be established by the Government. 3. The size of a new plot of land, transferred without payment into the ownership of citizens, which is situated within the territory assigned to a town shall, at the proposal of the town or district municipality, be approved by the Government. The minimum size of a new plot of land transferred without payment into ownership shall be 0.04 hectares (with the exception of a smaller plot of land held by right of ownership). The maximum size of a new plot of land transferred without payment into ownership must not exceed 0.2 hectares in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga and Birštonas, and 0.3 hectares in other towns. 4. If the size of a plot of land, held by the owner, was at least 0.04 hectares larger than the size of a plot of land he presently utilises, he shall, if possible, additionally be transferred into his ownership a new plot of land without payment, the size whereof is at least 0.04 hectares, designated for individual building and other purposes. The total area of the plot of land a citizen utilises, which is transferred into his ownership without payment, and of the new plot of land, additionally transferred into his ownership without payment, must not exceed the size, set by the Government, of the area of a new plot of land transferred without payment into ownership for individual building and other purposes in that town. 5. In case the area of a plot of land within the town limits, which has been restored or transferred without payment into the ownership of a citizen, is smaller than the area of the plot of land to which, pursuant to this Law, his rights of ownership are being restored, the State shall compensate him for the difference in the plots of land according to Article 16 of this Law. 2. The petitioner maintains that Paragraphs 2, 3, 4 and 5 of Article 5 of the Law do not

11 11 provide for the returning of the land in kind, which, prior to 1 June 1995, was situated within the territories assigned to towns. It is not provided to return the land in kind also in cases when it is vacant, not used by anyone, used to satisfy non-public needs or when it is planned to be used for residential houses construction, common use of residents or for other public needs in the future according to planning projects of these vacant territories. In the opinion of the petitioner, it is impossible to base the non-returning of this land in kind on public needs as other persons acquire this land for personal use. The petitioner has doubts whether Paragraphs 2, 3, 4 and 5 of Article 5 of the Law are in compliance with Article 23 of the Constitution. 3. As mentioned before, the petitioner requests the Constitutional Court to investigate whether Paragraphs 2, 3, 4 and 5 of Article 5 of the Law are in compliance with Article 23 of the Constitution. It needs to be noted that the conditions for restoration of the rights of ownership to urban land are established in Paragraph 2 of Article 5 of the Law. In Paragraphs 3, 4 and 5 of Article 5 of the Law pointed out by the petitioner the conditions for restoration of the rights of ownership to urban land are particularised. Taking account of this, subsequent to the petition of the petitioner, the Constitutional Court will investigate whether Paragraph 2 of Article 5 of the Law to the extent that it provides that vacant (not built up) land shall not be returned in kind is in compliance with Article 23 of the Constitution, and whether Paragraphs 2, 3, 4 and 5 of Article 5 of the Law are in compliance with Article 29, Paragraph 1 of Article 46, Paragraphs 1 and 2 of Article 47 of the Constitution and Article 8 of the Constitutional Law. 4. Article 23 of the Constitution provides: Property shall be inviolable. The rights of ownership shall be protected by law. Property may only be seized for the needs of society according to the procedure established by law and must be adequately compensated for. This article of the Constitution establishes the principle of inviolability of property, which means that the right is guaranteed for the subject of ownership to demand that other persons not violate his rights of ownership. The legislature has the duty to pass laws protecting owners rights of ownership from any unlawful encroachment. The Constitution guarantees that no one may seize property in an arbitrary manner and not on the basis of law. The seizure of property for the needs of society is understood as an individual decision concerning seizure of private property held as private ownership which is made in every concrete case according to the procedure established by law (the Constitutional Court s ruling of 18 June 1998). Paragraph 3 of Article 23 of the Constitution indicates the needs of society, for which property may be seized according to the procedure established by law and must be adequately

12 12 compensated for. These are interests of either the whole or part of society. The state, while implementing its functions, is constitutionally obligated to secure and satisfy such interests. When property is seized for the needs of society, one must strive for a balance between various legitimate interests of society and its members. The needs of society, for which property is seized under Paragraph 3 of Article 23 of the Constitution, are always particular and clearly expressed needs of society for a concrete object of property. Under the Constitution, it is permitted to seize property (by adequately compensating for) only for such public needs which would not be objectively met if a certain concrete object of property were not seized. One must establish fair compensation for the property seized for the needs of society. This provision of Paragraph 3 of Article 23 of the Constitution means also that the person whose property is being seized for the needs of society has the right to demand that the established compensation be equivalent in value for the property seized. The Constitutional Court notes that in the context of Paragraph 3 of Article 23 of the Constitution, wherein seizure of property for the needs of society by adequately compensating for is established, the relations regulated in the impugned legal provisions have certain peculiarities. These peculiarities are determined by the fact that, according to the procedure established by the Law, the rights of ownership to the existing real property (including land) which was nationalised by the occupation government are restored also by taking account of the social and economic as well as other essential changes related to ownership, which took place during the period after the unlawful nationalisation of the said property. Due to the aforesaid essential changes, as well as taking into consideration the actual possibilities of the State of Lithuania, it is impossible to restore all the rights of ownership, infringed by the occupation government, by returning all the existing real property (including land) in kind. It is held in the Preamble to the Law that the existing real property shall be returned to the citizens, and in the event it is impossible to do so, they shall be compensated fairly. The Constitutional Court holds that the discretion of the legislature to establish the conditions and procedure for restoration of the rights of ownership is objectively conditioned by the fact that during the time period after the unlawful nationalisation the system of ownership relations changed in essence, however, by establishing the conditions and procedure for restoration of the rights of ownership to the existing real property (including land) by law, one should take into consideration the constitutional principles of the protection of the rights of ownership. 5. Paragraph 2 of Article 5 of the Law provides that the rights of ownership to the land which, prior to 1 June 1995, was situated within the territory that was, in the prescribed manner, assigned to towns shall be restored:

13 13 1) by transferring without payment into the ownership of the citizens, who have residential houses or other structures by right of ownership, a plot of land in use by them, the boundaries whereof are established in the territorial planning documents (not exceeding 0.2 or 0.3 hectares) adjoining these structures; 2) by transferring without payment into the ownership of the citizens a plot of land in use by them, the boundaries whereof are established in the territorial planning documents (not exceeding 0.2 or 0.3 hectares) for another purpose (kitchen garden, garden and other); 3) when a utilised plot of land adjoining the structures lies within the land previously held by right of ownership, which is larger than 0.2 or 0.3 hectares respectively, this larger utilised plot of land as well as the existing vacant (not built up) area of land plot in use shall be transferred into the right of ownership without payment, regardless of the drawn up territorial planning documents of that locality, but not exceeding 1 hectare of the total area in Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas, and not exceeding 1.5 hectares of the total area in other towns; 4) by transferring without payment a new plot of land, either arranged according to the procedure established by the Government or a non-arranged land plot, into the ownership of a citizen for individual building. The conclusion should be drawn from these provisions that, first, in cases when a citizen does not have a residential house or any other structure adjoining the land previously held by him by right of ownership, he is not given back the vacant (not built up) land in kind, i.e. it is purchased, and, second, in cases when the utilised plot of land previously held by him by right of ownership is adjoining the residential house or another structure held by the citizen by right of ownership, he is given back the plot of land not exceeding 1 or 1.5 hectares. The remaining portion of the plot of land, even though it is vacant (not built up), is not returned but is purchased by the state. 6. Article 12 of the Law provides for the cases when the state purchases land. The purchase of land means that the land is not returned in kind. Under Item 3 of Article 12, the land shall be purchased by the state if it was situated, prior to 1 June 1995, within the territory assigned to towns in the prescribed manner, excluding the exception laid down in Paragraph 2 of Article 5 of this Law, when a utilised plot of land adjoining the residential houses or structures lies within the land held previously by right of ownership, the said plot is transferred into ownership without payment. This provision means that the portion of land which remains after the utilised plot of land (not exceeding 1 or 1.5 hectares respectively) adjoining the residential house or other structure has been transferred to the citizen without payment is purchased by the state as well. As mentioned before, it is held in the Preamble to the Law that the existing real property shall be returned to the citizens, and in the event it is impossible to do so, they shall be compensated

14 14 fairly. The Constitutional Court has held that the provision that, providing there is no possibility of restoring 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 (rulings of 27 May 1994, 22 December 1995, and 18 June 1998). Thus, the fact that the Law provides for the purchase of the land in itself does not violate the principle of inviolability of property. Under Paragraph 2 of Article 5 of the Law, the citizens, to whom it is impossible to restore the right of ownership to land in kind to the land they previously held, may be transferred other plots of land without payment. Under the Law, for these purposes also the vacant (not built up) land is used which its owners seek to be given back in kind. Such land is purchased by the state. It needs to be noted that in such a manner the rights of ownership to the nationalised land of a greater number of owners to whom it is impossible to return their previously held urban land in kind are in part restored in kind by transferring them the plots of land of the established area lying in the territories of towns as partial compensation in kind. While one takes account of the changes of the ownership-related relations which occurred during the period after the unlawful nationalisation, the purchase of a certain part of private vacant (not built up) land in an attempt to restore the rights of ownership to the nationalised land for as many owners as possible by transferring them the plots of land into ownership without payment reflects the interest of society. Paragraph 2 of Article 5 and Item 3 of Article 12 of the Law are worded in such a manner that in cases when a citizen does not possess a residential house or another structure adjoining the land plot previously held by him by right of ownership, this vacant (not built up) land is not given back to him but purchased by the state. When a citizen possesses a residential house or another structure adjoining the land plot previously held by him by right of ownership, he is given back the plot of land of the established size, while the portion of the land plot exceeding the size established in the Law is also purchased by the state. In both cases the vacant (not built up) land is purchased by the state regardless of the fact whether there is a need of society for this land or there is not such a need. Such legal regulation may not be regarded as constitutionally grounded as the returning or non-returning of the land in kind must be determined not by the presence or absence of respective buildings but by a real and reasonable need of society for the particular land. 7. Taking account of the arguments set forth, it should be concluded that Paragraph 2 of Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property to the extent that it provides that vacant (not built up) land is not returned in kind if the citizen does not have a residential house or another structure adjoining the land previously held by him by right of ownership even though there is not any particular need of society for this vacant (not built up) land, and Item 3 of Article 12 of the Law to the extent that it provides that the portion

15 15 of land which remains after the utilised plot of land adjoining the residential house or other structure has been transferred to the citizen without payment is purchased by the state even though there is not any particular need of society for this vacant (not built up) land conflict with Paragraph 3 of Article 23 of the Constitution. 8. The petitioner maintains that Paragraphs 2, 3, 4 and 5 of Article 5 of the Law which establish different conditions of returning urban and rural land as well as Item 3 of Article 12 of the Law providing for the purchasing of land assigned to towns prior to 1 June 1995 conflict with Article 29 of the Constitution. Article 29 of the Constitution provides: All persons shall be equal before the law, the court, and other State institutions and officers. A person may not have his rights restricted in any way, or be granted any privileges, on the basis of his or her sex, race, nationality, language, origin, social status, religion, convictions, or opinions. In the norms of Article 29 of the Constitution the principle of the equality of all persons is entrenched. It means an inborn human right to be treated equally with the others. Paragraph 1 of Article 29 of the Constitution establishes a formal the equality of all persons. In Paragraph 2 of Article 29 of the Constitution the principle of non-discrimination of and not granting privileges to persons is consolidated. It needs to be noted that the conditions for the restoration of the rights of ownership to land as established in Paragraphs 2, 3, 4 and 5 of Article 5 and Item 3 of Article 12 of the Law differ on the basis of objects but not of subjects of the rights of ownership, therefore, this regulation does not violate the constitutional principle of the equality of persons. Taking account of this, it should be concluded that Paragraphs 2, 3, 4 and 5 of Article 5 and Item 3 of Article 12 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property are in compliance with Article 29 of the Constitution. 9. In the opinion of the petitioner, Paragraphs 2, 3, 4 and 5 of Article 5 and Item 3 of Article 12 of the Law conflict with Paragraph 1 of Article 46 of the Constitution. Paragraph 1 of Article 46 of the Constitution provides: Lithuania s economy shall be based on the right to private ownership, freedom of individual economic activity, and initiative. This provision of the Constitution establishes the main values upon which Lithuania s economy is based: private ownership, freedom of individual economic activity, and initiative. Paragraphs 2, 3, 4 and 5 of Article 5 and Item 3 of Article 12 of the Law regulate relations of the restoration of citizens rights to the existing real property, i.e. different relations from those the fundamentals whereof are established in Paragraph 1 of Article 46 of the Constitution.

16 16 Taking account of this, it should be concluded that Paragraphs 2, 3, 4 and 5 of Article 5 and Item 3 of Article 12 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property are in compliance with Paragraph 1 of Article 46 of the Constitution. 10. According to the petitioner, Paragraphs 2, 3, 4 and 5 of Article 5 and Item 3 of Article 12 of the Law conflict with Article 47 of the Constitution. The request was linked with Paragraph 1 of Article 47 of the Constitution, as well as Paragraph 2 of the said article to the extent that it provides that the non-agricultural land plot acquisition procedure, terms and conditions, as well as limitations, for the national entities as well as foreign entities conducting economic activities in Lithuania which are specified in Paragraph 2 of the said article shall be established by the constitutional law. The Constitutional Court will investigate the compliance of the impugned provisions with Paragraph 1 of Article 47 of the Constitution, as well as Paragraph 2 of the said article to the extent that it provides that the non-agricultural land plot acquisition procedure, terms and conditions, as well as limitations, for the national entities as well as foreign entities conducting economic activities in Lithuania which are specified in Paragraph 2 of the said article shall be established by the constitutional law Paragraph 1 of Article 47 of the Constitution provides: Land, internal waters, forests, and parks may only belong to the citizens and the State of the Republic of Lithuania by right of ownership. This norm of the Constitution establishes which objects may belong to citizens and the State of the Republic of Lithuania by right of ownership. One of these objects is land. The impugned provisions of the Law do not provide that the objects, including land, specified in Paragraph 1 of Article 47 of the Constitution might belong not to citizens and the State of the Republic of Lithuania by right of ownership. Taking account of the arguments set forth, it should be concluded that Paragraphs 2, 3, 4 and 5 of Article 5 and Item 3 of Article 12 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property are in compliance with Paragraph 1 of Article 47 of the Constitution Paragraph 2 of Article 47 of the Constitution provides: Municipalities, other national entities as well as those foreign entities conducting economic activities in Lithuania which are specified by the constitutional law in compliance with the criteria of European and Transatlantic integration which the Republic of Lithuania has embarked on may be permitted to acquire into their ownership non-agricultural land plots required for the construction and operation of buildings and facilities necessary for their direct activities. The land plot acquisition procedure, terms and conditions, as well as limitations shall be established by means of a constitutional law.

17 17 The impugned provisions of the Law regulate relations of the restoration of citizens rights to the existing real property, i.e. different relations from those established in Paragraph 2 of Article 46 of the Constitution wherein it is specified that the non-agricultural land plot acquisition procedure, terms and conditions, as well as limitations, for the national entities as well as foreign entities conducting economic activities in Lithuania, which are specified therein, shall be established by the constitutional law. Taking account of this, it should be concluded that Paragraphs 2, 3, 4 and 5 of Article 5 and Item 3 of Article 12 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property are in compliance with the provision of Paragraph 2 of Article 47 of the Constitution providing that the non-agricultural land plot acquisition procedure, terms and conditions, as well as limitations, for the national entities as well as foreign entities conducting economic activities in Lithuania, which are specified therein, shall be established by the constitutional law. 11. The petitioner has doubts whether Paragraphs 2, 3, 4 and 5 of Article 5 and Item 3 of Article 12 of the Law are in compliance with Article 8 of the Constitutional Law on the Subjects, Procedure, Terms, Conditions of, and Limitations on the Acquisition of the Land Plots for Ownership Provided for in Paragraph 2 of Article 47 of the Constitution In the course of the consideration of the issue raised by the petitioner, it needs to be noted that under the Constitution, constitutional laws are ones which are directly referred to as such in the Constitution and are adopted pursuant to the procedure established in Paragraph 3 of Article 69 of the Constitution, as well as the laws entered on the list of constitutional laws and adopted pursuant to the procedure established in Paragraph 3 of Article 69 of the Constitution. Paragraph 3 of Article 69 of the Constitution provides: Constitutional laws of the Republic of Lithuania shall be deemed adopted if more than half of all the members of the Seimas vote in the affirmative. Constitutional laws shall be amended by at least a three-fifths majority vote of all the Seimas members. The Seimas shall establish a list of constitutional laws by three-fifths majority vote of the Seimas members. Constitutional laws differ from other laws in the procedure of their adoption and amendment. The special place of constitutional laws in the system of legal acts is determined by the Constitution itself. Constitutional laws may not be amended or abolished by law. Thus, it is ensured that the social relations regulated by constitutional law be not regulated in a different manner and that greater stability of the social relations regulated by constitutional law be guaranteed. Alongside, it needs to be noted that constitutional laws may not conflict with the Constitution, while laws may not conflict with the Constitution and constitutional laws. Under the Constitution, the questions of the compliance of a constitutional law with the Constitution or that of a law with a constitutional