Detailed comments regarding the non-return of allegedly nationalized or otherwise unlawfully expropriated residential property in Lithuanian cities
The matter is complicated, because the old-new rulers of Lithuania have taken great pains already as early as 1989, to camouflage their steps and plans to stay in power by usurping the valuable plots of land of the legitimate land-owners.
They adopted two “special” laws in 1991 and in 1997 allowing them to carry through only a so-called “limited restitution”*) instead of a “restitutio in integrum” – which, in practice, means that the so-called “Boards for the restructuring of land-holdings” are free to refuse to restore the landed property to the legitimate owners or their heirs in natura (plots of land in the cities are meant here, only these are really valuable and objects of speculation in order to make money with). The bulk of the arable agricultural land has already been returned in natura, however, with the exception of the most fertile plots, with the exception of the plots around the lakes, besides the rivers, by the seaside, plots with touristical attraction etc., for these plots the same is valid as for the plots of land in the cities.
*) “Limited” restitution means that -
1. only plots of land in the cities up to 2000 square metres are (theoretically) returned to the legitimate owners or their heirs in natura, but only in case, a certain plot of land is “free”, i.e. if there are no people living on the premises, to whom the unlawful occupational regime had handed over the landed property for use free of charge. That means that, practically in no cases, the landed plots in the cities are given back in natura to the legitimate owners or their heirs
2. From 1991 the above “Boards for the restructuring of land-holdings” were beginning to “sell” these plots of land (of about 100.000 legitimate land-owners or their heirs as alleged “state property” to private persons (collaborators of the former unlawful occupational regime; high-ranking members of the former nomenklatura of the unlawful occupational regime; former KGB officers, former militia officers, former officials of the youth organization of the unlawful occupational regime etc). The price was to be paid in so-called “investment cheques”, which these people had been granted in 1991 by the government for acquiring real estate and other property as property of the state.
3. One example: If the heir of a legitimate owner had inherited a valuable plot of land in the city centre of say 3000 square metres, it is examined -in a first step-, whether this plot of land is still free, i.e., whether people inhabit the legitimate owner’s residential property, which is always the case (be it since times before 1991 or after 1991, having “bought” the legitimate owner’s land “from the property of the state”), after this -in a second step- it is decreed that the property cannot be returned in natura, but has to be compensated, in a third step the plot of land to be “compensated” is being reduced to only 2000 square metres by way of the “Special law” of 1991. In a fourth step the legitimate owner respectively heir is put on a very very long list of so-called “pretenders” to a so-called “restitution of ownership rights” (nota bene: not a restitution of property). In case a return in natura is “impossible” (because people live there) the above-mentioned “Special laws” stipulate that compensation can be granted either by handing over into the ownership of the legitimate owner or his heir “a plot of land, up to 2000 sq.metres, of the same value in the same place”. However, as no plots of land are left “in the same place”, either because in the central districts of the cities there are -usually- no free plots of land left at all, or because owners of sandy and swampy plots near the state borders have “exchanged” these valueless plots for remaining free plots of land of highest value in the cities*) [according to the second “Special law” the municipalities, working hand in hand with the “Boards for the restructuring of land-holdings” (really a telling name) have been trying to create such new plots of land on the outskirts of the cities, often near motorways or polluting factories. It goes without saying that such a plot in such “newly developed” residential districts has only a tiny fraction of the value of the landed property not returned to the legitimate owners or their heirs in natura, namely approximately from 0.1 % to 0.5 % of the original value, to say nothing of the reduction to only 400 - 600 square metres at the most].
Formerly, a legitimate owner (downsized to a “pretender” to ownership rights, not to restitution of property) could alternatively choose a compensation in money. As the “Special laws” were (theoretically) stipulating a compensation in land or money of the same value, the post-communist governments established directives regarding the value of the landed property not returned in natura, they arbitrarily fixed this value at about 5-8% of the market value. The current situation is as follows: the departments for urban development have declared to be unable to create new residential districts for lack of space, the legitimate owners respectively their heirs are informed that they have to travel around the country to look for landed plots (of even less value) in the surrounding villages or even further away themselves. The “Boards for the restructuring of land-holdings” force upon those who live abroad, and who have neither time nor money for such travelling sprees or who simply keep on regarding the procedures of the state’s organs as a violation of a peremptory rule of general international law, shares of ailing state-owned enterprises of even less value (being of the non-marketable type), having nominally about only 0.5% of the market value.
*) see attached article “Land reform – Lithuanian style”
The legal situation with regard to the domestic Lithuanian constitution and to decisive rulings by the Lithuanian constitutional court:
A. The telling preambles to the above-mentioned „special laws“ adopted by the Lithuanian parliament, say:
„The proprietary rights of citizens of the Lithuanian Republic, acquired prior to the occupation, have not been abolished and continue to exist“
B. The first part of article 135 of the Lithuanian constitution stipulates that the Lithuanian Republic is guided by the generally recognized principles and norms of international law. One of these generally recognized legal principles of international law is the priority of international law over domestic (national) law.
C. Lithuania has, among others, ratified the „Vienna Convention on the Law of Treaties“ (Article 27 and others) in 1992
D. The Lithuanian constitutional court, in its decision of May 27, 1994, in case Nr. 12/93, pointed out:
„ … By these arbitrary acts of the occupational regime no legitimate state property could arise and did not arise, for „ex iniuria ius non oritur“.
E. (According to domestic Lithuanian Law with regard to the above-mentioned „Special laws“) the Supreme Court of the Lithuanian Republic stressed in its decision of September 6, 1999, in the civil case Nr. Nr. 3k-3-384/99:
„as long as no final decision on the question of the restoration of a person‘s proprietary rights to a concrete and still existing landed property has been adopted, this property constitutes an object of dispute and, as a consequence, this property cannot be surrendered into the ownership of third persons, as this might be tantamount to an ongoing violation of the proprietary rights of the former owner“.
The legal status according to a peremptory norm („ius cogens“) of general international law with regard to the „restitutio in integrum“ of landed property
A peremptory norm (also called jus cogens or ius cogens) is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted.
According to a peremptory norm all “nationalizations”, dispossessions, expropriations, adjudications of the residential property of legitimate owners to third persons etc. are null and void from the beginning. The inevitable consequence is that, after the collapse of such an unlawful occupational regime, all nationalized or otherwise expropriated residential property has to be returned to the legitimate owners respectively their heirs, i.e. a “restitutio in integrum” (from which no derogation is ever permitted) has to be carried through.
The international community does regard as “unlawful occupational regimes” the former Soviet Russian occupational regime in Lithuania (and the other two Baltic States) and the Turkish occupied northern part of Cyprus, the so-called “Northern Cypria”. To my mind no other “unlawful occupational regimes” are existing, neither the former Warsaw-Pact states nor the former German Democratic Republic count among “unlawful occupational regimes”.
The Grand Chamber of the European Court of Human Rights, by virtue of a number of decisions, has established the same – a “restitutio in integrum” has to be carried through in such cases, especially in the case Loizidou v. Turkey (18 December 1996, case file no. 40/1993/435/514 (US Department of State: „The ruling reaffirmed the validity of property deeds issued prior to 1974“ http://en.wikipedia.org/wiki/Loizidou_vs_Turkey).Later on there were other likewise positive decisions by the ECHR in the cases of Myra Xenides v. Turkey (23 May 2007) and Demades v. Turkey (22 April 2008) for the same reasons:
Unlawful occupational regime, validity of the first protocol, although expropriation took place before the coming into force of the Convention.
The Second Chamber of the ECHR, influenced by the judge-reporter, who is a Lithuanian and a disciple of two main collaborators of the unlawful occupational regime*), does not comply with these Grand Chamber decisions, as concerns Lithuania, i.e. because Lithuania is systematically violating the above-mentioned “ius cogens” and is not willing to reverse the process of the so-called “limited restitution”.
*) see attached article “The judicial scandal of the twentieth century – systematic violation of a peremptory rule of international law by Lithuania”
The legal situation concerning the right of Lithuanian owners of residential property to rei-vindicatio proceedings
In cases, when residential buildings had unlawfully been either acquired by third persons during respectively from organs of the unlawful occupational regime, or had unlawfully been acknowledged as the property of third persons (despite the fact that the legitimate owners were registered in the register of landed property, and with the legitimate owners being no party to these “proceedings”) by virtue of decisions of “People’s courts” as organs of the unlawful occupational regime, the legitimate owners or their heirs had the right to lodge an appropriate action requesting the court to institute rei-vindicatio proceedings in order to analyze the alleged property title of the current occupants of his/her residential property.
This right was guaranteed by the second part of article 14 of the Lithuanian Code of Civil Procedure (1964 edition) -
Part 2 of article 14 of the Lithuanian Code of Civil Procedure (1964):
(Lithuanian original) 2. Sprendimo, nutarties ir nutarimo privalomumas neatima iš suinteresuotų asmenų galimumo kreiptis į teismą, kad būtų apgintos teisės ir įstatymo saugomi interesai, dėl kurių ginčas nėra teismo išnagrinėtas ir išspręstas.
(Translation: “The binding nature of a judgment, decision or ruling does not take away from third persons the possibility to turn to the court for having their rights and interests, protected by law, secured, with regard to which the law suit has neither been examined nor decided”).
Even according to the “laws” valid during the period of the unlawful occupational regime in Lithuania – legitimate owners, not being a party to the “proceedings” of
de facto expropriations by People’s courts’ decisions (see above) were entitled to institute rei-vindicatio proceedings [Elisejkin: „Sudebnoe ustanovlenie faktov, imejuščie juridičeskoe značenie“ („The establishment of facts of legal importance“), Moscow 1973, p.. 78; Levšin: Annotation 4 to Article 208, in: Kallistratova, Lesnickaja, Pučinskij: „Kommentarij k GPK RSFSR“ (Commentary to the Code of Civil Procedure of the Russian Soviet Socialist Republic), Moscow, 1976, p. 274; Mikelėnas: Civilinis Procesas, Antroji Dalis, Antrasis Leidimas („The Civil Proceedings, Part two, Second Edition“, Vilnius, 1997, p. 130)]
Last not least the Supreme Court of Lithuania confirmed the validity of this stipulation deciding -
(Lithuanian original) LIETUVOS AUKŠČIAUSIOJO TEISMO CIVILINIŲ BYLŲ SKYRIAUS TEISĖJŲ KOLEGIJŲ NUTARTYS
1.3. Dėl teismo sprendimo privalomumo ir prejudicinės reikšmės
„Įsiteisėjęs teismo sprendimas šalims įgyja res judicata galią, t .y. šalys neteka teisės kitoje byloje ginčyti įsiteisėjusiu teismo sprendimu nustatytų faktų bei teisinių santykių ir reikšti tų pačių reikalavimų tuo pačiu pagrindu (CPK 61 str., 150 str. 2 d. 3 p., 233 str. 3 d.).
Teismo sprendimo privalomumas ir teismo sprendimo res judicata galia yra skirtingi civilinio proceso teisės institutai. Nors įsiteisėjęs teismo spren¬dimas yra visiems privalomas (CPK 14 str. 1 d.), tačiau tiems, kurie nebuvo byloje dalyvaujančiais asmenimis, teismo sprendimas neturi nei res judicata, nei prejudicinės galios (CPK 61 str., 233 str. 3 d.). Todėl šie asmenys turi teisę kreiptis į teismą CPK 14 straipsnio 2 dalyje nustatytu atveju“.
Kasacinės instancijos teismo Civilinė byla Nr. 3K–3–203/2000
pranešėjas V. Mikelėnas,
apeliacinės instancijos teismo
pranešėjas A. Burdulis,
pirmosios instancijos teismo
teisėja L. Daukšienė
(Translation) DECISIONS BY THE SENATE FOR CIVIL CASES OF THE LITHUANIAN SUPREME COURT
1.3. Concerning the binding nature of a court judgment and the significance of precedent
„A final court judgment involves the effect of res judicata for the parties to the action, i.e. the parties both perempt the right to contest the facts and legal relations established by the final court judgment and to make the same claims on the same grounds (Code of Civil Procedure, first part of article 61, item 3 of article 150, part 3 of article 233).
The binding nature of a court judgment and the effect of res judicata, however, are different provisions of the law of civil procedure. Although a final court judgment is binding for all (Code of Civil Procedure, first part of article 14), for those, however, who were not a party to the proceedings, a court judgment has neither a res judicata nor a precedent effect (Code of Civil Procedure, article 61, part 3 of article 233). Therefore these persons have the right to apply to a court under the circumstances established by the second part of article 14”.
Court of the cassation instance Civil case Nr. 3K–3–203/2000
reporter V. Mikelėnas,
reporter of the court of appeal instance A. Burdulis,
judge of the court of the first instance L. Daukšienė
e.g. in the well-known case Vlasia Grigore Vasilescu v. Romania, 6 August 2006, 60868/00), in which the Grand Chamber of the European Court of Human Rights had decided that “the right of access to a court was violated on account of the dismissal of Mr. Vasilescu’s action to recover possession of the property without any analysis by the courts of the validity of the alleged property title of the occupants of his houses. His case had not been given a fair hearing, which is why there has been a violation of article 6 § 1 of Convention”.
e.g. in the case Vasilescu v. Romania, 22 May 1998 No. 27053/95 (a different person than the above-mentioned), in which the Grand Chamber had stated that
“the circumstance that the property of the applicant – several decades before – was de facto confiscated did not take away from him the right to defend his violated ownership right, and the ownership right as one of the principal civil rights must be protected in the court”.