The Constitutional Court of the post-Soviet republic of Lithuania â Political tool of the regime
On September 11, 2013 the judges of the Constitutional Court of Lithuania decided, that the criterions having been determined by the regimeâs government for the compensation of the plots of land, which the regime does not return to the lawful owners â contrary to the stipulations of âius cogensâ (of general international law) – was not contrary to the constitution. Especially the article of the constitution, which stipulated that a âjustâ compensation had to be paid for any dispossessions, did not apply for real estate, having been nationalized nationwide by the occupational regime.
(see also http://human-rights-lithuania.org/wordpress/?p=2295)
Short Analysis of the facts:
Having regard to the various analyses and commentaries outlined in great detail and published under www.human-rights-lithuania.org (http://human-rights-lithuania.org/wordpress/?p=2354 ; http://human-rights-lithuania.org/wordpress/?p=2416 ; http://human-rights-lithuania.org/wordpress/?p=2412 ; http://human-rights-lithuania.org/wordpress/?p=2420 ;âŠ http://human-rights-lithuania.org/wordpress/?p=1470), proving clearly and definitely that all declarations of expropriation and nationalization as well as all measures having been based on them and not even bringing about a âde factoâ dispossession, are null and void in accordance with a peremptory norm of general international law, from which no state is allowed to deviate, will subsequently be outlined explicitly and in length:
Brazauskas, chief of the communist party in Lithuania
The regimeâs law âFor the restoration of the proprietary rights of the citizens of the republic of Lithuania to the still existing real estateâ, which, meanwhile, has been altered, changed, manipulated dozens of times by the representatives of the current post-Soviet regime, being composed of former collaborators of the unlawful occupational regime and their disciples (in order to be better adapted to the interests of the beneficiaries of this law â see below), which was taken as a basis by the judges of the constitutional court of Lithuania for being able to arrive at their above decision, itself was based exclusively on the allegation that the proprietary rights of the lawful owners of real estate had â allegedly â been abolished by a declaration of the so-called âPeopleâs dietâ of July 20, 1940. This declaration involved â according to the inappropriate opinion of the regimeâs organs and representatives â an overall transfer of all real estate in Lithuania into public property.
Chairman and his henchmen: The so-called People’s Diet, July 20, 1940
Apart from the fact that the aforesaid declaration involved merely a land reform solely regarding agrarian property, leaving 30 hectares of land for each farmerâs family for indefinite use and enjoyment, also confirming the fact that this land was the “personal property of the farmer” (which confirmation tells everything) and explicitly denouncing all attempts at imposing a system of collectivization on the farmers as a crime, the above mentioned analyses and comments have proven â incontestably and even never having been challenged – that the aforesaid âdeclarationâ, having been adopted by an organ of the unlawful occupational regime in Lithuania, was null and void from the beginning (compare the decision of the International Court of Justice of 1971, published in ICJ-Reports 1971,16 p. 56, Â§ 125: âThe International Tribunal in The Hague makes it absolutely clear that all states of the world must not recognize the validity of any acts adopted or performed by organs of an unlawful occupational regime in, for or on behalf of an illegally occupied country and to consider such acts null and void from the beginningâ). By the way, the German Constitutional Court has also expressed its opinion in accordance with âius cogensâ of International law:
Decisions of October 25, 2004, Nr. 2 BvR 955/00 and 1038/01) âa land-owner does only then forfeit his proprietary rights, if a state, which is sovereign in accordance with international law, abolishes the land-ownerâs proprietary rights legitimately and for a longer time in accordance with international lawâ (Source: JURIS, marginal number 78). According to these two decisions the land-ownerâs right to ârestitutio in integrumâ is protected by article 14 of the German Constitution (âProperty and right of inheritance are guaranteedâ). That is why article 1 of the first protocol of the European Convention of Human Rights does also protect the property of Lithuanian land-owners, as their proprietary rights have never been abolished and continue to exist.
From this it follows that Protocol 1 (1) of the aforesaid Convention is valid for the lawful owners of real estate concerned in cases of âde factoâ dispossessions by organs of an unlawful occupational regime.
With that is has been made perfectly clear that the proprietary rights of the lawful owners of real estate in Lithuania have never been abolished âde jureâ, which has he legal consequence that they have continued to exist ever since the unlawful occupation of Lithuania until this very day. An alleged âRestoration of abolished proprietary rightsâ basing on a law is â consequently â not only superfluous, but legally impossible and consequently illegitimate. This is why the aforesaid âlawâ has no legitimate basis, having been used by the regime as its sole justification for adopting this âlawâ, it constitutes a violation of a peremptory norm of general international law, serving only one purpose, namely to deny the lawful owners of real estate their lawfully acquired real estate by implementing criminal plans by means of a âlawâ. What special kind of regime is ruling Lithuania, can be learned from the recently made and unmistakably voiced public statement of former chief of the Lithuanian board for the investigation of crimes in the financial sector, general Vitalijus Gailius, now member of the Lithuanian parliament: âA state dominated and ruled by a gang of criminalsâ Vitalijus Gailius
The Lithuanian judges of the Constitutional Court, who are, by the way, jurists having been trained and instructed as well as educated in accordance with the communist âunderstanding of the lawâ by organs of the unlawful occupational regime, even former higher ranking collaborators are among them (e.g. the former colonel of the âPeopleâs Militiaâ, Tamara Birmontiene, who had repeatedly libelled and vilified the Lithuanian freedom fighters against the unlawful occupational regime as âbanditsâ) are violating â by means of their aforesaid decision â also the legal principle of ârestitutio in integrumâ being also part of a peremptory norm of general international law, according to which the real estate, having been withheld âde factoâ from the lawful owners of this real estate by organs of the unlawful occupational regime has to be returned to these lawful owners âin naturaâ without delay, after the unlawful occupational regime has collapsed.
The judges of the Lithuanian Constitutional Court are justifying the denial of the regime, to pay to those lawful owners, to whom it does not return their real estate âin naturaâ, a financial compensation according to the market value, on the one hand, with this, that the market value of the real estate not returned â at the time of the âillegal nationalizationâ (on that point see further above: alleged âdeclaration of nationalizationâ or other measures by the unlawful occupational regime are, however, null and void from the beginning) has to be included (âatsiĆŸvelgtina ne tik ÄŻ negrÄ
ĆŸinamo natĆ«ra turto dabartinÄ rinkos vertÄ, bet ir ÄŻ ĆĄio turto vertÄ tuo metu, kai jis buvo neteisÄtai nacionalizuotas ar kitais neteisÄtais bĆ«dais nusavintasâ).
However, the objection has to be made that this point is in stark contrast to the case law of the European Court of Human Rights, according to which the market value at the time of a decision by the ECHR, is determinative for the amount of the financial compensation. With their decision the Lithuanian judges are high-handedly overriding the corresponding case law of the European Court of Human Rights. However, Lithuania, being a party to the European Convention of Human Rights, is bound to both the case law and the decisions of the European Court of Human Rights, this point of the decision of the Lithuanian judges is null and void for that reason alone.
The quotation of certain cases of former owners of property in the former “German Democratic Republic” is irrelevant, as there was no unlawful occupation in this country, in contrast to Lithuania, the same applies to cases of owners in the former Warsaw-Pact states, which were sovereign states under international law and were entitled to pass nationalization legislation. As concerns Germany, there are unequivocal decisions of October 25, 2004, Nr. 2 BvR 955/00 and 1038/01 of the German Constitutional Court stressing that âa land-owner does only then forfeit his proprietary rights, if a state, which is sovereign in accordance with international law, abolishes the land-ownerâs proprietary rights legitimately and for a longer time in accordance with international lawâ (Source: JURIS, marginal number 78). According to these two decisions the land-ownersâ right to ârestitutio in integrumâ is protected by article 14 of the German Constitution (âProperty and right of inheritance are guaranteedâ). That is why article 1 of the first protocol does also protect the property of Lithuanian land-owners, as their proprietary rights have never been abolished and continue to exist [please compare the wording of article 17 (2) of the Universal Declaration of Human Rights: âNo one shall be arbitrarily deprived of his propertyâ].
Alleged âlimited financial means of the stateâ (ribotos materialinÄs finansinÄs valstybÄs galimybÄs)
The imperative ârestitutio in integrumâ (return of the property âin naturaâ) resulting from the stipulations of a peremptory norm of general international law would not have required any funds of the state whatsoever, at most simple decisions on the administrative level could have been necessary, ordering the return of the corresponding real estate to the lawful owners respectively to their heirs. The question of an optional (symbolical) compensation of the unlawful holders of the real estate respectively the houses of the lawful owners, would have been for the regime to decide. After all, the leading members of the current regime (as former collaborators of the unlawful occupational regime in Lithuania) were responsible for the transfer of the real estate of lawful owners to âdeserved communist party comradesâ, this being in contradiction to a peremptory norm of general international law. This argument, too, does come to nothing. In this connection it should be made mention of the fact that the Grand Chamber of the European Court of Human Rights has decided (case of Hentrich v. France, September 22, 1994, Nr. 13626/88/ 23/1993/418/497), that the state had had other options, which would have interfered with the proprietary rights either not at all or at least less), so that the measures, by which the state had interfered in a serious way with the proprietary right of an owner of real estate, were considered to have been a violation of article 6 of the Convention.
Egidijus Kuris, son of the former Soviet minister of “Justice” in unlawfully occupied Lithuania
Balance between the interests of the owner and the âjustified interests of societyâ (âÄźstatymu nustatant atlyginimo savininkams uĆŸ valstybÄs iĆĄperkamÄ ĆŸemÄ bĆ«dus ir tvarkÄ kartu turi bĆ«ti paisoma asmens ir visuomenÄs teisÄtĆł interesĆł pusiausvyros.â)
With regard to the methods of calculation issued by the government of the regime, especially as concerns the amount of an optional financial compensation, the judges of the Lithuanian Constitutional Court maintain that it had been necessary to establish âA balance between the interests of the owner and the justified interests of societyâ. What are they hiding behind this smokescreen? Firstly, no âInterests of the ownerâ are concerned, when the non-return of lawfully acquired real estate is at stake, but the âlawful proprietary rights of owners of real estateâ. As is generally known, these rights have constantly been denied to the lawful owners by the organs of the regime, among them also the former âPeopleâs judgesâ, also the current judges of the Lithuanian Constitutional Court. As a matter of fact, however, these proprietary rights have never effectively and âde jureâ been abolished by organs of an occupational regime, which is unlawful in accordance with a peremptory norm of general international law, which means that they have continued to exist ever since, up to the present day (compare these decisions by a Grand Chamber of the European Court of Human Rights: Vasilescu v. Romania, May 22, 1998, No. 27053/95; Vlasia Grigore Vasilescu v. Romania August 6, 2006 (No. 60868/00); Loizidou v. Turkey November 28, 1996 (No. 40/1993/435/514) â Accordingly, the applicant cannot be deemed to have lost title to her property as a result of Article 159 of the 1985 Constitution of the “TRNC”. It follows that the applicant, for the purposes of Article 1 of Protocol No. 1 (P1-1) and Article 8 of the Convention (art. 8), must still be regarded to be the legal owner of the land. The objection âratione temporisâ therefore fails.
The U.S. Department of State commented on this case:
âThe ruling reaffirmed the validity of property deeds issued prior to 1974â (although the confiscation of property occurred before the coming into force of the Convention for Turkey â no refusal by the ECHR to deal with this case âratione temporisâ).
âJustified interests of societyâ
Now the alleged âInterests of societyâ shall be scrutinized closely, which had â allegedly â demanded mandatorily that the real estate belonging to lawful owners, could not simply be returned to these lawful owners âin naturaâ, which would have been possible without any problems and without any laws.
As is well known, approximately one third of the Lithuanian population was either killed on the spot, tortured, deported to Siberian death camps or at least forced to flee abroad in order to evade extermination by organs of the unlawful occupational regime. This took place during the first occupation of Lithuania (1940/1941) and especially during the second unlawful occupation of Lithuania (starting from August, 1944, ending in late 1994 with the withdrawal of the Soviet occupational army.
Some of the NKVD auxiliary terrorists called “Istrebiteli”
Very many of the victims of the killings, tortures, deportations, exterminations as well as the bulk of the fugitives were lawful owners of real estate in Lithuania. Now what happened with the real estate, the lawful owners of which had been killed, tortured, deported to Siberian death camps or forced to flee abroad â by organs of the unlawful occupational regime? Right here the aforesaid decision (being against international law and especially against the consequences of a peremptory norm) by the judges of the Lithuanian Constitutional Court, who were trained by the Soviet communists, who have all the time been thinking and deciding (as judges) in a âSoviet communistâ way, becomes important in a decisive way.
NKVD members climbing a truck in order to burn the farmyards of innocent civilians
The above mentioned real estate â with the exception of privately owned farmland, which, by brutal force and by deporting hundreds of thousands of farmers to Siberian death camps, had been combined into collective farms and even Sovkhoses by organs of the unlawful occupational regime – , i.e. the real estate in cities and towns of Lithuania, was ânewly allocatedâ by various organs of the unlawful occupational regime, after the lawful owners had either been murdered, martyred, sent to Siberian death camps to perish there, or at least been forced to flee in order to evade imminent exterminationâ, which took place mostly this way: the ânew allocationâ to âdeservedâ comrades of the communist party of the unlawful occupational regime in Lithuania, without exception higher-ranking or petty collaborators of the unlawful occupational regime, to members of the NKVD, later on KGB, to Russian colonists (who had partly been settled on the land of lawful owners, deported to Siberian death camps or who had been burnt alive in their houses by either NKVD troops or terrorists of the auxiliary detachments called âIstrebiteli â Destroyersâ, being comprised by Lithuanian criminals and other scum of the country, was effected by means of decisions of either the âexecutive committeesâ of the cities and towns (currently âmunicipal administrationsâ) or by decisions of âPeopleâs judgesâ of special courts, who had been formed only for the purpose of newly deciding the proprietary rights to houses of killed , deported or fled lawful owners. – It goes without saying that also the members of the terrorist gangs of âIstrebiteli â Destroyersâ were rewarded for their âservicesâ (killing elderly persons, woman and children) by ânewly allocatingâ to them the real estate of lawful owners, having been killed before by them or by the NKVD. Both the âdecisionsâ of those âexecutive committeesâ and the âdecisionsâ of the aforesaid special peopleâs courts have to be considered to be null and void in accordance with a peremptory norm of general international law. (Sole exemptions as concerns decision of Peopleâs courts of an unlawful occupational regime: Decisions concerning âBirths, deaths and marriagesâ).
Amsterdam International Law Clinic
For further information see: Amsterdam International Law Clinic (April 2000):âThe competence of the European Court of Human Rights to order restitutio in integrumâ (Quote: Any problems arising at the domestic level, should be seen as mere de facto problems, incapable of derogating from the international legal obligations- The Permanent Court of Arbitration, the Permanent Court of International Justice, and the International Court of Justice have produced a consistent jurisprudence in this respectâ unquote)
That way the real estate (in cities and towns), being the property of lawful owners or their heirs, was allocated to collaborators of the unlawful occupational regime. This course of action or way of proceeding was not changed until now. As early as 1991 a so-called âSupreme Council of Lithuaniaâ, which proclaimed the renewed independence, had been constituted. After organizing general elections for a constitutional assembly, however, this self-constituted organ had exhausted its competences, which it had in accordance with the stipulations of international law. However, as if that werenât enough, this self-constituted organ went on acting like a lawful Lithuanian government, passing decrees and laws, to which law-giving competence only an elected parliament was entitled. In this connection it is of great interest, who were the members of this self-constituted organ. By no means was the âSupreme Council of Lithuaniaâ comprised of fugitives, who had returned to the home country, or by regime critics, having been released from prisons or Siberian death camps, quite on the contrary, this organ was comprised of collaborators of the unlawful occupational regime, which for the most part had been ârewardedâ for âtrustworthy servicesâ as communist party comrades by allocating to them the real estate of lawful owners, who had, before that, been murdered, tortured, deported to Siberian death camps to perish there, or at least been forced to flee abroad in order to evade imminent extermination by organs of the unlawful occupational regime, some of whom were later on also responsible for ânewlyâ allocating this real estate to their fellow collaborators, having collaborated for purely selfish reasons (seeking personal wealth, better income, social or political posts).
Constitutional judge Tamara Birmontiene as Colonel of the People’s militia
Now is scrutinized an alleged âjustâ procedure, when âfinancially compensatingâ the lawful owners of real estate – according to allegations of the Lithuanian regime by way of its organs, e.g. the judges, more especially the judges of the Constitutional Court
By the corresponding and aforesaid decisions of administrative boards or by special courts of âPeopleâs judgesâ the real estate of lawful owners, having been murdered, martyred, deported to Siberian death camps or at least having been forced to flee abroad in order to evade imminent extermination, was â for a symbolical price or even free of charge – allocated to ânew ownersâ. By this âprocedureâ the collaborators and the profiteers of the former unlawful occupational regime were, in many cases, made millionaires in real assets, being from then on in a position to sell their new âpropertyâ for the current market price, by such transactions becoming millionaires in cash. The lawful owner of such a residential property may receive a financial symbolical âcompensationâ, some day, somehow, not by the ânew ownerâ and at the market price, which one might assume, but by organs of the regime, the amount of which, theoretically, ranges between approximately 0.1 to 0.8 per cent of the market value. (By the way, in the case of Broniowski v. Poland, September 28, 2005, No. 31443/96, the Grand Chamber of the European Court of Human Rights had decided that a compensation amounting to only 2% of the market value (for loss of property in former Eastern Poland) was âinsignificantâ. Later on the applicant received a compensation amounting to 20% of the market value, about which the European Court of Human Rights commented that the applicant had the right to submit a new application to the Court, should he consider this amount being too low. Quite obviously the Court was of the opinion that even a financial compensation amounting to only 20% of the market value was still too low.
Grand Chamber hearing of the European Court of Human Rights
Let us say, a residential property has a market value of one million euros, then this âmethod of calculating the amount of compensationâ confirmed by the regime, would award a symbolical âcompensationâ to the lawful owner (instead of returning his property to him and âcompensatingâ the holders of his houses), however, not at once, but in 20, 30 or more years or when pigs fly (of course without reimbursing incurred legal costs or interest or an indemnification for having been forced to not being able to use his own residential property) of 1000 or at the most 8000 Euros, whereas the âdeservedâ communist party comrade, having been made the ânew ownerâ turns out to be at the same time a new millionaire in real assets or even in cash (after selling âhisâ property. The assertion that an average value of the real estate in a city has to be established, because an individual evaluation of a certain residential property was â allegedly â impossible, is also a violation of a peremptory norm of general international law and of the jurisprudence of the European Court of Human Rights, to say nothing of the jurisprudence of other international law courts.
This âmethodâ of calculating a âfinancial compensationâ, is, however being considered to be âjustâ and not in contravention to the Lithuanian constitution by the judges of the Lithuanian Constitutional Courts, of all persons. That way a so-called âBalance between the interests of the owner and the justified interests of societyâ is being established. No further commentary is required in this context.
Now it has been made perfectly clear, what the Lithuanian judges were aiming at when using as a pretext those âJustified interests of societyâ, namely solely the interests of the aforesaid gang of collaborators of the unlawful occupational regime, which have taken all efforts to keep the unlawfully acquired ârewardâ for their services to the unlawful occupational regime.
And solely this criminal desire to retain the lawful property of owners, having been murdered, martyred, deported to Siberian death camps or at least having been forced to flee abroad in order to evade imminent extermination, was the basis for adopting the so-called law âRestoring the abolished proprietary rights of the citizens of Lithuania to their still existing real estate” in order to refuse the restoration of their real estate (of which they had been illegally deprived) to the lawful owners or their heirs.
Consequently, this âlawâ has been used to justify the non-return of residential property in the cities to their lawful owners, both by municipal administrations and by the former âpeopleâs judgesâ of the unlawful occupational regime, holding their corresponding posts in the courts up to now. In this context mention should be made once again of the aforesaid âgang of criminalsâ from the former KGB, which is ruling and dominating the Lithuanian regime (Source: MP Vitalijus Gailius). The decision by the judges of the Lithuanian Constitutional Court was made in the spirit of the former Soviet collaborators and profiteers of the ânew allocationsâ of the residential property of lawful owners to others. This decision, consequently, is nothing but a farce, which should be evaluated and classified accordingly by the relevant institutions of the European Union and the Council of Europe â with all legal consequences ensuing therefrom.