Statistical data: 1 May 1996 - 31 August 1996

Number of decisions: 4 final decisions including:
• 1 ruling concerning the compliance of laws with the Constitution
• 2 rulings concerning the compliance of governmental resolutions with the laws
• 1 decision concerning the compliance of a Presidential decree with the constitution
All cases - ex post facto review and abstract review. The content of the cases was the following:
• privatisation: 1
• financial questions: 1
• civil service: 1
• the Bar: 1
All final decisions of the Constitutional Court were published in Valstybes zinios (Official Gazette).

Important decisions

Identification: LTU-96-2-005
a) Lithuania / b) Constitutional Court / с) / d) 22.05.1996 / e) 14/95 / f) On Privatisation of Apartments / g) Valstybeszinios (Official Gazette), 50-1208 of 29.05.1996 /h).

Keywords of the systematic thesaurus:
Constitutional Justice - The subject of review - Rules issued by the executive.
Institutions - Economic duties of the State.
Fundamental Rights - Civil and political rights - Equality.
Fundamental Rights - Civil and political rights - Right to property - Privatisation.

Keywords of the alphabetical index: Apartments, privatisation / Co-operatives, consumers.

Headnotes:
A governmental decree excluding from privatisation rooms in hostels belonging to consumer co-operatives was held to be incompatible with the Law on Privatisation of Apartments and with the principle of equality.

Summary:
The case was initiated by a local court following a citizen's complaint against measures hindering him from privatising an empty room in a hostel of Consumer Co-operatives.
In 1993, the government issued two regulations which established that as from 1 February 1993 consumer cooperatives had completely settled their accounts with the State. Henceforth, hostels, together with other possessions, were to be treated by consumer coopera-tives as their own property.
Before State and co-operative property in Lithuania were separated, the Law on Privatisation of Apartments was passed (on 28 May 1991). Following this law, apartments were privatised which were at the disposal of consumer cooperatives. When separating State and co-operative property, and deciding to whom hostels must belong, the government had to take account of the aim of the Law on Privatisation of Apartments. Moreover, in the said law there was no exception providing that rooms in hostels transferred to consumer cooperatives should not be privatised. Thus the disputed Resolution and Decree did not correspond to the aim and content of this Law, and the argument to the effect that prescriptions in the Law on Privatisation of Apartments should not be applied to rooms in hostels transferred to consumer cooperatives was accordingly groundless.
At the same time, the contested legal acts in fact restricted the rights of one social group to privatise residential lodgings possessed on the basis of labour and lease agreements. This was found to constitute a disregard of the principle of all people's equality before the law.
In the opinion of the petitioner, it being prescribed in Articles 1 and 2 of the Law on Privatisation of Apartments that the public housing fund shall consist of dwell-ing-houses and buildings which belong to co-operative organisations, these lodgings must also be the objects of the Law on Privatisation of Apartments.
The Court found that the distinct Law on Privatisation of Apartments was devoted to the privatisation of the State and public housing fund. Privatisation of apartments had become one of the main elements of State social policy, in order that the owner of lodgings should ordinarily be the person residing in the said lodgings. Upon adoption of the Law on Privatisation of Apartments, the rights of the population as a whole to acquire as private property their rented dwelling-houses, apartment buildings and hostels was consolidated.
The persons who were allocated rooms in hostels on the grounds of labour relations, save for the Union of the Blind and Weak-Sighted and those of the Lithuanian Society of the Deaf and of the Lithuanian Society of the Disabled, acquired the right to buy residential lodgings pursuant to the Law on Privatisation of Apartments. In this respect, the rights of employees of consumer cooperatives residing in hostels to privatise residential lodgings were equalised with those of employees of other enterprises, offices, and organisations.
Taking into account these arguments, the Constitutional Court ruled that the disputed Resolution and disputed Decree contradicted Part 1 of Article 1 and Part 1 of Article 2 of the Law on Privatisation of Apartments in so far as they applied to the transfer of rooms in hostels to consumer co-operatives.

Languages: Lithuanian, English (translation by the court).

Identification: LTU-96-2-006
a) Lithuania / b) Constitutional Court / с) / d) 29.05.1996 / e) 1 /96 / f) Military service - civil service / g) Valstybes zinios (Official Gazette), 57-1364 of 19.06.1996 / h).

Keywords of the systematic thesaurus:
Institutions - Executive bodies - Organisation.
Institutions - Executive bodies - The civil service.
Institutions - Army and police forces - Police forces.

Keywords of the alphabetical index: Military servicemen / Minister of Defence.

Headnotes:
The nature of institutions of democratic power is that all persons who implement the political will of the people are subject to various forms of control so as to ensure that this will is not distorted. In the exercise of such control, the activity of officials is inspected. In addition, the independence of the activity of persons who fulfil political programmes is of crucial importance.
The guarantees of democracy are also emphasised by the fact that the norm of part 3 of Article 140 of the Constitution contains an imperative prohibition on the Minister of National Defence: The Minister of National Defence may not be a serviceman who has not yet retired from active service. Thus there were no reasons in the present case to invoke the separate rule that a soldier, police officer or officer of the internal service or any other person indicated in Article 141 of the Constitution may not be a minister or hold other positions pointed out in this Article without having first retired from active service.

Summary:
The petitioner - a group of Seimas members - appealed to the Constitutional Court requesting it to investigate whether a presidential Decree appointing an officer of the internal service as the Minister of Internal Affairs was in compliance with the Constitution. According to Article 141 of the Constitution, officers of the national defence forces, of the police or of the internal service may not hold elected or appointed posts in State civil service. Therefore, in the opinion of the petitioner, the appointment of the Minister of Internal Affairs contradicted Article 141 of the Constitution.
Article 2 of the Law on Officials provides that employees who are directly or indirectly elected by citizens or who are appointed to fulfil a political programme by the legislative or executive powers or by institutions of local self-government, shall be politicians. The President of the Republic, members of the Seimas, the Prime Minister and Ministers shall be politicians of the State. The members of councils of local self-governments shall be politicians of such local authorities.
The government is the part of State power which carries out a political programme. It is accountable to the Seimas, whereas Ministers are answerable to the Seimas and to the President of the Republic and are under direct subordination of the Prime Minister.
The relationship of strict subordination and certain other rules governing one's position vis-a-vis the authorities are of great importance to soldiers in active military service, officers of the national defence forces and of the internal service, non-commissioned officers, officers of security services and other officials mentioned in Article 141 of the Constitution. Therefore, there may appear to be an internal conflict between the necessity to carry out the functions of State power and the requirements of the regulations governing these and other persons mentioned in Article 141 of the Constitution. This may be one reason why the functioning of democratic institutions could be frustrated by such a double exercise of functions.
Therefore, taking account of the motives and arguments set forth, there were sufficient grounds in the present case to find that the nomination of the Minister in question contradicted Article 141 of the Constitution. However, the President of the Republic, by his 29 January 1996 Decree no. 22, had in the meantime dismissed the military serviceman from the Position of Minister of Internal Affairs, and consequently the disputed part of the legal act ceased to be legally valid. On this ground, the Constitutional Court ordered that the legal proceedings commenced in this case.

Languages: Lithuanian, English (translation by the Court).

Identification: LTU-96-2-007
a) Lithuania / b) Constitutional Court / с) / d) 26.06.1996 / e) 6/95 / f) On indexation of people's savings / g) Valstybes zinios (Official Gazette), 63-1480 of 03.07.1996 /h).

Keywords of the systematic thesaurus:
Institutions - Legislative bodies - Powers.
Institutions - Economic duties of the State.
Fundamental Rights - General questions - Basic principles - Equality and non-discrimination.
Fundamental Rights - Civil and political rights - Equality.
Fundamental Rights - Civil and political rights - Right to property - Other limitations.

Keywords of the alphabetical index:
Deposits, devaluation, compensation / Deposits, State guarantee / Indexation / Inflation / Savings.

Headnotes:
The State must fulfil its obligation to compensate property owners for devalued deposits in respect of which it has taken over a guarantee. The establishment of the amount of compensation is a prerogative of the Seimas, as it is established in Article 128 of the Constitution that decisions concerning State loans and other basic property liabilities of the State shall be adopted by the Seimas on the recommendation of the government. The Constitutional Court also noted that the Seimas is not bound by earlier adopted legal acts. Therefore, by taking account of actual possibilities, it may establish other compensation coefficients to be applied to devalued deposits and insurance payments.

Summary:
The case was brought as a result of a petition submitted by a group of the Seimas members requesting a ruling on whether the application of a coefficient of 10 in the government's Resolution no. 562 of 23 July 1993 "On the Indexation of People's Savings" was in compliance with Article 23 of the Constitution.
Upon the reinstatement of the independent State of Lithuania, the Soviet Union undertook military, political, and economic actions against Lithuania. Among them, the actual seizure of the savings of Lithuanian citizens which were then accumulated in savings banks was used as a means of economic and financial pressure.
Under such a situation, on 28 April 1990 the government of Lithuania adopted two resolutions which attempted to ensure the functioning of the national economy. Banks of the Republic of Lithuania and self-government bodies of cities and districts were obliged to induce, in every way possible, the concentration of people's savings into deposits in the offices of the Lithuanian Savings Bank as well as in those of other banks. The Republic of Lithuania guaranteed with its property that people's deposits would not be lost. In particular, Article 471 of the Civil Code provided that the State shall guarantee privacy, security and payment of deposits on the first demand of the depositor. This norm remains valid at present.
The government, following the passing of laws on the issuing of the national currency and on the withdrawal of temporary coupons from circulation, adopted its Resolution no. 526 "On the Indexation of People's Savings". In the preamble of the aforesaid Resolution it was indicated that the government had taken into consideration the grave economic and financial situation of the Republic of Lithuania. Therefore in item 1 it was provided that State banks and the State Insurance Office would index by applying a coefficient of 10 to the savings of citizens as well as those of persons who permanently lived in the Republic of Lithuania and those of rehabilitated persons who were exiled from Lithuania and now lived abroad.
In a further Resolution passed by the Seimas on 15 December 1993, it was established that the State would compensate people's savings in 1994 according to the government resolutions then in force. Thus the Seimas in fact agreed that the government by its Resolutions over different periods of time had established a right to compensation in discharge of what was, in effect, a loan to the State by the account holders.
The legal acts of the Supreme Council and of the Government whereby it pledged the repayment of the deposits of the people prior to the adoption of the Constitution continued to bind the institutions of power and government after the Constitution went into effect. The permanence of these commitments was confirmed by the subsequently adopted legal acts of the Seimas and of the Government, too.
According to legal doctrine, the right to claim is a type of property. Therefore the right to claim, as well as any other property, is the object of private ownership. Thus the object of the right of the depositor to ownership is the right to claim, whereas the object of the right of tangible property is particularised property. The owner's property rights are protected to the same extent irrespective of the object of the right to private ownership, providing always that the law does not establish exceptions. Thus the subjective rights of claim of the owner must be protected along with his rights to tangible property following the principles of protection developed in property law.
The notion of security of deposits which is used in legal acts is a juridical notion which is interpreted as the safekeeping of deposits in credit offices which are responsible for the preservation of the deposits' nominal value and which guarantee their payment on the first demand of the depositor with the interest established by law or by agreement of the parties.
The preservation of the value of the deposits is interpreted as an economic category. Devaluation of deposits, as a rule, is caused by objective economic developments (as well as inflation) which are not dependent upon the will of the credit office that keeps people's deposits.
Thus the notions of security of deposits and of the preservation of value of the deposits cannot be identified according to the juridical and economic meaning of their content.
Deposits, in part, may be preserved from devaluation by paying interest on them, by forming individual or joint insurance systems of private banks, etc. However, even though a deposit insurance system is created for the purpose of deposit protection, as a rule only the payment of a nominal value sum is guaranteed and not compensa-tion for losses suffered because of inflation.
The Constitutional Court concluded that there were insufficient legal arguments to identify what amount of indexation coefficient must be held as corresponding to the constitutional principle of inviolability of property. Therefore, the provision of the disputed Resolution could not be held to contradict Article 23 of the Constitution.

Languages: Lithuanian, English (translation by the Court).

Identification: LTU-96-2-008

a) Lithuania / b) Constitutional Court / с) / d) 10.07.1996 / e) 11/95, 9/96 / f) Requirements for education to an advocate/g) Valstybes zinios (Official Gazette), 67-1628 of 17.07.1996/h).

Keywords of the systematic thesaurus:
Institutions - Courts - Legal assistance - The Bar.
Fundamental Rights - General questions - Basic principles - Equality and non-discrimination.
Fundamental Rights - Civil and political rights -Procedural safeguards - Fair trial - Rights of the defence.
Fundamental Rights - Economic, social and cultural rights - Freedom to choose one's profession.

Keywords of the alphabetical index:
Advocate, professional requirements / Education, requirements / Higher education / Legal studies / University studies.

Headnotes:
The right to defence, as well as the right to have an advocate, is one of the fundamental human rights promoted to secure the person's freedom and inviolability in the protection of constitutional rights and freedoms. The implementation of the constitutional right to defence is particularly dependent on the level of an advocate's professional preparedness, i.e., on the qualifications acquired by the lawyer and the skills of his legal practice. International documents also mention corresponding education as a necessary requirement for persons who aspire to work as advocates.
Thus the education requirement established in the Law on the Bar may not be held to be either a restriction of discriminative character, or as an undue constraint on citizen's rights and freedoms. It is rather to be judged merely as a requirement of qualification and character for persons who wish to work at the bar.

Summary:
The Vilnius City District Court suspended the investigation of two civil cases and appealed to the Constitutional Court for a ruling on whether the provision whereby a citizen of the Republic of Lithuania may be an advocate provided that he / she has university higher legal education, provided for in Article 8 of the Law on the Bar, was in compliance with the Constitution. The petitioner reasoned that such a requirement of the law might contradict Article 48.1 of the Constitution wherein it is established that every person may freely choose an occupation or business.
The Court found that the purpose of university legal education is preparation of specialists who had a wide outlook and who were able to asses the entire legal system and decide difficult problems. A much wider and varied syllabus of university studies, studies which took place over a longer time period and which more fundamental and paid greater attention to general subjects of humanities, private law, etc., helped to achieve this aim. Therefore legal education which was acquired in an institute, academy or higher educational establishment of the former USSR Ministry of Internal Affairs could not be unconditionally held to be analogous to university education, even though the former is recognised as higher education.
To foresee a necessary level and type of legal education for advocates, as well as other additional requirements, is an internal affair of every State. Some countries require not only corresponding legal education but also additional practical training and examinations.
The Lithuanian legislature had come to a conclusion that legal education of wide outlook which could be secured only by university higher legal education was necessary for lawyers who work at the bar. The Constitutional Court recognised that this could result in increased educational requirements for the lawyers of this profession. However, such requirements had the aim of ensuring that people be supplied with more qualified legal assistance, i.e., of strengthening the protection and defence of human rights and freedoms.
The Constitutional Court therefore ruled that the disputed provision was in compliance with the Constitution.

Languages: Lithuanian, English (translation by the Court).