Case No. 7/98
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
RULING
On the compliance of Paragraph 2 of Article 5 of the Republic of Lithuania’s Law on Museums
with the Constitution of the Republic of Lithuania
Vilnius, 16 March 1999
The Constitutional Court of the Republic of Lithuania, composed of the Justices of the
Constitutional Court: Egidijus Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavičius, Teodora
Staugaitienė, and Juozas Žilys
The court reporter—Daiva Pitrėnaitė
Darius Karvelis, a consultant to the Law Department of the Office of the Seimas, acting as
the representative of the Seimas of the Republic of Lithuania, 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 5 March 1999, in its public hearing,
considered case No. 7/98 subsequent to the petition submitted to the Constitutional Court by the
College of Civil Cases Division of the Court of Appeal of Lithuania, the petitioner, requesting an
investigation into whether Paragraph 2 of Article 5 of the Republic of Lithuanian Law on Museums
was in compliance with Article 23 of the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
By its decision of 13 May 1997, the First Vilnius City Local Court, rejected the claim of the
claimant A. V. Karosienė concerning the claiming of property from unlawful possession by the
others.
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The Vilnius Regional Court, on considering the appeal of the claimant, by its ruling of 23
June 1997, ruled that the decision of the local court shall remain effective without alterations.
On 17 February 1998, the College of Civil Cases Division of the Court of Appeal of
Lithuania was considering a civil case pursuant to the appeal by the claimant A. V. Karosienė in the
said civil case. By its ruling, the court suspended the consideration of the case and applied to the
Constitutional Court with the petition requesting an investigation into whether Paragraph 2 of
Article 5 of the Republic of Lithuania’s Law on Museums (Official Gazette Valstybės žinios, 1995,
No. 53-1292) was in compliance with Article 23 of the Constitution.
II
The arguments of the petitioner are based on the following arguments.
The father of the claimant was convicted by the Special Conference during the years of the
Soviet occupation, and his property was confiscated. On 12 October 1951, 27 pictures that had been
confiscated from him were handed to the Vilnius State Art Museum. On 25 May 1989, her father
was posthumously rehabilitated and his full civil rights were restored. On accepting the legacy, the
claimant appealed to court claiming the 27 pictures from the Lithuanian Art Museum. The claim
was rejected on the grounds of Paragraph 2 of Article 5 of the Law on Museums wherein it is
provided that museum valuables comprising the fund of State museums shall be State property; the
museum valuables of the said fund shall not be subject to being returned to their former owners.
In opinion of the petitioner, the aforesaid norms of the law contradict the principle of the
inviolability of property and the protection of the rights of ownership as established by Article 23 of
the Constitution. The right of ownership is the right of the owner to manage, use and dispose of his
property at his discretion and when doing so, the owner must not violate the law nor the rights and
interests of other persons. The laws do not provide for any situations or procedure of seizure of
museum values. Paragraph 2 of Article 5 of the Law on Museums deny the constitutional
guarantees given to private ownership, and unlawful appearance of the right of ownership for the
State is consolidated therein.
III
In the course of the preparation of the case for the Constitutional Court hearing, the
representative of the party concerned V. Baliūnienė presented the following counter-arguments.
Conforming to Article 42 of the Constitution by which the State shall support culture and
science, and shall be concerned with the protection of Lithuanian history, art, and other cultural
monuments and valuables, and taking account of the importance of the protection of movable
cultural heritage, in 1995–1996, the Seimas adopted laws regulating the protection of movable
valuables of culture. In 1995, the Republic of Lithuania’s Law on Archives, the Republic of
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Lithuania’s Law on Libraries and the Law on Museums were adopted. In 1996 the Seimas passed
the Republic of Lithuania’s Law on the Basics of National Security which names cultural heritage
as one of the main objects of national security. The main objective of the aforesaid laws is
preservation of the accumulated movable valuables of culture for the posterity as loss of any
valuable on either its destruction or its irretrievable taking away from Lithuania or loss of its
cultural value is great damage for society in general.
The representative of the party concerned is of the opinion that the legislature, taking
account of the public importance of movable cultural valuables and the necessity of their
preservation, established by the Law on Archives and the Law on Museums that archive documents
and museum valuables kept in State depositories are not subject to being returned to the former
owners. This provision was based by the legislature that it is only the valuables preserved in
museums are accessible to the public at large and that museums not only ensure the registration and
safe-keeping of valuables of culture but they also investigate, preserve and restore them. The
Seimas repeated the provision of the safe-keeping of valuables of culture in State depositories in
Article 17 of the Republic of Lithuania’s Law on the Protection of Movable Valuables of Culture,
Paragraph 1 whereof provides that safe-keeping and accumulation of movable valuables of culture
in State depositories comprise one of the basic parts in the State protection of movable valuables of
culture. In addition, the impugned provision is grounded on the fact that in Lithuania there was not
a law on the restoration of the rights of ownership to movable property.
Article 23 of the Constitution contains a norm that property may only be seized for the needs
of society and must be adequately compensated for. This norm is particularised by Article 163 of
the Civil Code wherein it is established that in cases and procedure provided for by means of laws
of the Republic of Lithuania it is permitted to seize property from the owner for the needs of society
by paying him its value (requisition), as well as seize property which is not subject to recompense
enforcing a sanction for violation of law. Paragraph 2 of Article 5 of the Law on Museums provides
for the case when the State seizes property from the owner for the needs of society. The procedure
of recompense for this property is established by the Resolution (No. 368) “On the Ownership and
Personal Non-Ownership Rights as well as the Protection of Civil Honour and Dignity of Persons
Whose Eviction has been Recognised Unlawful and Groundless and Who are Recognised
Rehabilitated Ones” which was adopted by the Soviet of Ministers of the Lithuanian Soviet
Socialist Republic on 27 December 1988.
In the opinion of the representative of the party concerned, one must take into consideration
the common principles of the laws passed by the State on the restoration of the rights of ownership
to real property. The law regulating the restoration of the rights of citizens to the existing real
property did not provide for the unconditional returning of items of property in kind, either.
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The representative of the party concerned maintains that the norm of Paragraph 2 of Article
5 of the Law on Museums does not deny the principle of inviolability and protection of the right of
ownership legitimised by Article 23 of the Constitution nor does it consolidate an unlawful
appearance of the right of ownership to the State. The said norm, taking account of important needs
of society, merely legitimises an opportunity not to return the aforesaid valuables to the former
owners in kind. In addition, the representative of the party concerned is of the opinion that one has
to agree with the fact that the impugned norm of the law might be particularised (or this might be
regulated by an individual law) in the course of establishing the procedure of seizure of museum
valuables kept at museum depositories from the owners for the needs of society and that of
recompense payment.
IV
In the course of the preparation of the case for the judicial investigation, an explanation of
the specialist—Assoc. Prof. A. Taminskas, who works at the Civil Law and Civil Procedure
Department of Law Faculty of Vilnius University—was received. In the opinion of the specialist,
Paragraph 2 of Article 5 of the Law on Museums which may be understood as appearance of the
right of public ownership on the grounds of an unlawful action of confiscation should be judged to
be in conflict with Article 23 of the Constitution. In addition, valuables of culture may get into the
depositories of State museums by other ways as well.
The specialist is of the opinion that the norm contained by Paragraph 4 of Article 47 of the
Constitution by which the right of ownership of historical, archaeological and cultural facilities
shall exclusively belong to the Republic of Lithuania may not be treated as one granting the right to
the State to seize the aforesaid valuables from their owners against their will and without
recompense. Other civil laws, particularising the said norm of the Constitution, establish the right
for the State to control the use and disposal of valuables of culture. For instance, Article 158 of the
Civil Code provides for an opportunity for the State to control the keeping of valuables of culture
through respective organisations, while in certain cases to seize them against the will of the owner
but the latter must be recompensed. Therefore, on the grounds of the aforesaid norm of the
Constitution it is possible to give reason to seizure of historical, archaeological and cultural items
for the needs of society (as well as not returning the said items to their owners) but only under the
laws and by fair recompense.
V
The representative of the party concerned D. Karvelis presented these counter-arguments in
the Constitutional Court hearing.
Taking account of the public significance of movable valuables of culture and the necessity
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to preserve them, the legislature established by the Law on Museums that the fund of State
museums shall be State property and that museum valuables kept in State depositories shall not be
subject to being returned to their former owners. The legislature grounded this legal provision on
the fact that the valuables which are at museums may be accessible to the public at large. Not only
do the museums ensure safe-keeping and registration of the accumulated valuables but also they
investigate, preserve and restore them.
The Law on Museums defines the fund of museums of the Republic of Lithuania,
establishes the system of museums of Lithuania, procedure of the establishment and liquidation of
museums, the registration and safe-keeping of museum valuables, as well as the financing and
management of museums. This law does not regulate the restoration of the rights of ownership as
this is an object of special laws. The representative of the party concerned noted that until now a
procedure for the restoration of the rights to the existing real property has been established,
however, at present there is not any law on the returning of movable property.
The provision of Paragraph 2 of Article 5 of the Law on Museums by which museum
valuables shall not be returned to their former owners means that such valuables are not subject to
being returned in kind, however, this provision does not create any legal hindrances for the former
owners to claim their rights of ownership to museum valuables in other ways (purchasing by the
state, alternative kind, etc.).
In the opinion of the representative of the party concerned, one has to take into consideration
the common principles established in laws on the restoration of the rights of ownership to the
existing real property. These laws do not provide for the unconditional returning of property in kind
to citizens of the Republic of Lithuanian whose real property was nationalised under the laws of the
USSR (those of the Lithuanian Soviet Socialist Republic) or unlawfully seized otherwise. In case
Paragraph 2 of Article 5 of the Law on Museums was ruled to be in conflict with Article 23 of the
Constitution, the unconditional returning of museum valuables in kind to their former owners would
be legitimised and there would arise a problem of the equality of the owners of real property and
those of movable property before the law.
On the grounds of the said arguments, the representative of the party concerned asserted that
Paragraph 2 of Article 5 of the Law on Museums is in compliance with Article 23 of the
Constitution.
VI
The specialists G. Drėmaitė, Chairperson of the Republic of Lithuania State Commission for
Monument Preservation, and G. Jucys, Head of the Group of Control of the aforesaid commission,
spoke at the Constitutional Court hearing. They described actual circumstances reflecting the
situation which appeared in the course of the implementation of the norms of the Law on Museums.
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In the opinion of the specialists, the valuables of culture accumulated at the fund of State museums
should not be returned to their former owners, however, laws might regulate question of
compensation for such valuables.
The Constitutional Court
holds that:
1. Paragraph 2 of Article 5 of the 8 June 1995 Law on Museums provides: “The fund of
State museums shall be State property. Museum valuables of this fund shall not be subject to being
returned to their former owners.”
According to the definition of the museum valuable as presented by the said law, it is a
valuable item from the standpoint of archaeology, history, ethnicity, religion, monument
preservation, or any other standpoint of culture or an object accumulated, kept, investigated and
displayed by museums. It should be noted that under the Law on the Protection of Movable
Valuables of Culture regulating the protection of movable valuables of culture belonging to either
the State or private individuals, safe-keeping and accumulation of movable valuables of culture in
State depositories (archives, libraries, museums) comprise one of the basic parts in State protection
of movable valuables of culture. For this reason they are purchased, acquired in another fashion or
accepted for safe-keeping based upon the right of deposit (Paragraph 1 of Article 17 of the Law on
the Protection of Movable Valuables of Culture).
Valuables of culture accumulated in museums are accessible to the public at large. State
museums not only ensure the registration and safe-keeping of the accumulated valuables but they
also investigate, preserve and restore them. The Law on Museums provides for legal means of the
protection of the fund of State museums designed to implement the provision of Paragraph 2 of
Article 42 of the Constitution by which the State shall support culture and science, and shall be
concerned with the protection of Lithuanian history, art, and other cultural monuments and
valuables.
By the regulation established by Paragraph 2 of Article 5 of the Law on Museums, which is
impugned by the petitioner, it is attempted to preserve the valuables of culture accumulated at the
fund of State museums, therefore, the link between the impugned norm and the duty of the State to
take care of cultural heritage established by Article 42 of the Constitution is evident. It needs to be
noted that the Law on the Basics of National Security denotes cultural heritage as one of the main
objects of national security.
2. The petitioner is of the opinion that Paragraph 2 of Article 5 of the Law on Museums
providing that museum valuables kept at State museums are State property and are not subject to
being returned to their former owners denies the principle of protection of private ownership
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established by Article 23 of the Constitution.
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.”
Constituting a whole, these norms of the Constitution ensure the constitutional protection of
property. The Constitutional Court has noted that, in the doctrine, the constitutional guarantee of
property protection is, as a rule, referred to as a status quo guarantee, as it, first of all, protects
persons’ property which they possess at the moment (the Constitutional Court’s ruling of 27
October 1998).
The norm of the Constitution stipulating that the rights of ownership shall be protected by
law means that a legal protection of subjective rights of ownership are guaranteed. The subjective
right of ownership is, as a rule, defined as a legally protected opportunity of the owner to manage,
use and dispose of his property at his discretion and in his interests provided the limits established
by law are not overstepped and the rights and freedoms of other persons are not impaired. However,
these are not all the rights of the owner. A very important protective function belongs to such a
subjective right of the owner as the right to claim one’s property from its unlawful management by
the others.
3. It needs to be noted that a valuable of culture is both an object of the right of ownership
and public value. It is evident that certain protection and care are needed so that the valuable of
culture might persist and satisfy the needs of society as long as possible. Thus, this is a special
property item for which a peculiar legal regulation is necessary. Such legal regulation may cause
problems of legal compatibility of private and public interests.
Deciding the question of compliance of the impugned norms of the Law on Museums with
Article 23 of the Constitution, one has to take account of the fact that the Constitution shall be an
integral and directly applicable statute (Paragraph 1 of Article 6 of the Constitution). The principle
of the integrity of the Constitution determines that at the junction of the values protected by the
Constitution decisions ought to be found ensuring that neither of these values would be denied or
unreasonably limited.
4. In the fund of State museums there are such valuables of culture which got into them
during the time when Lithuania was occupied, annexed and incorporated into another state—the
USSR—i.e. until 11 March 1990. The occupation government nationalised land, banks, large items
of economy, as well as in other ways unlawfully seized items of private property, a great many of
valuables of culture among them.
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After on 11 March 1990 the Supreme Council-Reconstituent Seimas had adopted the Act on
the Restoration of the Independent State of Lithuania as well as other acts of fundamental nature,
the institution of private ownership was restored. However, it was actually impossible completely to
restore the system of ownership relations that existed in 1940. The massive character of violations
of the rights of ownership committed by the occupation government, the newly formed legal
relations and other objective circumstances determined that it was impossible to protect the rights of
ownership violated during the occupation years on the grounds of the norms of the Civil Code. The
Constitutional Court has noted that until corresponding State institutions have not adopted a
decision on the restoration of the rights of ownership under the law, persons whose property was
seized during the years of occupation actually do not enjoy the subjective rights of ownership (the
Constitutional Court’s ruling of 27 May 1994, etc.). Thus, a special legal regulation for the
implementation of the restitution was necessary. And this is a prerogative of the legislature.
For instance, on 18 June 1991, the Law “On the Procedure and Conditions of the
Restoration of the Rights of Ownership of Citizens to the Existing Real Property” was passed. This
law regulated the implementation of limited restitution. Both the said law and the Republic of
Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real
Property of 1 July 1997 provide for the conditions and procedure for the restoration of the rights of
ownership and establish various ways of the restoration of these rights. It needs to be noted that,
even though the laws give priority to returning property in kind, however, state-purchase (for
respective recompense) of the existing real property from persons whose rights of ownership are
subject to restoration is provided for, too. Under the law of 1 July 1997, the State shall purchase
land provided it is on the territory of State wildlife reserves, national and regional parks, that of the
Curonian Spit National Park, or it has been allotted to science and education establishments, etc.;
dwelling-houses (parts thereof), flats shall be purchased by the State provided they have been
rearranged into non-dwelling premises and are utilised for the needs of education, health, culture
and science, as well as those of foster-homes. Such legal regulation of the restoration of the rights
of ownership to the existing real property shows the determination of the legislature to regulate the
implementation of the restitution only by means of special laws and by taking account of the needs
of society and factual economic possibilities. It should be noted that no law on the restoration of the
rights of ownership to movable property has been adopted.
5. Museum valuables are an important part of national culture. In an attempt to ensure the
safe-keeping of such valuables, as is demanded by the Constitution of this country, special legal
regulation on the restoration of the rights of ownership to valuables of culture may be established.
The aim of the norms of Paragraph 2 of Article 5 of the Law on Museums is preservation of the
accumulated valuables of culture for the posterity as loss of any valuable on its destruction, not
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preservation of its cultural value or its irretrievable taking away from Lithuania is great damage to
society.
Taking account of this as well as peculiarities of the legal regulation which have been
discussed in the present ruling, the following conclusions are to be drawn: first, the legislature has
not provided by law for an opportunity to restore the rights of ownership to museum valuables;
second, there are grounds to regard Paragraph 2 of Article 5 of the Law on Museums as a special
legal regulation establishing that the valuables of culture which are at the fund of State museums
shall not be subject to being returned to their owners who lost them due to the universal
nationalisation or any other unlawful seizure carried out by the occupation government.
Thus, on the grounds of the arguments set forth and taking account of the fact that no law on
the restoration of the rights of ownership to museum valuables has been adopted, the conclusion
should be drawn that Paragraph 2 of Article 5 of the Law on Museums, to the extent that, in case
museum valuables were seized till 11 March 1990, they shall not be subject to being returned to
their former owners, is in compliance with Article 23 of the Constitution.
6. Valuables of culture may get to the fund of State museums by different ways, and this
determines the necessity of different legal regulation. Investigating the limits of the effect of the
impugned norms of the law, one should hold that they are valid for every person who, against his
will, lost valuables of culture and who attempts to claim them from the fund of State museums.
Thus, Paragraph 2 of Article 5 of the Law on Museums takes account of neither the manner of
acquisition of museum valuables nor the time of such acquisition. Thus, such an important factor is
ignored that valuables of culture may have come into the possession of the fund of State museums
after the restoration of the independent State of Lithuania.
As mentioned, upon the restoration of the independence, the institution of private ownership
was reintroduced into the legal system of Lithuania, therefore, in order to protect the rights of
ownership violated after 11 March 1990, the constitutional guarantees of the protection of the rights
of ownership should be applied in full scope. Assessing the impugned legal regulation from this
standpoint, it should be noted that it prohibits, without any reservations, returning museum
valuables to their former owners. Thus, an a priori opportunity is denied to satisfy any vindicating
claim regardless of respective legal facts, for example, such as recognition of a transaction on
acquisition of valuables of culture as null and void etc.
It should be noted that, under Paragraph 4 of Article 47 of the Constitution, the right of
ownership of cultural facilities of public significance shall exclusively belong to the Republic of
Lithuania. This means that the constitutional norms do not reject an opportunity to make cultural
items of national significance State property. It goes without saying, it would depend on the public
significance and value of corresponding items, as well as the necessity to guarantee an opportunity
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of its endurance and preservation for the future generations. On the other hand, such nationalisation
of valuables of culture ought to be carried out only pursuant to the requirements of Paragraph 3 of
Article 23 of the Constitution.
Taking account of the arguments set forth, it should be concluded that Paragraph 2 of Article
5 of the Law on Museums, to the extent that the opportunity to protect, on the grounds of the norms
of the Civil Code, the rights of ownership which were violated after 11 March 1990, is denied,
contradicts Article 23 of the Constitution.
7. The Constitutional Court notes that the analysis and assessment of the legal regulation of
protection of valuables of culture presented in this ruling does not cover international relations
which are regulated by other acts—bilateral or multilateral treaties of states. For instance, the act of
international law—the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects,
ratified by Lithuania on 14 January 1997—is of such nature. Article 25 of the Law on Museums
provides that in cases when international agreements concluded by the Republic of Lithuania
provide for different rules from those set down in this law, the rules of the international agreement
shall be applicable.
Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53,
54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the
Constitutional Court of the Republic of Lithuania gives the following
ruling:
1. To recognise that Paragraph 2 of Article 5 of the Republic of Lithuania’s Law on
Museums, to the extent that the museum valuables seized in the period of the occupation (till 11
March 1990) shall not be subject to being returned to their former owners, is in compliance with the
Constitution of the Republic of Lithuania.
2. To recognise that Paragraph 2 of Article 5 of the Republic of Lithuania’s Law on
Museums, to the extent that the right to claim valuables of culture from unlawful management by
the others, when they came into the possession of the fund of State museums after 11 March 1990,
is denied, contradicts Article 23 of the Constitution of the Republic of Lithuania.
This ruling of the Constitutional Court is final and not subject to appeal.
The ruling is pronounced in the name of the Republic of Lithuania.
Justices of the Constitutional Court:
Egidijus Jarašiūnas
Kęstutis Lapinskas
Zigmas Levickis
Augustinas Normantas
Vladas Pavilonis
Jonas Prapiestis
Pranas Vytautas Rasimavičius
Teodora Staugaitienė
Juozas Žilys