The Right to the ownership
ENThe ownership in all times has been acknowledged as the economic basis for the human rights and freedoms. It remains the essential (necessary) condition for the implementation of the freedom of persons’ economic activities. Therefore, the right to the ownership is attributed to one of the most important human rights. Article 23 of the Constitution of the Republic of Lithuania provides the immunity of the ownership. The rights to the ownership are safeguarded by the laws. Thus, the provision of the Constitution imperatively demands the consolidation of the immunity of the ownership. However, this right as other constitutional rights is not assigned to the absolute human rights. Part 2 Article 23 of the Constitution consolidates the underlying rule of the institution of ownership and therefore the rights to the ownership are being protected by the legal acts having the greatest legal power – the laws. All other legal acts in the field of regulation of the rights to the ownership have to comply with the laws. The state is under the obligation to legislation and based on that – protection of the ownership. To this end the entire legal system has been created consisting of the civil, administrative, criminal and other laws having the aim to assure the protection of different and dynamic ownership relations. While interpreting the principle of the right to the ownership consolidated by Article 23 of the Constitution the following aspects are of the most importance: immunity of the ownership, legitimate safeguarding of the rights to the ownership, the possibility to limit the ownership right towards the public needs. The right to the ownership is regulated by Article 1 Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms where it defines that each natural and legal person has the right to the unhindered use of his / her ownership.Nobody can be deprived of the ownership, except cases when this is needed for the sake of the public interests and only following the conditions provided by the law as well as following the common principles of the international law. However, the former provisions in no way can limit the right of the state to apply such laws that in its view are needed for the control of the usage of the ownership referring to the common interest or seeking to guarantee the payment of taxes, other duties or fines. The United Nations Universal Human Rights Declaration also declares the right to the ownership and has been referred to by Article 17 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. However, this article deals only with the right to have the ownership and the prohibition to the willful deprivation of it. One of the most important instruments of the United Nations – International Covenant on Civil and Political Rights – does not regulate the right to the ownership at all. The doctrine usually refers to the constitutional guarantee of the protection of the ownership as status quo as it primarily protects the ownership rights of the person. At the same time the broader conception of this Constitutional Guarantee is acknowledged. The lawful interests of the persons the ownership rights of whom have been violated by the occupational government are also protected by the constitutional provisions of the protection of the ownership. In this instance it is significant that the legislator starting from the very first day of the restoration of the independence of the Lithuanian State has acknowledged the succession of the ownership rights of the citizens of Lithuania that have been illegally violated by the occupational government.Following Article 1 of Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the understanding of which as well as the scope of application is explicated in the jurisprudence of European Court of Human Rights, the ownership is understood not just as a private ownership, i. e. movables and real property. In certain cases the ownership is interpreted also as the rights legally granted for a person that may be established. Though not being the ownership in the physical sense such property substantiated by the private law as stock or monetary claims related in a way of delict also fall under the applied understanding of the ownership. The right to use the ownership without hindrance encompasses also certain economic requirements based on the public law, for example benefits according to the compulsory insurance that is provided by the laws on the social protection. The rights to the pension benefits and other system of social protection are also safeguarded by Article 1 Protocol 1 at least on the level of the paid installments. The guarantee of the protection of ownership right is each time more widely applied also at the jurisprudence of the Constitutional Court of the Republic of Lithuania. By the judgment as of 25 November 2002 the Court stated that Article 23 of the Law on the State Social Insurance Pension Benefits of the Republic of Lithuania (the wording as of 21-12-2000 and 08-05-2001) that allowed the pay of the incomplete pension benefits for the working pensioners contradicts the constitutional principle of ownership right. In this case the person’s right to the ownership has been violated by the legislator after the adoption of the anti-constitutional law [p. 82-83].
