Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the norms of Parts 1 and 2 of
Article 6 of the Republic of Lithuania Law on Land
regulating the rights of institutions of local
self-government in the sphere of the possession of
State land as well as Article 24 of the said law
with the Constitution of the Republic of Lithuania
25 September 1996, Vilnius
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, and Juozas Žilys,
the secretary of the hearing - Daiva Pitrėnaitė,
the petitioner - Andrius Kubilius and Kęstutis Skrebys,
both the members of the Seimas and representatives of a group
of the members of the Seimas of the Republic of Lithuania,
the party concerned - Julius Jurginis, the representative
of the Seimas, the secretary of the Ministry of Public
Administration Reforms and Local Government Affairs,
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the Law of
the Republic of Lithuania on Constitutional Court, in its
public hearing on 5 September 1996 conducted the investigation
of Case No. 16/95 subsequent to the petition submitted to the
Court by the petitioner - a group of the members of the Seimas
of the Republic of Lithuania - requesting to investigate if the
norms of Parts 1 and 2 of Article 6 of the Republic of
Lithuania Law on Land regulating the rights of institutions of
local self-government in the sphere of the possession of State
land as well as Article 24 of the said law are in compliance
with the Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
On 26 April 1994 the Seimas passed the Republic of
Lithuania Law on Land (Official Gazette "Valstybės Žinios" No.
34-620, 1994). By the 13 June 1995 Law "On Amending and
Appending the Republic of Lithuania Law on Land", among others,
certain norms of Articles 6 and 24 of the aforesaid law were
amended.
The petitioner requests to investigate if the norms of
Parts 1 and 2 of Article 6 of the Law on Land regulating the
rights of the institutions of local self-governments in the
sphere of the possession of State land are in compliance with
Article 119, Part 2 of Article 120 and Part 2 of Article 46 of
the Constitution, as well as if Article 24 of the Law on Land
is in conformity to Part 2 of Article 77 and Part 2 of Article
120 of the Constitution.
I
The petitioner grounds his request with the following
arguments:
1. It is established in Part 1 of Article 6 of the Law on
Land: "By the decision of the Government of the Republic of
Lithuania, the right of possession of State land shall be
vested in [...] local self-government institutions [...]", i.e.
the Government is granted a limitless right to regulate the
right of local government institutions to possess State land.
For instance, by its decision the Government can commission a
local self-government institution with possession of particular
plots of land which are on the territory of the local
government, however, at its will, it can arbitrarily deprive
the local self-government institution of this right. The law
does not prescribe any limitations to Government decisions.
Article 119 of the Constitution entitles local governments
to the right of self-government which is implemented through
local government councils. The procedure for the organisation
and activities of self-government institutions shall be
established by law, whereas in Part 2 of Article 120 of the
Constitution it is guaranteed that "local governments shall act
freely and independently within the limits of their competence
which shall be established by the Constitution and laws". Thus,
according to the Constitution, only the Constitution and laws
may limit the competence of local governments, and never the
Government by its decision.
The petitioner is of the opinion that the aforesaid norm
of Part 1 of Article 6 of the Law on Land permits the
Government to establish the whole content of local governments'
right to possess land considering that an abstract legal right
of local governments to possess land does not define the actual
content of local government competence, i.e., it is not
established in the law as to what particular State land (or
portion thereof) local governments are entitled to possess,
and, correspondingly, the law neither regulates nor limits
possible Government decisions concerning local governments.
Thus, in the opinion of the petitioner, it is the decision of
the Government that regulates the activity of the local
government, and not the law. It obviously contradicts Part 3 of
Article 119 of the Constitution whereby "the procedure for the
[...] activities of self-government institutions shall be
established by law".
Furthermore, the petitioner alleges that, in addition,
such a provision of Part 1 of Article 6 of the Law on Land
contradicts the provision of Part 2 of Article 120 of the
Constitution whereby local governments shall act freely and
independently within the limits of their competence. The fact
that the Government by its decision can deprive a local
government with the right to possess State land, disallows the
local government to act freely and independently while
possessing State land.
This provision, in the opinion of the petitioner,
contradicts Articles 97 and 98 of the Civil Code of the
Republic of Lithuania wherein it is established that the
subjects of public property law shall be the State and local
governments in the Republic of Lithuania whereas land shall be
an object of public property law with the exception of the
cases when these objects belong by the ownership right to other
subjects of property law.
Item 5 of Article 21 of the Law on the Government of the
Republic of Lithuania prescribes: "The Government of the
Republic of Lithuania shall: [...] 5) hold, use and dispose of
the State property according to the procedures and situations
established by law." Meanwhile, in the opinion of the
petitioner, the Law on Land has not established as to what
procedures and situations the Government shall possess, utilise
and dispose of State land, it is obvious, however, that, in the
Law of Land, the Government and local governments should be
equal and not subordinate subjects of public property law.
2. It is established in Part 2 of Article 6 of the Law on
Land: "The possessor of State land shall have the right,
without exceeding the given authority, to utilise the land, to
lease the land to other natural and legal persons for the
period of up to 3 years, as well as to adopt decisions
regarding the allotment of land for utilisation to natural and
legal persons providing the laws and legal acts do not
prescribe otherwise." Thus it is established by law that a
local government institution which acquired the right to
possess State land by the decision of the Government may lease
it to other natural and legal persons for the period not
exceeding 3 years.
The petitioner alleges that because of such a limitation
of local governments' rights they are not permitted to freely
and independently plan and promote their socio-economic
development while establishing local government enterprises or
permitting to establish private enterprises as it requires a
long-term land lease but not that of 3 years. The actual right
of self-government institutions to freely and independently
plan and promote socio-economic development of their territory
is a traditional and one of the most important rights of
self-government. Such a right cannot be implemented without the
independent and factual right of self-government institutions
to lease to private entities of economy for a long term the
State land which is possessed by the local government. The
petitioner assumes, therefore, that the provision of Part 2 of
Article 6 of the Law on Land whereby local governments are
permitted to lease the State land which is possessed by them
only up to the period of only 3 years contradicts Articles 119
and 120 of the Constitution.
The petitioner also alleges that local governments which
are closest to the society know better people's interests if
compared with other government institutions. The provision that
local governments are permitted to lease the State land that is
possessed by them up to the period of only 3 years diminishes
local governments' opportunities to promote economic efforts
and initiative which are useful to the community, and this
contradicts Part 2 of Article 46 of the Constitution that
stipulates: "The State shall support economic efforts and
initiative which are useful to the community."
3. Part 1 of Article 24 of the Law on Land stipulates:
"State land shall be sold or in any other way transferred into
private ownership by the county governors in accordance with
the procedure established by law and the Government of the
Republic of Lithuania."
The petitioner alleges that the provision according to
which the Government must establish by its decision as to what
procedure state (public) property is transferred into private
one contradicts Part 2 of Article 128 of the Constitution
wherein it is established: "Procedures concerning the
management, utilisation, and disposal of State property shall
be established by law." He is of the opinion that in case that
the Constitution provided that "procedures shall be established
by law", the content of those procedures must be established by
the law-maker and not the Government. Therefore, the law-maker
may not transfer to anyone else, including the Government, this
right which has been commended to it as it was made in regard
of State land in Part 1 of Article 24 of the Law on Land.
4. It is established in Part 2 of Article 24 of the Law on
Land: "While making contracts of sale and purchase as well as
of lease and use of land plots, either the county governor or,
upon of his authorisation, the head of the county governor's
administration service for organisation of land exploitation
and geodesy shall represent the State." The provision that "the
county governor [...] shall represent the State", in the
opinion of the petitioner, contradicts Part 2 of Article 77 of
the Constitution wherein it is established that only the
President shall represent the State of Lithuania.
The said provision also contradicts Article 9 of the Law
of the Republic of Lithuania on the Governing of the County
wherein it is prescribed that the county governor may adopt
decisions concerning making contracts of sale and purchase as
well as of lease and use of land if this is related to the land
reform (item 3 of Article 9) or if this is free state land
stock which has not been transferred into the possession of the
institutions of self-government (item 1 of Article 9). In all
other cases the county governor shall merely perform legal
registration of land (item 2 of Article 9).
The petitioner is of the opinion that the disputed norm
contradicts Article 99 of the Civil Code, too, which
stipulates: "The possessions of the State and local governments
shall be managed, utilised and disposed of by corresponding
institutions of the supreme power and government, as well as
those of local power and government, of the Republic of
Lithuania on the grounds of laws and other normative acts of
the Republic of Lithuania." The petitioner deems that it is
impossible to consider that the county governor, not to mention
the head of the county governor's administration service for
organisation of land exploitation and geodesy who is authorised
by the latter, is an institution of the supreme power and
government, as, according to Part 1 of Article 1 of the Law on
the Governing of the County, the county is only a higher
territorial administrative unit of the Republic of Lithuania
whereas the county governor is an institution through which the
Government shall organise the governing in this territory.
5. The petitioner also assumes that the provision of
Article 24 of the Law on Land that either the county governor
or the head of the service for organisation of land
exploitation and geodesy who is subordinate to the former shall
sell, lease or transfer to use State land irrespective of who
is entitled to possess it contradicts the provision of Part 2
of Article 120 of the Constitution which reads: "Local
governments shall act freely and independently within the
limits of their competence which shall be established by the
Constitution and laws". In the opinion of the petitioner,
taking into account that the county governor may sell, lease or
confer the right to use state free land stock which
self-government institutions are granted to possess pursuant to
item 1 of Article 9 of the Law on the Governing of the County,
then local governments cannot freely and independently
implement this legitimate right of theirs.
On the grounds of the motives set forth, the petitioner
requests to recognise that the norms regulating the rights of
self-government institutions in the sphere of possessing of
State land of Parts 1 and 2 of Article 6 of the Law on Land
passed on 26 April 1994 and amended on 13 June 1995 contradict
Article 119, Part 2 of Article 120 and Part 2 of Article 46 of
the Constitution, whereas Article 24 of the said law
contradicts Part 2 of Article 77 and Part 2 of Article 120 of
the Constitution.
The representatives of the petitioner in essence
reiterated the request and arguments of the group of Seimas
members.
II
The representative of the party concerned - the Seimas -
explained in the court hearing:
1. According to Part 1 of Article 5 of the Constitution,
"in Lithuania, the powers of the State shall be exercised by
the Seimas, the President of the Republic and the Government,
and the Judiciary". Thus, the representative of the party
concerned is of the opinion that local governments do not
exercise the powers of the State, therefore they may not take
over the functions of the State to dispose of State land as
local governments are the subject of neither State land law nor
land property law in general (Part 1 of Article 47 of the
Constitution). When the Law on Supplementing Article 47 of the
Constitution of the Republic of Lithuania, as well as the
Constitutional Law on the Subjects, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for by Part 2 of Article 47 of the
Constitution of the Republic of Lithuania, has gone into
effect, local governments will be able to acquire from the
State into their possession only such land that is designed to
exploit buildings and facilities which are necessary to perform
their functions or to build them pursuant to the same procedure
and conditions that are applied to every other national subject
(legal person).
2. The representative of the party concerned alleges that
the following normative acts establish the property rights of
the State and local governments:
1) Part 3 of Article 95 of the Civil Code:
"Public property shall consist of State property and local
governments' property";
2) Part 1 of Article 951 of the Civil Code:
"Natural persons, legal persons, the State and local
governments may be subjects of property law in the Republic of
Lithuania";
3) Article 98 of the Civil Code:
"In the Republic of Lithuania, the objects of public
property law shall be:
1) land, natural resources, except for the cases when
these objects belong to other subjects of property law by the
right of ownership;
2) material resources assigned to implement the functions
as well as the fulfilment-management functions of the supreme
powers of the State and of local governments of the Republic of
Lithuania;
3) portion of the possessions which belongs to the
Republic of Lithuania or the local government together with
other subjects of property law by the right of shared property;
4) the possessions of state (local governments')
enterprises, offices and organisations;
5) state (local governments') banks and financial
resources of budgets."
In the opinion of the representative of the party
concerned, when these Civil Code provisions are applied to
State land, they may not contradict Article 47 of the
Constitution, i.e., only the State may be the subject of state
land law.
The representative of the party concerned alleges that the
right of the State to transfer the possessions that belong to
it to other institutions is provided for in Article 96 of the
Civil Code which establishes that "the owner shall possess the
property which belongs to him, he shall use and dispose of it
according to the laws of the Republic of Lithuania, however, he
may not violate the rights and legitimate interests of other
persons". Part 2 of the said article stipulates: "The owner
must permit other persons, the State or the local government to
use his property in limited manner in cases and under the
conditions provided for in laws and to the extent the laws
permit to do so." Article 99 of the Civil Code also establishes
this right of the State wherein it is stipulated that "the
possessions of the State and local governments shall be
managed, utilised and disposed of by corresponding institutions
of the supreme power and government, as well as those of local
power and government, of the Republic of Lithuania on the
grounds of laws and other normative acts of the Republic of
Lithuania." Furthermore, Part 2 of the said article provides
that "state or local governments' enterprises, offices and
organisations shall manage, utilise and dispose of
corresponding possessions of the State or the local government
following their regulations (statutes) on trust".
The representative of the party concerned assumes that,
according to the provisions of the aforementioned articles, it
is permitted to possess and utilise property following the
procedure established not only by laws but by other normative
acts, too. Besides, the State as the owner of the property
(land) is entitled to establish conditions regarding the
possessing and use of this property. In his opinion, the
following causes determine state regulation in the sphere of
the possession and use of land:
1) The implementation of land reform. According to Article
3 of the Law of the Republic of Lithuania on Land Reform, "the
object of land reform shall be the Land Fund of the Republic of
Lithuania". It means that land reform is an integral process
and it may not be commissioned to be accomplished to several
institutions. According to item 3, Article 9 of the Law of the
Governing of the County, the county governor shall implement
land reform, and according to item 1 of the said article, he
shall manage free state land stock, with the exception of land
transferred into the possession for the institutions of local
authorities.
2) Economic functions. Following the Republic of
Lithuanian Law on Territorial Planning, the regulations and
control of the utilisation of the State land, as well as
permission to use it, its lease, management and supervision
must be ensured by the institutions which are responsible for
these possessions. Part 1 of Article 123 of the Constitution
stipulates: "In higher level administrative units, the
administration shall be organised by the Government according
to the procedure established by law." In the Law on the
Governing of the County, the competence of the Government and
that of its commissioned institutions are set forth wider,
namely:
a) Part 1 of Article 1 establishes: "The county is a
higher territorial administrative unit of the Republic of
Lithuania, the governing of which shall be organised by the
Government through the governor of the county, the Ministries
and other Government institutions. The government of the county
is a constituent part of state administration";
b) Article 8 establishes the powers of the county governor
in the sphere of territorial planning and monument
conservation;
c) Article 9 establishes the powers of the county governor
in the sphere of land use planning, land cadastre and
agriculture. Item 4 of this article stipulates that the county
governor shall "perform state regulation of land servitude
(ownership) and land use, as well as state control of land
use".
The representative of the party concerned also assumes
that Article 30 of the Law on Land establishes corresponding
functions and competence of State institutions in regulating
relations pertaining to land wherein the competence (in
accordance with other laws) of local self-government
institutions is explicitly set forth. Therefore, in his
opinion, it is impossible to assert that there exist no legal
provisions regulating the procedure of the local
self-government institutions' activities while possessing
allotted to them free stock of State land. The representative
of the party concerned is of the opinion that this procedure
does not contradict the Law on Self-Government.
3. The representative of the party concerned also alleges
that the question raised by the petitioner as to why the
Government and not law establishes which land shall transferred
to local governments into possession it may not be associated
with Part 3 of Article 119 of the Constitution as this part
merely mentions the procedure of the activities of local
self-government institutions but not the portion of State
property which is allotted to them to possess. In his opinion,
the requirement that only law should establish as to what
particular land plots must be transferred to local governments
and how they must be managed is not a grounded one as there
exists no law which were particularised to such an extent that
it were adjusted to implement directly (e.g., the provisions
regarding taking of land of Article 32 of the Law on Land were
particularised in the procedure approved in the 24 October 1995
Government Resolution No. 1379 "On submitting and examining
requests regarding taking of land for public needs as well as
confirming the procedure of recovering losses suffered from the
taking of land", whereas the provisions concerning allotment of
State land for use of Article 22 of the Law on Land were
particularised in the 13 November 1995 Government Resolution
No. 1428 "On the procedure of allotment of State land for use",
etc.).
The representative of the party concerned assumes that the
fact that there exist restrictions on the rights of local-self
government executive institutions to lease the land which has
been allotted into their possession is determined by the
specific character of use and privatisation of land during the
land reform. State land plots are not steady because they are
gradually privatised: they are (in rural areas) returned in
equivalent kind, they are allotted to become one's property or
sold, also they are allotted for use or leased for long term by
giving the right to build capital buildings. During the land
reform, the decisions regarding the aforementioned questions
are adopted only by the county governor and the Government.
4. In the opinion of the representative of the party
concerned, the allegation of the petitioner that "in the Law of
Land, the Government and local governments should be equal and
not subordinate subjects of the public property law" is not a
correct one because they are not subjects of equal value in
respect of land property law. In the assumption of the
representative of the party concerned, the county governors
shall have the right to dispose of State land pursuant to
Articles 7, 17 and 19 of the Law on Land Reform, Article 24 of
the Law on Land, as well as Article 9 of the Law on the
Governing of the County.
According to item 5, Article 21 of the Law on the
Government, the Government shall "hold, use and dispose of the
State property according to the procedures and situations
established by law", and, according to item 10, Article 12 of
the Law on the Governing of the County, when exercising the
powers attributed to him, the county governor shall have the
right "in cases and according to the procedure established by
laws, to manage, utilise, and dispose of state property". The
representative of the party concerned is of the opinion that
local government institutions are not granted such a right,
however, when the Constitutional Law on the Subjects,
Procedure, Terms and Conditions and Restrictions of the
Acquisition into Ownership of Land Plots Provided for by Part 2
of Article 47 of the Constitution has gone into effect, local
governments will have the right to dispose of land which they
have acquired into property, and, furthermore, they have
already entered into the State land possession and management
process by implementing the documents of territorial planning,
viz., by establishing the character and conditions of
activities, construction regulations, co-ordinating the
boundaries of land plots which are formed, etc.
5. The representative of the party concerned assumes that
the allegation of the petitioner that the provision of Part 2
of Article 24 of the Law on Land that while making land
contracts, either the county governor or, upon of his
authorisation, another person shall represent the State
contradicts Part 2 of Article 77 of the Constitution wherein it
is established that only the President shall represent the
State of Lithuania is not a correct one. Part 2 of Article 77
of the Constitution prescribes that the President of the
Republic "shall perform all the duties which he or she is
charged with by the Constitution and laws". In the opinion of
the representative of the party concerned, the President of the
Republic, as one of the subjects of the State powers, is
commissioned by no law with solving questions concerning sale,
possession or use of land, meanwhile, the county governor is
permitted to dispose of State land by the aforementioned
articles of the Law on the Governing of the County, the Law on
land Reform, and the Law on Land.
In the opinion of the representative of the party
concerned, by the provisions of these legal acts, it was
attempted to ensure land management during the time period when
land reform is carried out, to avoid the fissure of structures
implementing the reform, as well as to include to participate
in this process local government executive institutions as much
as possible.
The representative of the party concerned, on the grounds
of the motives set forth, alleged that the request of the
petitioner is not a grounded one.
The Constitutional Court
holds that:
It is established in Part 1 of Article 47 of the
Constitution: "Land, internal waters, forests, and parks may
only belong to the citizens and the state of the republic of
Lithuania by the right of ownership".
Article 54 of the Constitution consolidates the
constitutional principle of protection of land, along with
other major entities of nature.
It may be seen from Articles 47 and 54 of the Constitution
that land is estimated as a universal value the main social
function of which is to serve the welfare of the nation.
Therefore it is especially important that this value were used
rationally and effectively. This grounds an objective necessity
as well as duty for the state to regulate land property
relations so that all interests of subjects of land legal
relations were co-ordinated and the main function of land were
ensured. While regulating land relations, the provision of
Article 10 of the Constitution may not be forgotten which
consolidates the principle of the integrity and indivisibility
of the territory of the State of Lithuania. Naturally, the
rights of land owners must be such that they would not become
dependent on arbitrary will of other land legal relations'
subjects, namely, its managers and users. This is also
applicable to the rights of the state as the only owner of
state land.
It should be noted that the legal status of State land was
formed on the basis of Lithuanian law traditions, too. In view
of historical perspective, it could be observed that, in the
past, the State of Lithuania had the exclusive right to possess
state land belonging to it by the property right so that it
were properly used in general welfare of the nation. This is
confirmed in Article 90 of the 1922 Constitution, Article 91 of
the 1928 Constitution, Article 53 of the 1938 Constitution. On
11 March 1990, after the Independent State of Lithuania had
been reinstated, this right of the State was consolidated in
the Provisional Basic Law (Articles 45 and 46).
The processes of the restoration of ownership right to
land and land reform which take place presently in the State
are inseparable from each other and realised through one common
object - land. When ensuring the development of these
processes, it is necessary to co-ordinate interests of various
subjects as much as possible. It should be noted that neither
the Constitution, nor other effective laws deny the State's
possibility to choose priorities in the sphere of regulated
legal relations and to establish certain specific requirements
to corresponding subjects, in this case to managers of State
land and its users. The purpose of land determines specific
features of the regulations of land legal relations.
It is established in the 20 June 1996 Constitutional Law
on Supplementing Article 47 of the Constitution of the Republic
of Lithuania, as well as in the Constitutional Law on the
Subjects, Procedure, Terms and Conditions and Restrictions of
the Acquisition into Ownership of Land Plots Provided for by
Part 2 of Article 47 of the Constitution of the Republic of
Lithuania (hereinafter in the ruling referred to as the
Constitutional Law), that local governments will have the right
to acquire into property land plots for non-agriculture
purposes. By granting the local governments the right to
acquire into property such land plots which have the said
purpose, it is indicated, together with other conditions,
limitations and corresponding procedure, that these plots will
permitted to be used only for construction and exploiting of
buildings and facilities which are necessary to perform
immediate functions of local governments. It is also important
that the Constitutional Law will go into effect only after the
Europe Agreement which establishes an association of European
Communities and their Member States and the Republic of
Lithuania has entered into force.
It should be noted that the constitutional consolidation
of the right of local governments to acquire land into property
and its development in other laws is a new phenomenon in the
evolution of local self-government institutions in Lithuania.
The legislator will design a new system of legal norms on the
law level to regulate the would-be land property relations.
This is in conformity to the essence and purposes of the 1985
European Charter of Local Self-government.
However, presently local governments are not land owners
as yet, therefore they may be not held subjects of land
property relations which are equal with the State. Thus a
conclusion is to be made that the norms of civil law regulating
property relations in general and protecting the rights of
property relations' subjects may not be applied to protection
of not existing even though potential or attempted rights of
local governments to land property. Therefore, when judging
problems concerning land, one must, first of all, ground
himself on land laws.
The circumstances set forth must be primarily considered
while judging the contested norms of the Law on Land.
1. On the compliance of the norms of Article 6 the Law on
Land regulating the rights of local self-government
institutions in the sphere of the possession of state land with
Part 2 of Article 46, as well as Article 119 and Part 2 of
Article 120 of the Constitution.
1.1. The owner or, upon his authorisation, other persons
are entitled to transfer the possessions to other persons. It
established in item 5, Article 21 of the Law on the Government
that the Government shall "hold, use and dispose of State
property according to the procedures and situations established
by law". Thus the Government performs the functions of the
state property (in the case under investigation - state land)
owner. The purpose of land, if compared to other objects of
immovable property, conditions specific legal regulation of
land relations, too.
According to the Law on Local Self-Government, the
competence of local self-government institutions in the sphere
of legal relations regarding possession of State land is not
the main (independent) but that delegated by the State
(Articles 14 and 16). The Constitutional Court holds that
pursuant to Part 1 of Article 6 of the Law on Land the State
shall delegate the right to possess State land to local
self-government institutions by commissioning the Government to
register it officially. Thus the Government as an institution
which implements the functions of the State property owner is
empowered to grant the right to other subjects to possess State
property by the procedure established by the Constitution and
laws.
The Constitutional Court assumes that the provision of
Part 1 of Article 6 of the Law on Land that the Government by
its decision shall grant the right to possess State land does
not provide with the grounds to assert that thereby the content
of the right of local governments to possess land is
established. The content of the right to possess land is
regulated in laws (the Law on Land, the Law on Land Reform, the
Law on the Leasing of Land, etc.). It means that the Seimas has
not delegated the right to the Government to define the content
of the right which was granted to the local governments to
possess State land. The Seimas, however, may commission the
Government to adopt corresponding act whereby State land were
transferred to local governments by the right of possession. It
should be noted that after the aforesaid Constitutional Law has
been applied, local governments will be permitted to have the
right of ownership to land.
At the same time, the Constitutional Court notes that the
provision "by the decision of the Government" of Part 1 of
Article 6 of the Law on Land leaves a possibility to interpret
its content in dubious manner, as well as to vaguely conceive
the limits of legal regulation. However, the interpretation of
legal notions must be not only literal but also logical and
systemic. Such interpretation methods of the notion "by the
decision of the Government" leaves no grounds to assert that
Part 1 of Article 6 of the Law on Land permits the Government
to interfere with the competence of local governments'
activities that are established by laws in the sphere of the
possession of the transferred State land. Therefore the
allegation that the provision of Part 1 of Article 6 of the Law
on Land permits the Government to define the whole content of
the right of local governments to possess land is not a
grounded one.
1.2. It is established in Part 2 of Article 6 of the Law
on Land that the possessor of State land shall have the right,
without exceeding the given authority, to utilise the land, to
lease the land to other natural and legal persons for the
period of up to 3 years, as well as to adopt decisions
regarding the allotment of land for utilisation to natural and
legal persons providing the laws and legal acts do not
prescribe otherwise.
Such rights of local governments in the sphere of land
possession are determined by the legal status of State land.
The State as a subject of public property law by giving the
right to manage the possessions which are its property may
impose certain limitations on the management and use of its
possessions, e.g., servitude, certain restrictions on the term
of land leasing contracts, prohibition to change the major
purpose of land use without the consent of the owner, etc.
However, only law may establish restrictions for the possession
of State land. As regards the disputed norm, this is
established in Part 2 of Article 6 of the Law on Land and Part
5 of Article 9 of the Law on the Leasing of Land.
Thus all restraints concerning management of State
possessions as established by law provide with no basis to
assert that this restricts economic efforts and initiative
which are useful to the community.
Taking account of all motives set forth, a conclusion is
to be drawn that the norms of Article 6 the Law on Land
regulating the rights of local self-government institutions in
the sphere of the possession of state land are in compliance
with Part 2 of Article 46, as well as Article 119 and Part 2 of
Article 120 of the Constitution.
2. On the compliance of Article 24 of the Law on Land with
Part 2 of Article 77 and Part 2 of Article 120 of the
Constitution.
2.1. It is established in Part 1 of Article 24 of the Law
on Land: "State land shall be sold or in any other way
transferred into private ownership by the county governors in
accordance with the procedure established by law and the
Government of the Republic of Lithuania." The petitioner
alleges that the provision of this law "in accordance with the
procedure established [...] by the Government" violates Part 2
of Article 128 wherein it is prescribed: "procedures concerning
the management, utilisation, and disposal of State property
shall be established by law".
According to item 2, Article 94 and item 2 of Article 21
of the Law on the Government, the Government shall implement
laws and resolutions of the Seimas concerning the
implementation of laws. Consequently, legal acts adopted by the
Government may not contradict laws or change the content of the
legal norm, in this case, land relations regulated by the Law
on Land. The commission for the Government to regulate the
procedure of State property transfer as consolidated in Part 1
of Article 24 of the Law on Land must also be accomplished on
legal basis.
Thus, if the Seimas' commission for the Government to
establish the procedure of State property transfer as indicated
in Part 1 of Article 24 of the Law on Land were understood as
the requirement of the legislator to establish the procedure of
the process of the property transfer or as a general
requirement to adopt a corresponding legal act which is in
conformity to laws, the disputed norm would be in compliance
with the Constitution. Therefore the doubt alone that the
wording of the disputed norm of the Law on Land may be
understood ambiguously is insufficient to ground the statement
that the provision "in accordance with the procedure
established [...] by the Government" of Part 1 of Article 24 of
the Law on Land contradicts Part 2 of Article 120 of the
Constitution.
Alongside, the Constitutional Court notes that such a
wording of the said norm is a defective one as obscurities may
arise whether the law or the substatutory act is the genuine
source of regulation of land relations. This is so because Part
1 of Article 24 of the Law on Land does not particularise the
competence of the legislator and the Government in the sphere
of establishing the procedure of the transfer of State land
into private ownership. A more precise wording of the disputed
norm of Part 1 of Article 24 of the Law on Land is necessary
because of the imperative requirement of item 6, Article 10 of
the Constitutional Law stipulating that the Government shall
establish only procedures of decisions regarding issues of
acquiring land into property.
2.2. It is established in Part 2 of Article 24 of the Law
on Land: "While making contracts of sale and purchase as well
as of lease and use of land plots, either the county governor
or, upon of his authorisation, the head of the county
governor's administration service for organisation of land
exploitation and geodesy shall represent the State." The
petitioner is of the opinion that the provision "the county
governor [...] shall represent the State" contradicts Part 2 of
article 77 of the Constitution which stipulates that the
President shall represent the State of Lithuania.
In the opinion of the Constitutional Court, this
constitutional norm has a different meaning. Part 2 of Article
77 of the Constitution means, first of all, that the function
of the President of the Republic as the head of the State is to
represent the State of Lithuania in the sphere of international
relations, i.e., the relations with other states and
international organisations. It is, in essence, the
representative function of the head of the state. Actually,
similar functions are performed by the heads of other supreme
institutions of power - the Seimas and the Government.
Nonetheless, it is impossible to link the sense of Article 77
of the official representation of the state with granting of
any particular rights and powers let alone representation in
property relations. The procedure of representation in the
sphere of civil legal relations is established by the Civil
Code and other laws.
In the sphere of internal affairs, the state may be
represented by other state officials who are obligated by laws
or other legal acts which establish their competence. In this
disputed case, the commissions of the county governor to
represent the state in the sphere of civil legal relations
while making contracts of sale and purchase as well as of lease
and use of land plots are prescribed not only in Part 2 of
Article 24 of the Law on Land but also in the Law on the
Governing of the County.
2.3. The provision "State land shall be sold or in any
other way transferred into private ownership by the county
governors in accordance with the procedure established by law
and the Government of the Republic of Lithuania" of Part 1 of
Article 24 of the Law on Land does not restrict possibilities
of local governments to act freely and independently within the
competence which shall be established by the Constitution and
the laws as the county governor may sell, lease or grant the
right to use only state free land stock. State free land is
land which has not been transferred, leased or given for use to
other subjects, as well as institutions of local
self-government. This is established in item 1, Article 9 of
the Law on the Governing of the County. It provides that the
county governor shall "manage state free land stock, with the
exception of land transferred into the possession of the
institutions of local self-government". Thus the contested
provision of Part 1 of Article 24 of the Law on Land is in
compliance with the norm "local governments shall act freely
and independently within the limits of their competence which
shall be established by the Constitution and laws" of Part 2 of
Article 120 of the Constitution.
2.4. The motives of the petitioner concerning the
inconsistency of the disputed provision of Part 2 of Article 24
of the Law on Land with Article 9 of the Law on the Governing
of the County and with Article 99 of the Civil Code are related
to issues of collision of laws which shall be judged by the
legislator but never by the Constitutional Court (Article 1 of
the Law on the Constitutional Court).
On the grounds of the arguments set forth, a conclusion is
to be drawn that Article 24 of the Law on Land is in compliance
with Part 2 of Article 77 and Part 2 of Article 120 of the
Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law
of the Republic of Lithuania on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
To recognise that the norms of Parts 1 and 2 of Article 6
of the Republic of Lithuania Law on Land regulating the rights
of institutions of local self-government in the sphere of the
possession of State land as well as Article 24 of the said law
are in compliance with the Constitution of the Republic of
Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.