Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of the Republic of Lithuania
Government 17 July 1995 Resolution No. 987 "On
selling and lease of state land plots for
non-agriculture activities" with the Constitution
of the Republic of Lithuania as well as with
Articles 97, 98, 99 of the Civil Code of the
Republic of Lithuania and items 1 and 3 of Article
9, Part 1 of Article 14 and Article 18 of the Law
of the Republic of Lithuania on the Governing of
the County
22 October 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, Teodora Staugaitienė, and Juozas Žilys,
the secretary of the hearing - Daiva Pitrėnaitė,
the petitioner - Andrius Kubilius, a member of the Seimas
and the representative of a group of the members of the Seimas
of the Republic of Lithuania,
the party concerned - Julius Jurginis, the secretary of
the Ministry of Public Administration Reforms and Local
Government Affairs, Miroslavas Gruodis, the head of the Legal
Expertise Division of the Ministry of Public Administration
Reforms and Local Government Affairs, Stanislovas Naujalis, a
deputy director of the Department of the Territorial Planning
of the Ministry of Construction and Urban Planning, they all
are representatives of the Government of the Republic of
Lithuania,
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 26 September 1996 conducted the investigation
of Case No. 17/95 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
Republic of Lithuania Government 17 July 1995 Resolution No.
987 "On selling and lease of state land plots for
non-agriculture activities" is in compliance with Part 2 of
Article 128, Articles 119 and 120, Part 2 of Article 77 and
Part 4 of Article 46 of the Constitution of the Republic of
Lithuania as well as with Articles 97, 98, 99 of the Civil Code
of the Republic of Lithuania, items 1 and 3 of Article 9, Part
1 of Article 14 and Article 18 of the Law of the Republic of
Lithuania on the Governing of the County.
The Constitutional Court
has established:
On 17 July 1995, the Government of the Republic of
Lithuania adopted its Resolution No. 987 "On selling and lease
of state land plots for non-agriculture activities" (Official
Gazette "Valstybės Žinios" No. 60-1513, 1995; hereinafter in
the ruling of the Constitutional Court referred to as the
disputed resolution). Item 1 of this resolution approved "The
procedure of selling and lease of state land plots for
non-agriculture activities" (hereinafter in the ruling referred
to as the Procedure of Selling and Lease) and "The regulations
of selling and lease by non-auction procedure of state land
plots for non-agriculture activities" (hereinafter in the
ruling referred to as the Regulations of Selling and Lease).
I
The petitioner grounds his request with the following
arguments.
1. The Government approved "The procedure of selling and
lease of state land plots for non-agriculture activities" by
Item 1 of the aforesaid resolution. In the opinion of the
petitioner, the provision that the Government establishes as to
what conditions and procedure the form of property shall be
changed from state (public) into private one contradicts Part 2
of Article 128 of the Constitution which establishes that
"procedures concerning the management, utilisation, and
disposal of State property shall be established by law". The
petitioner is certain that only the legislator is entitled to
establish procedure concerning the management, utilisation, and
disposal of the property and may not delegate to other
subjects, including the Government, this right which has been
assigned, according to the Constitution, exclusively to him.
2. Item 2 of the disputed Government resolution granted
the right to possess state land to executive institutions of
local self-government. The petitioner is of the opinion that
this provision whereby the Government by its decision shall
grant the right to possess state land in different territories
to executive institutions of local self-government contradicts
Part 2 of Article 120 of the Constitution wherein it is
stipulated that local governments shall act freely and
independently within the limits of their competence which shall
be established by the Constitution and laws. Thus, as it is
noted by the petitioner, the Constitution provides that the
competence of local governments may be circumscribed only by
the Constitution and laws and never by Government resolutions,
therefore the legislator may not delegate to the Government the
right to circumscribe the competence of local governments
including that pertaining to the sphere of land possession and
this right has been assigned, according to the Constitution,
exclusively to him.
The petitioner also indicates that Item 2 of the
Government resolution contradicts items 1 and 3 of Article 9 of
the Law on the Governing of the County wherein it is
established 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 as well
as implement land reform. As, according to Part 1 of Article 4
of the Law of the Republic of Lithuania on Land Reform, land
reform must be implemented by the county governor, and
self-government institutions may not be transferred state free
land required to implement land reform. According to Part 1 of
Article 45 of the Republic of Lithuania Law on Land, the stock
of the state free land which is not allotted for the use by
natural and legal persons, and not leased or transferred into
private ownership may and must be transferred to local
governments into possession. This is not only the land of towns
but also the land occupied by other residential areas: towns,
small towns and villages the notions of which are defined in
Article 3 of the Law on the Territorial Administrative Units of
the Republic of Lithuania and their Boundaries. The fact that
the competence of the county governor regarding management,
utilisation, and disposal of state land is confined within the
limits of implementation of land reform permits to assert that
the provision of the Government resolution to grant the land
possession right to executive institutions of self-government
only on the territories which are within the boundaries of
administrative units of local governments of towns contradicts
items 1 and 3 of Article 9 of the Law on the Governing of the
County.
3. Item 3.1 of the Government resolution establishes that
"the county governor may sell or lease new plots of state land
by non-auction procedure in rural areas as well as the
territories indicated in Items 2.1 and 2.2 of this resolution",
i.e., the county governor is granted the right to manage state
free land which local governments are commissioned to possess
by Items 2.1 and 2.2 of this resolution. In the opinion of the
petitioner, this provision contradicts item 1 of Article 9 of
the Law on the Governing of the County which establishes 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" as the county governor
is granted the right to dispose of state free land which local
governments are commissioned to possess by Items 2.1 and 2.2 of
this resolution. Besides, as it is noted by the petitioner,
Article 5 of the Law Concerning Implementation of the Law of
the Governing of the County established that, upon the Law of
the Governing of the County going into effect, Government
resolutions and other legal acts regarding issues of organising
county governing shall be valid to the extent that they do not
contradict the Law on the Governing of the County.
The petitioner also alleges that Item 3.1 of the
Government resolution contradicts Articles 97 and 98 of the
Civil Code which establish that the object of public property
law in the Republic of Lithuania shall, along with other
property, be land whereas the subjects of public property law
shall be the State and local governments. Thus the Civil Code
provides for two public property law independent subjects that
accomplish independently their right which has been granted to
them by laws to possess public property. However, the aforesaid
provision of the Government resolution creates conditions to
one of the public property subjects to actually restrict the
rights of the other subject in the sphere of possession of
state land.
4. Item 3.4 of the Government resolution establishes that
the county governor shall decide disagreements between legal or
natural persons and the mayor (board), when establishing the
size, boundaries, purpose, limitations and terms, conformity of
the approved detailed plan of the sold (transferred) or leased
land plot. The petitioner is of the opinion that such a
provision when the county governor may decide the conflict
between an executive institution of local government and
natural or legal persons groundlessly broadens the regulation
sphere of the Law on the Governing of the County because the
said law does not provide that the county governor shall be
entitled to suspend, amend, or cancel decisions adopted by
local governments. Furthermore, the said provision contradicts
Part 1 of Article 14 of the Law on the Governing of the County
which provides that the relations of the county governor with
administrative institutions of self-government shall be limited
to co-operation.
Item 3.4 of the said resolution also establishes that
decisions of the county governor regarding decisions of
disagreements between legal or natural persons and the mayor
(board) may only be appealed against in court. In the opinion
of the petitioner, this provision contradicts Article 18 of the
Law on the Governing of the County which establishes that the
county governor shall issue orders and other legal acts while
the Government shall have the right to repeal the orders and
legal acts of the county governor if they are not in conformity
with the Constitution of the Republic of Lithuania, the laws,
other legal acts passed by the Seimas, decrees of the President
of the Republic and the resolutions of the Government. Thus,
decisions of the county governor may not only be appealed
against in court but also petitioned to the Government.
5. Item 2 of the Procedure of Selling and Lease as
approved by the Government resolution establishes that "while
selling or otherwise transferring state land for
non-agriculture activities, the respective county governor or,
upon his authorisation, the head of the county governor's
administration service for organisation of land exploitation
and geodesy shall represent the State. The county governor
shall permit by his decision to sell or otherwise transfer a
land plot".
The petitioner is of the opinion that this provision
contradicts Article 9 of the Law of the Governing of the County
which does not provide that the county governor is entitled to
sell land when this is not related to the land reform. The said
provision also contradicts Article 99 of the Civil Code wherein
it is established that "the possessions of the State and local
governments shall be managed, utilised and disposed of by
respective 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". It is impossible to hold that the
county governor is an institution of the supreme power and
government of state let alone the head of the county governor's
administration service for organisation of land exploitation
and geodesy who is authorised by the latter 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. In the opinion of the petitioner,
the provision that "the county governor 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.
6. Items 7.1.9 and 8.1.19 of the Procedure of Selling and
Lease provide that state land plots for non-agriculture
activities shall also be sold or leased by non-auction
procedure without prior conditions in the case when the
Government adopts a special decision. The petitioner alleges
that such a provision which permits the Government to place
certain persons at a privileged position obviously contradicts
the principles of fair competition that are consolidated in
Part 4 of Article 46 of the Constitution wherein it is
established that "the law shall prohibit monopolisation of
production and the market, and shall protect freedom of fair
competition".
7. Item 14 of the Regulations of Selling and Lease as
approved by the disputed Government resolution provides that
the mayor, on his proposal, shall transfer the size of land
plots which are to be sold (the sketch of the land plot
prepared so as it is provided for in Item 6 of the Regulations
of Selling and Lease as approved by said disputed resolution)
to the district agriculture board or the town service for
organisation of land exploitation and geodesy whereas Item 15
of the said resolution provides that "the mayor shall be
entirely responsible for the accuracy and validity of the data
presented". Item 21 of these Regulations of Selling and Lease
also provides that the mayor must submit the district
agriculture board or the town service for organisation of land
exploitation and geodesy the prescribed data characterising a
leased land plot (its size and boundaries which are noted in a
copy of the technical report file of the land plot plan, as it
is required by Item 21.1) while Item 22 indicates that the
mayor shall be entirely responsible for the accuracy and
validity of the data presented.
The petitioner points out that Part 4 of Item 6 of the
Procedure of Selling and Lease establishes that "sketches of
sold or leased non-agriculture purpose land plots for
non-agriculture purposes shall be prepared from the means of
the persons concerned pursuant to the procedure established by
the State Service for Organisation of Land Exploitation and
Geodesy under the Ministry of Agriculture" whereas Part 5 of
Item 6 prescribes that the work of land survey and that of
preparation of land plots shall be organised conforming to the
established procedure of the 30 April 1992 Government
Resolution No. 316 "On approving statutes of the Republic of
Lithuania state cadastre on land (along with the elements of
real property)". The petitioner also notes that said Government
Resolution No. 316 does not provide that the mayors or local
governments may have any influence upon preparation of land
plot sketches.
The 29 March 1995 Government Resolution No. 451 "On
transfer of local governments' functions which are not
delegated by law to county governors" established that all
functions, thus, those of organisation of land exploitation,
too, which had not been delegated to local governments shall be
transferred, along with all staff and material and financial
resources, to county governors. Therefore, at the given moment,
the mayors have no actual possibilities to fulfil their
functions provided for by Items 14 and 21 of the Regulations of
Selling and Lease. In the opinion of the petitioner, that fact
that functions are delegated by a resolution and not by law
contradicts Part 3 of Article 14 of the Law on Local
Self-Government. The petitioner alleges that the fact that the
mayors who do have any corresponding services and who do not
have any influence upon preparation of the sketches, either,
are forced to submit land plot sketches the preparation
procedure of which is established by the State Service for
Organisation of Land Exploitation and Geodesy that is not
subordinate to them, as well as the fact that they are made
responsible for the accuracy of the submitted data, contradicts
Part 2 of Article 120 of the Constitution establishing that
local governments shall act freely and independently within the
limits of their competence which shall be established by the
Constitution and laws. In this case, the mayors of local
governments may not act freely and independently as the
Government grants them the competence (to submit the data
regarding land plots) by one resolution while by its another
resolution it deprives them with physical and material
possibilities (services for organisation of land exploitation)
to fulfil these obligations.
On the grounds of the motives set forth, the petitioner
requests to recognise that the Republic of Lithuania Government
17 July 1995 Resolution No. 987 "On selling and lease of state
land plots for non-agriculture activities" contradicts Part 2
of Article 128, Articles 119 and 120, Part 2 of Article 77 and
Part 4 of Article 46 of the Constitution as well as Articles
97, 98, 99 of the Civil Code, items 1 and 3 of Article 9, Part
1 of Article 14 and Article 18 of the Law of the Republic of
Lithuania on the Governing of the County.
During the court hearing the representative of the
petitioner emphasised that the items of the disputed Government
resolution which are indicated in the motives of the petitioner
are essential ones. Providing the Constitutional Court
recognised that they contradict the Constitution, all the
remaining items of the disputed resolution would lose their
sense.
II
When the case was being prepared for the court hearing,
the representatives of the party concerned - the Government -
presented the following counter-arguments.
1.1. As regards the allegation of the petitioner that the
Government is not permitted to establish conditions and
procedure of selling and lease of sate land as Article 128 of
the Constitution indicates that procedures concerning the
management, utilisation, and disposal of State property shall
be established by law, J. Jurginis, the secretary of the
Ministry of Public Administration Reforms and Local Government
Affairs, a representative of the party concerned, explained:
Article 24 of the Law on Land establishes that 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, thus, this law has
established as to who may dispose of land while transferring it
into private ownership and what procedures must be followed
when doing so. In the opinion of the representative of the
party concerned, the Government adopted said disputed
resolution by following law, therefore it has not violated the
Constitution.
1.2. The representative of the party concerned alleges
that the provisions of the disputed Government resolution
whereby executive institutions of self-government are entitled
to possess state land in particular territories does not
contradict Part 2 of Article 120 of the Constitution which
stipulates that "local governments shall act freely and
independently within the limits of their competence which shall
be established by the Constitution and laws" as the provision
of Item 2 of the disputed Government resolution is grounded on
Article 6 of the Law on Land whereby the right to possess state
land shall be granted to local self-government institutions by
the decision of the Government. Moreover, on the grounds of
item 3, Part 5 of Article 30 of the Law on Land, the land plot
which is subject to be transferred to local governments into
possession shall be defined in accordance with how much of land
is needed to implement the competence of self-government
institutions.
1.3. The representative of the party concerned is of the
opinion that Item 3.1 of the disputed Government resolution is
in compliance with the provision of item 1 of Article 9 of the
Law on the Governing of the County whereby 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. In his opinion, the land management that is
indicated in the said law does not embrace law of disposition.
1.4. The representative of the party concerned is of the
opinion that the allegation of the petitioner that Item 3.4 of
the disputed Government resolution which establishes that the
county governor may decide certain disagreements between legal
or natural persons broadens the county governor's competence of
regulation which is established by the Law on the Governing of
the County is not a grounded one. The disputed provision of the
said resolution provides that the county governor shall decide
disagreements between legal or natural persons and the mayor
(board) when establishing the size, boundaries, purpose,
limitations and terms, conformity of the approved detailed plan
of the sold (transferred) or leased land plot. Providing this
issue were not regulated this way, it is possible to appeal
against to court for its final settlement.
Thus, in the opinion of the representative of the party
concerned, the disputed provision of the resolution does not
violate anybody's rights or interests but it merely creates a
possibility to regulate a dispute in the fastest way possible.
1.5. Item 2 of the Procedure of Selling and Lease as
approved by the disputed Government resolution establishes that
while transferring state land, the county governor or, upon his
authorisation, the head of the county governor's administration
service for organisation of land exploitation and geodesy shall
represent the State. In the opinion of the petitioner, this
contradicts Article 77 of the Constitution whereby only the
President of the Republic shall represent the State.
The representative of the party concerned explained that
the Constitution does not contain the word "only", meanwhile
representation is a constituent part of disposition of state
property. According to Article 24 of the Law on Land, county
governors shall be entitled to dispose of state land plots.
When implementing this function, they have the right to
represent the State. Therefore, disputed Item 2 of the
Procedure of Selling and Lease is in conformity with law.
1.6. As regards Items 7.1.9 and 8.1.19 of the Procedure of
Selling and Lease as approved by the disputed Government
resolution which provide that state land plots for
non-agriculture activities shall be sold or leased by
non-auction procedure without prior conditions also in case the
Government should adopt a special decision, the representative
of the party concerned explained that the Government was
entitled to establish such a procedure following Article 99 of
the Civil Code.
1.7. The representative of the party concerned alleges
that the documents (land plot sketches) are at local
governments' command and the said documents are necessary while
selling the plots, therefore the provisions of the Regulations
of Selling and Lease as approved by the disputed resolution
whereby the mayors are proposed to submit these documents in
corresponding cases are adopted following item 5, Part 1 of
Article 18 of the Law on Local Self-Government.
Taking account of the mentioned above, the representative
of the party concerned requests to recognise that the Republic
of Lithuania Government 17 July 1995 Resolution No. 987 "On
selling and lease of state land plots for non-agriculture
activities" is in compliance with the Constitution.
2.1. S. Naujalis, a deputy director of the Department of
the Territorial Planning of the Ministry of Construction and
Urban Planning, a representative of the party concerned,
explained that the provision of Item 3.4 of the disputed
Government resolution means that the county governor decides
disagreements between natural or legal persons and the mayor
(board) concerning the conformity of the approved detailed plan
while selling or leasing land plots but the said resolution
does not mean that decisions adopted by local governments shall
be repealed.
Item 3, Part 2 of Article 30 of the Law on Territorial
Planning establishes that the county governor shall render
state supervision of general and detailed territorial planning
of local governments' territories while item 5 of Article 8 of
the Law on the Governing of the County provides that the county
governor shall establish conditions for the preparation of
territorial planning documents for local governments. If laws
commission the county governor to establish conditions
regarding preparation of a detailed plan for local governments
and to render state supervision of territorial planning of
local governments' territories, then, in the opinion of the
representative of the party concerned, no one else may settle
disagreements concerning the conformity of a detailed plan.
According to the Law on the Territorial Planning, the person
who prepares the plan, in this case, the local government, may
not render supervision of territorial planning.
2.2. The representative of the party concerned is of the
opinion that the provision of Item 2 of the Procedure of
Selling and Lease as approved by Item 1 of the disputed
Government resolution that the State shall be represented by a
respective county governor is not a new legal norm but taken
from Part 2 of Article 24 of the Law on Land wherein it is
established that 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.
2.3. Items 14 and 21 of the Regulations of Selling and
Lease, as well as Item 6 of the Procedure of Selling and Lease,
provide that the mayor shall transfer the size of the sold land
plots and other data on the grounds of detailed plans to the
district agriculture board or the town service for land
exploitation and geodesy. According to the Law of Local
Self-Government, the preparation of such plans shall be
organised by local governments, therefore, in the opinion of
the representative of the party concerned, the mayor is
responsible for the accuracy of these data. After that the plan
of the sold land plot and its geodetic survey are prepared from
the means of persons concerned following the 30 April 1992
Government Resolution No. 316. The mayors are neither
responsible for, nor do they take part in the preparation of
plans of the sold land plots and their geodetic survey.
Therefore the representative of the party concerned alleges
that the statement of the petitioner that the mayors have no
physical possibilities to fulfil the functions commissioned to
them by Items 14 and 21 of the Regulations of Selling and Lease
is not a grounded one. The mayors shall submit material with
territorial plans the preparation of which is organised by
councils of architects to the county governor.
The representatives of the party concerned, in essence,
reiterated the said statements and arguments in the court
hearing.
The Constitutional Court
holds that:
Article 119 of the Constitution establishes that
administrative units provided by law on State territory shall
be entitled to the right of self-government. This right shall
be implemented through local government Councils. Local
governments shall act freely and independently within the
limits of their competence which shall be established by the
Constitution and laws (Article 120 of the Constitution).
When implementing the local self-government reform, the
idea of two-level local governments was abandoned and it was
established that, in higher level administrative units, the
administration shall be organised by the Government (Part 1 of
Article 123 of the Constitution).
The local self-government reform is carried out by
degrees: on 7 July 1994 the Law on Local Self-Government was
passed, and, correspondingly, on 17 July of the same year the
Law on the Territorial Administrative Units of the Republic of
Lithuania and their Boundaries, 15 December of the same year
the Law on the Governing of the County, 12 December 1995 Law on
Territorial Planning, etc. were adopted.
According Part 1 of Article 1 of the Law on Local
Self-Government, local self-government "denotes the right and
actual power of the institutions of a local government which is
elected by the residents of an administrative unit of the
territory of the Republic of Lithuania, to freely and
independently on their own responsibility regulate and manage
public affairs and meet the needs of local residents according
to the Constitution and laws of the Republic of Lithuania".
This legal norm particularises the constitutional
principle of local governments' independence and realises in
practice the constitutional provision that only the legislator
may regulate the competence of local governments. Local
self-government is implemented through a state territorial
administrative unit (territory of a local government). The
territory of a local government is a specific territorial
entity which has the self-government right guaranteed by the
Government and which acts independently within the competence
limits that are established by the Constitution and laws. The
executive power has only limited powers with regard to local
governments and these powers are established by the
Constitution and laws in attempt to ensure effective
implementation of state administration.
Upon the adoption of the Law on the Territorial
Administrative Units of the Republic of Lithuania and their
Boundaries, the territory of the Republic of Lithuania was
divided into administrative units - counties and territories of
local governments. According to Part 1 of Article 2 of this
law, "the territory of a local government is a territorial
administrative unit of the Republic of Lithuania, which is
governed by institutions of local self-government, elected by
the local community pursuant to the Law on Local
Self-Government of the Republic of Lithuania and other laws".
Thus the territory of a local government is treated as a
decentralised, i.e., as a comparatively independent system of
administration. Part 2 of the said law prescribes that "the
county is the higher territorial unit of the Republic of
Lithuania, the governing of which shall be organised by the
Government of the Republic of Lithuania pursuant to the Law on
the Governing of the County and other laws". Thus county
administration is a constituent part of state administration.
The Government organises county administration through the
county governor, ministries and other Government institutions.
Consequently, functions of centralised state administration are
implemented through counties.
The purpose of dividing State territory into
administrative units is to bring into being necessary
preconditions to best organise administration, to better serve
people and meet their administrative needs. In this respect,
counties and municipalities are, not taking account of the
mentioned differences, united by common aims. This conditions
the necessity of their co-operation, as well as the necessity
to co-ordinate centralised state administration with
decentralisation.
While discharging functions of centralised administration,
the Government implements laws and resolutions of the Seimas
concerning the implementation of laws pursuant to item 2 of
Article 94 of the Constitution. Part 1 of Article 6 of the Law
on Land establishes that the right of possession of State land
shall be vested in local governments by the decision of the
Government, while Part 2 of the said article obligates the
Government to establish common procedure of land use, lease or
its transfer into use to legal and natural persons. The
Government, when implementing this commission, adopted its 17
July 1995 Resolution No. 987 "On selling and lease of state
land plots for non-agriculture activities".
1. On the compliance of Item 1 of the Republic of
Lithuania Government 17 July 1995 Resolution No. 987 "On
selling and lease of state land plots for non-agriculture
activities" with Part 2 of Article 128 of the Constitution, and
Item 2 of "The procedure of selling and lease of state land
plots for non-agriculture activities" as approved by this
resolution with Part 2 of Article 77 of the Constitution,
Article 99 of the Civil Code, as well as on the compliance of
Items 7.1.9 and 8.1.19 of this resolution with Part 4 of
Article 46 of the Constitution.
1.1. The Government approved "The procedure of selling and
lease of state land plots for non-agriculture activities" by
Item 1 of the disputed resolution. In the opinion of the
petitioner, the provision that the Government establishes as to
what conditions and procedure the form of property shall be
changed from state (public) into private one contradicts Part 2
of Article 128 of the Constitution which establishes that
"procedures concerning the management, utilisation, and
disposal of State property shall be established by law".
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." This provision is to be understood that the
Procedure of Selling and Lease approved by the disputed
Government resolution may never contradict laws, as well as
legal provisions and principles concerning land selling and
lease formulated in these laws.
In this light the said resolution adopted by the
Government, as well as the Procedure of Selling and Lease
approved by this resolution, must be assessed.
1.2. Items 1.1 - 1.1.2 of the Procedure of Selling and
Lease provide for subjects that may acquire state land plots
for non-agriculture activities by the right of ownership. These
subjects are provided for by Article 47 of the Constitution and
Article 3 of the Law on Land. Items 1.2 - 1.2.2 of the
Procedure of Selling and Lease establish subjects that may take
this land on lease. These subjects are provided for by Articles
1 and 7 of the Law on the Leasing of Land, the Law "On the
Procedure of Selling and Lease of Land Plots for Diplomatic and
Consular Offices of Foreign Countries", as well as other laws.
Thus the aforesaid items of the Procedure of Selling and Lease,
in essence, merely repeat the subjects of land relations
provided for by laws.
1.3. Item 2 of the Procedure of Selling and Lease
establishes that "while selling or otherwise transferring state
land for non-agriculture activities, the respective county
governor or, upon 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 respective
county governor [...] shall represent the State" contradicts
Part 2 of Article 77 of the Constitution wherein it is
established that the President of the Republic shall represent
the State of Lithuania.
As regards this issue, the Constitutional Court already
stated its opinion in its 25 September 1996 ruling where it
judged the conformity of certain norms of the Law on Land with
the Constitution and held that this norm of the law is in
compliance with the Constitution, thus Item 2 of the Procedure
of Selling and Lease is in compliance with Part 2 of Article 77
of the Constitution, too.
Moreover, in the opinion of the petitioner, Item 2 of the
Procedure of Selling and Lease contradicts Article 99 of the
Civil Code wherein it is established that the possessions of
the State and local governments shall be managed, utilised and
disposed of by respective 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.
In the case at issue, the powers of the county governor to
represent the state while making the contracts of selling,
lease and use of state land plots are established in the Law on
Land, the Law on the Governing of the County and the Procedure
of Selling and Lease approved by the disputed Government
resolution which particularises these laws. Furthermore, it
must be noted that local governments are not land owners as
yet, therefore they may not act as representatives in land
property relations in the sense of Article 99 of the Civil
Code.
Taking account of these motives, a conclusion should be
drawn that Item 2 of the Procedure of Selling and Lease as
approved by the disputed Government resolution is in compliance
with Part 2 of Article 77 of the Constitution and Article 99 of
the civil Code.
1.4. While assessing the content of other items of the
Procedure of Selling and Lease, the Constitutional Court notes
that the powers of the county governor and the mayor of the
territory of a local government in the sphere of state land
plot leasing are particularised in Item 3. This item repeats
and specifies legal norms which were consolidated by Article 6
of the Law on Land, as well as Articles 5 and 9 of the Law on
the Leasing of Land.
Items 4 and 5 of the Procedure of Selling and Lease
establish the size of land plots which are allotted for
construction of private houses, as well as the size of garden
plots of the members of gardeners' societies. These items
virtually particularise the provisions formulated by Article 9
of the Law on Land Reform.
1.5. Items 7 and 8 of the Procedure of Selling and Lease
as approved by the disputed Government resolution establish
cases of selling and lease of state land plots by non-auction
procedure for non-agriculture activities.
It should be noted that the legislator has not define in
particular as to what cases state land shall be sold or leased
by non-auction procedure, however, major provisions of the
procedure of selling and lease of state land plots by auction
and non-auction procedure are phrased in the Law on Land
Reform, the Law on Land, and the Law on the Leasing of Land.
According to Part 1 of Article 6 of the Law on the Leasing of
Land, as a rule, state land shall be leased by auction in
accordance with the procedure established by the Government,
however, in certain cases, it may be leased by non-auction
procedure. This is provided for by Part 2 of Article 6 of the
Law on the Leasing of Land wherein it is stipulated: "Land
shall be leased by auction provided that it is not built over
with structures owned by the prospective lessee or is not built
over with structures which are owned by other persons and which
are not leased with the land, and that the land is not planned
to be assigned, according to the territorial planning
documents, to the land tenure of the prospective tenant." It
should be noted that the Law on Land Reform commissions the
Government with establishing the procedure of selling of land.
Item 6 of Article 8 of this Law consolidates that "in rural
areas for non-agriculture activities, and in towns in cases,
land shall be sold on the grounds of the procedure established
by the Government of the Republic of Lithuania".
Thus, in the aforementioned items, the Government merely
specified the fundamentals of selling and lease of state land
plots by non-auction procedure for non-agriculture activities.
Therefore the cases of selling state land by non-auction
procedure as established by Items 7.1.1 - 7.1.8 and those of
leasing state land plots by non-auction procedure as
established by Items 8.1.1 - 8.1.18 of the Procedure of Selling
and Lease are, in essence, with the norms of various laws which
regulate land relations and with actual circumstances which
determine such a (non-auction) procedure of lease and selling
of state land. Providing the said land plots were sold by
auction, the rights of land users and possessors would
essentially be violated.
1.6. Items 7.1.9 and 8.1.19 of the Procedure of Selling
and Lease are distinguished by their legal content. They
establish that the Government may sell or lease state land by
non-auction procedure by its special decision. Although it is
established in item 5 of 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", i.e., it performs the state property (in
the case under investigation - state land) owner's functions,
however, it may not by its acts create new norms which are not
based on provisions of law. It is only the legislator that may
establish the manner and conditions of disposing of state
property (state land) as Part 2 of Article 128 of the
Constitution stipulates that "procedures concerning the
management, utilisation, and disposal of State property shall
be established by law". Law does not establish any such right
of the Government to sell or lease land. Therefore a conclusion
is to be drawn that the Government by granting itself such a
right without any legal grounds violated the norms consolidated
in Part 2 of Article 128 of the Constitution.
It should be noted that the Government right provided for
by Items 7.1.9 and 8.1.19 of the Procedure of Selling and Lease
to sell or lease land for non-agriculture purposes by
non-auction procedure without any prior conditions may create
legal preconditions to grant exclusive rights for individual
subjects to acquire land plots. Thus, if compared with other
claimants to acquisition of land plots, individual subjects may
be placed at advantageous situation. Therefore a conclusion
should be drawn that such an ambiguity of the said items of the
Procedure of Selling and Lease which allows to sell or lease
state land for non-agriculture activities by non-auction
procedure "by a special decision of the Government", i.e., by
not binding with any prior conditions, does not agree with the
principle of fair competition which is consolidated in Part 4
of Article 46 of the Constitution.
2. On the compliance of Item 2 of the Republic of
Lithuania Government 17 July 1995 Resolution No. 987 "On
selling and lease of state land plots for non-agriculture
activities" with Articles 119 and 120 of the Constitution, as
well as with items 1 and 3 of Article 9 of the Law on the
Governing of the County.
The Government decided by Item 2 of the disputed
resolution:
"To grant the right to possess state land to executive
institutions of local self-government:
2.1. in the territories which are within administrative
boundaries approved by the established procedure of town local
governments, as well as in the territories which are attributed
to these towns by the decisions of the Government of the
Republic of Lithuania;
2.2. in the territories which are within administrative
boundaries approved by the established procedure of towns as
residential areas, as well as in the territories which are
attributed to these towns by the decisions of the Government of
the Republic of Lithuania".
According to the Law on the Territorial Administrative
Units of the Republic of Lithuania and their Boundaries,
territories of local governments shall have established
administrative boundaries. Article 7 of this law stipulates
that "the territories of local governments shall be established
and abolished, as well as their boundaries and centres shall be
set and changed by the Seimas of the Republic of Lithuania on
the proposal of the Government of the Republic of Lithuania,
taking into consideration the proposals of local governments".
Item 5 of Article 21 of the Law on the Government
establishes 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 state
property (in the case under investigation - state land) owner's
functions. The owner or, upon his authorisation, other persons
may transfer property to other persons.
According to the Law on Local Self-Government, the
competence of local self-government institutions in the sphere
of legal relations in land possession is not the main
(independent) one but merely that delegated by the State
(Articles 14 and 16). The purpose of land, if compared with
other objects of immovable property, conditions special legal
regulation of land relations, too. The State delegates the
right to possess state land to local self-government
institutions and commissions the Government to make it official
by adopting its decision. Thus the Government as an institution
which implements the functions of the state property owner
possesses powers to grant the right to possess state property
also to other subjects pursuant to the procedure provided for
by the Constitution and laws.
The Government did so by passing the said resolution which
is disputed by the petitioner and thereby granting the state
land possession right to local self-government institutions.
Thus the said Government resolution is based on the norms of
the Law on Land therefore it is impossible to assert that
thereby Articles 119 and 120 of the Constitution which
consolidate principles of organisation and legal regulation, as
well as those of independence for local self-government
institution activities, were violated.
This commission of the legislator to grant the right to
possess state land to local self-government institutions does
not provide with the grounds to maintain that thereby the
content of the right of local self-government institutions to
possess land is established. This was noted in the said 25
September 1996 ruling of the Constitutional Court. 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 did not delegate the Government
the right to define the content of the right granted to local
governments to possess state land but merely commissioned it
with adopting a respective administration act whereby the right
to possess state land were transferred to local governments. It
should be noted that only then will local governments gain the
right of property to land 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 of the Republic of
Lithuania (hereinafter in the ruling referred to as the
Constitutional Law) is applied.
The allegation of the petitioner that the competence of
the county governor in the sphere of management, use and
disposal of state land is limited to only fulfilment of land
reform as established in the Law on the Governing of the County
is not a grounded one. The county governor also fulfils other
powers provided for by laws. For instance, according to Article
24 of the Law on Land, the county governor shall sell or
transfer otherwise state land into private ownership, make
contracts of sale and purchase as well as of lease and use of
land plots. According to Part 5 of Article 9 of the Law on the
Leasing of Land, the county governor on the proposal by the
possessor of state land shall lease or grant into use the land
to natural and legal persons for a term of more than 3 years.
Taking into consideration all the motives set forth, a
conclusion is to be drawn that Item 2 of the disputed
Government resolution is in compliance with Articles 119 and
120 of the Constitution, as well as items 1 and 3 of Article 9
of the Law on the Governing of the County.
3. On the compliance of Item 3.1 of the Republic of
Lithuania Government 17 July 1995 Resolution No. 987 "On
selling and lease of state land plots for non-agriculture
activities" with item 1 of Article 9 of the Law on the
Governing of the County, as well as Articles 97 and 98 of the
Civil Code.
3.1. It is established in Item 3.1 of the Government
resolution disputed by the petitioner that "the county governor
may sell or lease new plots of state land by non-auction
procedure in rural areas as well as the territories indicated
in Items 2.1 and 2.2 of this resolution", i.e., the county
governor is granted the right to manage state free land which
local governments are commissioned to possess by Items 2.1 and
2.2 of this resolution. This, in the opinion of the petitioner,
contradicts item 1 of Article 9 of the Law on the Governing of
the County wherein it is established 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".
The Government, while phrasing Item 3.1, used the legal
notion "new plots of state land" which is not identical with
the notion of state free land. It is possible to conceive from
item 1, Part 1 of Article 49 of the Law on Land that new state
land plots are new private and state land plots and land
holdings formed in the process of land-use planning. While
according to Part 1 of Article 45 of the Law on Land, state
free land is the land which is not allotted for the use by
natural and legal persons, is not leased or transferred into
private ownership. Part 1 of Article 2 of the Law on Land
explains: "'Land plot' means a portion of territory having
fixed boundaries and the proper purpose for which the land is
used".
Part 2 of Article 45 of the Law on Land consolidates: "The
stock of the state free land shall be operated by the county
governor with the exception of land which is transferred into
possession by local governments according to the procedure
established by this law and the Government of the Republic of
Lithuania." It is similarly provided for by item 1 of Article 9
of the Law on the Governing of the County wherein it is
stipulated that the county governor shall "manage state free
land stock, with the exception of land transferred into the
possession of self-government institutions".
The essence of land management is defined in Part 3 of
Article 45 of the Law on Land wherein it is established that
"upon the determination of its purposive use of its particular
plots and upon the completion of necessary works of territorial
optimisation, management and soil improvement, the state free
land stock shall be sold, allotted for use, or leased". It is
obvious from the content of the norm of Part 2 of Article 35 of
the Law on Land that land management is performed according to
land-use plans prepared and approved by the county governor. On
the grounds of these plans the boundaries of the existing land
holdings shall be revised; new land holdings shall be formed;
farmsteads and production facilities shall be built; roads
shall be laid; ponds shall be made; forest shall be planted;
forests, marshes and shrubbery shall be transformed into
agricultural land. Therefore the management of state land must
not be linked with the disposal of this land.
In its turn, the Government as an institution which
performs the functions of the state land owner is entitled to
establish the price of the sold land and to allocate the
acquired means in certain proportionate expression to purposive
funds.
Taking account of the motives set forth that the notions
"management" and "disposal of" are not identical, a conclusion
is to be drawn that Item 3.1 of the Government resolution is in
compliance with item 1, Article 9 of the Law on the Governing
of the County.
3.2. In the opinion of the petitioner, Item 3.1
contradicts Articles 97 and 98 of the Civil Code wherein it is
established that the object of public property law in the
Republic of Lithuania shall be land along with other property
whereas the subjects of public property law in the Republic of
Lithuania shall be the State and local governments. Thus the
petitioner is of the opinion that the Civil Code provides for
two independent subjects of public property law that
independently exercise the right granted them by laws to manage
public property.
Until the application of the Constitutional Law, local
governments are not land owners yet. It means that that the
norms of civil law regulating property relations in general and
protecting the rights of subjects of property relations may not
be applied to protection of not existing even though potential
or attempted subjective rights of local governments to land
property.
Thus a conclusion should be made that Item 3.1 of the
disputed Government resolution is in compliance with item 1,
Article 9 of the Law on the Governing of the County, as well as
Articles 97 and 98 of the Civil Code.
4. On the compliance of Item 3.4 of the Republic of
Lithuania Government 17 July 1995 Resolution No. 987 "On
selling and lease of state land plots for non-agriculture
activities" with Part 1 of Article 14, and Article 18 of the
Law on the Governing of the County.
4.1. Item 3.4 of the Government resolution establishes
that "the county governor shall decide disagreements between
legal or natural persons and the mayor (board) when
establishing the size, boundaries, purpose, limitations and
terms, conformity of the approved detailed plan of the sold
(transferred) or leased land plot". The petitioner alleges that
such a provision groundlessly broadens the regulation sphere of
the Law on the Governing of the County because the said law
does not provide that the county governor shall be entitled to
suspend, amend, or repeal decisions adopted by local
governments.
It should be noted that Item 3.4 establishes the procedure
of decision of disagreements which arise when establishing the
size, boundaries, purpose, limitations and terms (servitude),
conformity of the approved detailed plan of the sold or leased
land plot as well as the subjects but not, as the petitioner
alleges, the procedure of suspension or amendment of decisions
adopted by self-government institutions.
The powers of the county governor in the sphere of
territorial planning are defined by Article 8 of the Law on the
Governing of the County. It provides that the county governor
shall, in addition to all the other functions indicated
therein, establish conditions for the preparation of
territorial planning documents for territories of local
governments and co-ordinate them and, in the prescribed manner,
supervise territorial planning.
The competence of the county governor in the sphere of
territorial planning as defined in the Law on the Governing of
the County are not final. Part 2 of Article 11 of the said law
establishes that the county governor shall also exercise other
powers established by the laws of the Republic of Lithuania and
Government resolutions. Such powers in the sphere of
territorial planning are particularised in the Law on
Territorial Planning. This law establishes the powers of the
county governor in the sphere of planning territories of
various levels (item 2, Part 1 of Article 4; Part 3 of the said
article); it specifies his functions in the sphere of
preparing, co-ordinating and approving common plans (Parts 2
and 4 of Article 9); it defines his functions in the sphere of
organisation of assembling and management of data bank of
territorial planning (Part 5 of Article 21). Item 3, Part 2 of
Article 30 of the said law commissions him to render
supervision of common and detailed planning of territories of
local governments as well as that of special planning on the
level of local governments, as well as natural and legal
persons.
The analysis of the content of the aforementioned laws
permits to assert that the powers and functions of the county
governor in the sphere of territorial planning are exhaustively
regulated in laws. The right of the county governor to decide
disagreements provided for by Item 3.4 of the Government
resolution is consolidated in laws while the disputed
Government resolution merely specifies the powers of the county
governor.
Thus, if law commissions the county governor to establish
conditions for the preparation of territorial planning
documents for territories of local governments (item 5 of
Article 8 of the Law on the Governing of the County), as well
as to render supervision of planning of local government
territories, therefore it is he who must decide disagreements
provided for by Item 3.4 of the disputed Government resolution.
This conclusion is grounded on the provision of Part 4 of
Article 39 of the Law on Territorial Planning that the
organiser of the territorial planning document, in this case -
the local government, shall not have a right to render
supervision of territorial planning.
The petitioner also deems that Item 3.4 of the disputed
Government resolution contradicts Part 1 of Article 14 of the
Law of the Governing of the County which provides that the
county governor, when discharging the functions attributed to
him, shall co-operate with the institutions of self-government
and the state. The petitioner, on the grounds of this provision
of the law, alleges that the relations between the county
governor and self-government institutions must be limited to
co-operation.
Article 3 of the Law on Territorial Planning defines the
purpose of territorial planning: the balancing of the territory
of the Republic of Lithuania, the establishing of the
development of residential areas policy, the establishing of
ecological equilibrium, etc. In the light of the case under
investigation, the objective phrased in item 7 of the said
article to co-ordinate the interests of natural and legal
persons and their groups, as well as those of society, local
governments, and the state regarding the conditions of use of
territory and land plots as well as development of activities
in that territory is of importance.
While pursuing the aforementioned objectives, close
co-operation of the subjects who take part in the planning
process is necessary. The Law on Territorial Planning
establishes such forms of co-operation and guarantees. It
provides for the competence and functions of the county
governor, as well as those of local governments, in the sphere
of implementation of common and detailed territorial planning
(Articles 5, 6, 8, 9, 15, and 16), regulates the common
procedure for co-ordination of territorial planning documents
and their submission for approval (Article 23), the procedure
of submission and consideration of planning proposals of
persons who are concerned with territorial planning (Articles
27 and 28). Thus the Law on Territorial Planning creates legal
preconditions for co-operation of institutions of
self-government and the county governor while planning
territories.
The Constitutional Court, when interpreting the content of
Part 1 of Article 14 of the Law on Territorial Planning,
emphasises that co-operation is a universal constitutional
principle. Its implementation creates preconditions for state
institutions and local governments alike, while exercising
powers consolidated in laws, to pursue the common aim - to
ensure effective regulation of the affairs of society and
state. Thus the independent functions of the county governor
and local governments do not deny their co-operation. This
co-operation manifests itself in various spheres, and in this
case it does so when territories are planned.
On the grounds of the motives set forth a conclusion is to
be drawn that Item 3.4 of the Government resolution is in
compliance with Part 1 of Article 14 of the Law on the
Governing of the County.
4.2. The petitioner is of the opinion that the provision
of Item 3.4 of the Government resolution that decisions of the
county governor regarding settling disagreements between legal
or natural persons and the mayor (board) may only be appealed
against in court contradicts Part 3 of Article 18 of the Law on
the Governing of the County which establishes that the
Government shall have the right to repeal the orders and legal
acts of the county governor if they are not in conformity with
the Constitution of the Republic of Lithuania, the laws and
other legal acts passed by the Seimas, decrees of the President
of the Republic and the resolutions of the Government.
Article 1 of the Law on the Governing of the County
establishes that 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, when performing supervision of
the county governor's activities, may repeal the acts adopted
by the county governor if they are not in conformity with the
Constitution, the laws and other aforesaid legal acts. Thus the
norm of Part 3 of Article 18 of the Law on the Governing of the
County indicates causes and grounds under which the Government
may repeal legal acts adopted by the county governor but never
does it regulate, as the petitioner alleges, the procedure of
appeal against decisions of the county governor.
The Law on Territorial Planning provides for the judicial
procedure of settling disagreements which arise in the process
of planning. For instance, Part 8 of Article 20 of the said law
provides that the decision of the supervising institution may
be appealed against in court. As it was mentioned, the county
governor shall render supervision of the planning of the
territories of local governments, consequently his decisions
may be appealed against in court. Thus the Government by
establishing in Item 3.4 of its resolution that decisions of
the county governor may only be appealed against in court
repeated, in essence, the provisions of the Law on Territorial
Planning. Such a procedure to settle disagreements does not
contradict the constitutional principle of the priority and
universality of legal protection.
Taking account of the motives set forth, it should be
concluded that Item 3.4 of the disputed Government resolution
is in compliance with Part 1 of Article 14, and Article 18 of
the Law on the Governing of the County.
5. On the compliance of Items 14, 15, 21, and 22 of "The
regulations of selling and lease by non-auction procedure of
state land plots for non-agriculture activities" as approved by
the Republic of Lithuania Government 17 July 1995 Resolution
No. 987 "On selling and lease of state land plots for
non-agriculture activities" with Part 2 of Article 120 of the
Constitution, as well as Part 3 of Article 14 of the Law on
Local Self-Government.
Item 14 of the Regulations of Selling and Lease as
approved by the disputed Government resolution provides that
the mayor, on his proposal, shall transfer the size of land
plots which are to be sold (the sketch of the land plot
prepared so as it is provided for in Item 6 of the Regulations
of Selling and Lease as approved by said disputed resolution)
to the district agriculture board or the town service for
organisation of land exploitation and geodesy whereas Item 15
of the said resolution provides that "the mayor shall be
entirely responsible for the accuracy and validity of the data
presented". Item 21 of these Regulations of Selling and Lease
also provides that the mayor must submit the district
agriculture board or the town service for organisation of land
exploitation and geodesy the prescribed data characterising a
leased land plot (its size and boundaries which are noted in a
copy of the technical report file of the land plot plan, as it
is required by Item 21.1) while Item 22 indicates that the
mayor shall be entirely responsible for the accuracy and
validity of the data presented.
The petitioner notes that the mayors have no physical
possibilities to fulfil obligations indicated in the said items
as the Government grants them the competence (to submit the
data regarding land plots) by one resolution while by its
another resolution it deprives them with physical and material
possibilities (services for organisation of land exploitation)
to fulfil these obligations.
The Constitutional Court notes that the arguments of the
petitioner whether the mayors "are able" or "are not able" to
discharge their functions provided for by Items 14, 15, 21, and
22 are applied to the possibilities of the mayor to participate
in the process of planning in the material sense which shall
not be assessed and decided by the Constitutional Court but
never are they applied to the issues of normative regulation.
According to Article 30 of the Constitutional Court, the
Constitutional Court shall investigate and decide only legal
issues.
At the same time, the Constitutional Court holds that Part
5 of Article 18 of the Law on Local Self-Government establishes
that the local government board (mayor) shall organise the
drafting of a master plan of the respective territory, as well
as projects and detailed plans concerning its amendments. These
issues established by law belong to the independence competence
of local governments, therefore there are no grounds to assert
that the disputed items of the Regulations of Selling and Lease
contradict Part 2 of Article 120 of the Constitution.
In addition, it should also be noted that, according to
the 29 March 1995 Government Resolution No. 451 "On transfer of
local governments' functions which are not delegated by law to
county governors", in order to prepare the aforementioned
plans, centres of geoinformation systems (architect services)
are left at the command of local governments.
The petitioner alleges that the transfer procedure of the
functions to the county governors as established by aforesaid
Government Resolution No. 451 contradicts Part 3 of Article 14
of the Law on Local Self-Government. In the opinion of the
petitioner, these functions must have been delegated by law.
The Constitutional Court notes that in this case the
transfer of functions to the county governor's competence is
dealt with and not the delegation of functions to local
governments. Therefore there are no grounds to assert that such
a procedure contradicts Part 3 of Article 14 of the Law on
Local Self-Government.
Taking into consideration the motives set forth, a
conclusion is to be drawn that Items 14, 15, 21, and 22 of the
Regulations of Selling and Lease as approved by Item 1 of the
Government resolution are in compliance with Part 2 of Article
120 of the Constitution and Part 3 of Article 14 of the Law on
Local Self-Government.
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:
1. To recognise that Items 7.1.9 and 8.1.19 of "The
procedure of selling and lease of state land plots for
non-agriculture activities" as approved by Item 1 of the
Republic of Lithuania Government 17 July 1995 Resolution No.
987 "On selling and lease of state land plots for
non-agriculture activities" contradict Part 2 of Article 128,
and Part 4 of Article 46 of the Constitution of the Republic of
Lithuania.
2. To recognise that the remaining part of the Republic of
Lithuania Government 17 July 1995 Resolution No. 987 "On
selling and lease of state land plots for non-agriculture
activities" is in compliance with the Constitution of the
Republic of Lithuania, Articles 97, 98, 99 of the Civil Code of
the Republic of Lithuania, as well as items 1 and 3 of Article
9, Part 1 of Article 14, and Article 18 of the Law of the
Republic of Lithuania on the Governing of the County.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.