Lietuviškai
Case No. 1/02
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF GOVERNMENT OF THE REPUBLIC OF
LITHUANIA RESOLUTION NO. 458 "ON THE APPROVAL OF
THE METHODS FOR CALCULATION OF DAMAGE INFLICTED ON
NATURE AS A RESULT OF VIOLATION OF ENVIRONMENTAL
PROTECTION LAWS" OF 8 NOVEMBER 1991 WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA
29 October 2003
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of the Government of the Republic of
Lithuania, the party concerned, who was Živilė Liekytė,
Director of the Legislation and Public Law Department of the
Ministry of Justice of the Republic of Lithuania,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, on 1 October
2003 in its public hearing heard Case No. 1/02 which originated
in a petition of the Vilnius Regional Court, the petitioner,
requesting to investigate as to whether Government of the
Republic of Lithuania Resolution No. 458 "On the Approval of
the Methods For Calculation of Damage Inflicted on Nature as a
Result of Violation of Environmental Protection Laws" of 8
November 1991 was not in conflict with Paragraph 2 of Article
7, Paragraph 2 of Article 95 of the Constitution of the
Republic of Lithuania and Paragraph 1 of Article 8 of the
Republic of Lithuania Law "On the Procedure of Publication and
Coming Into Force of Republic of Lithuania Laws and Other Legal
Acts".
The Constitutional Court
has established:
I
The petitioner, the Vilnius Regional Court, suspended the
investigation of a civil case by its ruling and applied to the
Constitutional Court with a petition requesting to investigate
as to whether Government of the Republic of Lithuania
Resolution No. 458 "On the Approval of the Methods for
Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws" of 8 November 1991
was not in conflict with Paragraph 2 of Article 7, Paragraph 2
of Article 95 of the Constitution of the Republic of Lithuania
and Paragraph 1 of Article 8 of the Republic of Lithuania Law
"On the Procedure of Publication and Coming Into Force of
Republic of Lithuania Laws and Other Legal Acts"
II
The request of the petitioner is based on the following
arguments.
Government Resolution No. 458 "On the Approval of the
Methods for Calculation of Damage Inflicted on Nature as a
Result of Violation of Environmental Protection Laws"
(hereinafter also referred to as the Resolution) was published
in the official gazette Lietuvos Respublikos Aukščiausiosios
Tarybos ir Vyriausybės žinios (1991, No. 33-928), but the
Methods for Calculation of Damage Inflicted on Nature as a
Result of Violation of Environmental Protection Laws
(hereinafter also referred to as the Methods) as approved by
Item 1 of the Resolution was published neither together with
the Resolution, nor later. In the opinion of the petitioner,
the Methods are an inseparable constituent part of the
Resolution.
The petitioner points out that at the time when the
Resolution was adopted the procedure of publication and coming
into force of legal acts was regulated by the Provisional Basic
Law of the Republic of Lithuania, the Law on the Government of
the Republic of Lithuania and some other legal acts which had
been in force before the restoration of the independent State
of Lithuania. The Resolution was published in the official
gazette Lietuvos Respublikos Aukščiausiosios Tarybos ir
Vyriausybės žinios, but the Methods as approved by this
Resolution were not published. In the opinion of the
petitioner, this was in conflict with the then procedure of
publication of legal acts.
The petitioner also points out that on 6 April 1993 the
Republic of Lithuania Law "On the Procedure of Publication and
Coming Into Force of Republic of Lithuania Laws and Other Legal
Acts" (hereinafter also referred to as the Law) was adopted.
Under Paragraph 1 of Article 8 of this law, the resolutions by
the Government which establish legal norms shall come into
force following the day, when signed by the Prime Minister and
the appropriate minister, they shall be published in the
official gazette Valstybės žinios, provided a later date of
their coming into force has not been established by the
resolution itself. The disputed resolution was signed only by
the Prime Minister of the Republic of Lithuania, but not signed
by the appropriate minister.
The petitioner has doubts as to whether the Resolution is
not in conflict with Paragraph 2 of Article 7, Paragraph 2 of
Article 95 of the Constitution, and Paragraph 1 of Article 8 of
the Law.
III
In the course of the preparation of the case for the
Constitutional Court hearing written explanations were received
from the representative of the party concerned, the Government,
who was Ž. Liekytė, Director of the Legislation and Public Law
Department of the Ministry of Justice.
The representative of the party concerned points out that,
according to the procedure of signing, publication and coming
into force of resolutions by the Government, which was valid at
the time the disputed resolution was adopted, Government
resolutions had to be signed by the Prime Minister. Government
resolutions had to be published in the official gazette
Lietuvos Respublikos Aukščiausiosios Tarybos ir Vyriausybės
žinios.
Disputed Government Resolution No. 458 "On the Approval of
the Methods for Calculation of Damage Inflicted on Nature as a
Result of Violation of Environmental Protection Laws" of 8
November 1991 was signed by the Prime Minister and published in
the official gazette Lietuvos Respublikos Aukščiausiosios
Tarybos ir Vyriausybės žinios in No. 33, 1991. The Methods, as
approved by Item 1 of the Resolution, were not published. In
the opinion of Ž. Liekytė, legal acts, which regulated the
procedure of publication of laws and other legal acts at the
time of the adoption of the disputed Government resolution, did
not establish the obligation to publish attachments of
Government resolutions, which somewhat did not constitute a
part of a Government resolution, in the official gazette
Lietuvos Respublikos Aukščiausiosios Tarybos ir Vyriausybės
žinios.
The representative of the party concerned maintains that
the disputed Government resolution was adopted before the
adoption and coming into force of the Constitution and the
Republic of Lithuania Law on the Procedure of Publication and
Coming Into Force of the Laws and Other Legal Acts. Article 2
of the Law "On the Procedure of Entry Into Effect of the
Constitution of the Republic of Lithuania", which was adopted
together with the Constitution, establishes that "laws, other
legal acts or parts thereof which were in effect on the
territory of the Republic of Lithuania prior to the adoption of
the Constitution of the Republic of Lithuania, shall be
effective inasmuch as they are not in conflict with the
Constitution and this Law, and shall remain in effect until
they are either declared null and void or harmonised with the
provisions of the Constitution". In the opinion of Ž. Liekytė,
though laws, other legal acts or parts thereof which were in
effect in the territory of the Republic of Lithuania prior to
the adoption of the Constitution should be effective inasmuch
as they are not in conflict with the Constitution and the said
law, this norm may not be construed as establishing that the
said legal acts are ineffective if they are in conflict with
the Constitution according to the procedure of their adoption,
signing, publication and coming into effect. Therefore, the
procedure as established in Paragraph 2 of Article 7, Paragraph
2 of Article of the Constitution and Paragraph 1 of Article 8
of the Law should not be applied to the Resolution which was
adopted before coming into force of the Constitution and the
Law.
The representative of the party concerned indicates that
the Constitution shall be an integral act (Paragraph 1 of
Article 6 of the Constitution). The provisions of Paragraph 2
of Article 7 and Paragraph 2 of Article 95 of the Constitution
are closely related with the principle of a state under the
rule of law which is consolidated in the Constitution. In the
opinion of Ž. Liekytė, the request of the petitioner has to be
considered also with regard to the fact that the striving for a
state under the rule of law emerged as an imperative from the
very restoration of independence of the Republic of Lithuania
on 11 March 1990, but not from the moment of the adoption of
the Constitution. Thus, the procedure of signing of legal acts
as well as that of publication and coming into effect of the
Resolution, must conform to this objective. A significant
element of the constitutional principle, which guarantees this
objective, that only published legal acts are effective also
means that law may not be non-public. While assessing the
compliance of the Resolution with this principle, the
representative of the party concerned notes that in Item 2 of
the Resolution the Government proposed the Environmental
Protection Department of the Republic of Lithuania to provide
all ministries, services and organisations concerned with these
Methods. In the opinion of Ž. Liekytė, by such norm the
provision of Article 97 of the Provisional Basic Law that the
Government organises the execution of resolutions which it has
adopted used to be implemented. While implementing Item 2 of
the Resolution, in 1992 the Environmental Protection Department
published "Methods for Calculating the Damage Which is
Inflicted on Nature as a Result of Violation of Environmental
Protection Laws" as a separate publication in 3000 copies.
Beside that, in 1991 the Methods were published in the
Environmental Protection Department and Lithuanian Information
Centre bulletin "Environmental Protection in the Republic of
Lithuania" (1991, No. 2) which was published in 5000 copies.
Therefore, in the opinion of the representative of the party
concerned, one can assert that this publishing of the Methods
in the overall edition of 8000 copies may be equalled to its
publication and can be considered to be appropriate means for
the implementation of the principle of publicity of legal acts.
IV
In the course of the preparation of the case for judicial
investigation written explanations were received from A.
Kundrotas, Minister of the Environment of the Republic of
Lithuania, and K. Virketis, Director of the Legal Department of
the Office of the Seimas.
V
At the Constitutional Court hearing the representative of
the party concerned, the Government, who was Ž. Liekytė,
virtually reiterated the arguments set forth in her written
explanations.
The Constitutional Court
holds that:
I
1. The petitioner requests to investigate whether
Government of the Republic of Lithuania Resolution No. 458 "On
the Approval of the Methods for Calculation of Damage Inflicted
on Nature as a Result of Violation of Environmental Protection
Laws" of 8 November 1991 is not in conflict with;
1) Paragraph 2 of Article 7 of the Constitution;
2) Paragraph 2 of Article 95 of the Constitution;
3) Paragraph 1 (wording of 18 May 1999) of Article 8 of
the Law "On the Procedure of Publication and Coming Into Force
of Republic of Lithuania Laws and Other Legal Acts".
2. It is clear from the petition of the petitioner that he
has doubts as to whether the manner of signing and publishing
of the disputed Government resolution is not in conflict with
Paragraph 2 of Article 7, Paragraph 2 of Article 95 of the
Constitution, and Paragraph 1 of Article 8 of the Law "On the
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts".
II
1. While deciding whether Government of the Republic of
Lithuania Resolution No. 458 "On the Approval of the Methods
for Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws" of 8 November 1991
is not in conflict with the Constitution and Paragraph 1
(wording of 18 May 1999) of Article 8 of the Law "On the
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts", one has to ascertain what
institutions of the State of Lithuania and what legal acts
regulate (used to regulate) calculation of damage (loss)
inflicted on nature and how this legal regulation has changed.
2. On 5 April 1990, the Supreme Council adopted the
Republic of Lithuania Law "On the Establishment of State Bodies
Accountable to the Supreme Council of the Republic of
Lithuania", by Item 1 of which it was decided to liquidate the
Republic of Lithuania State Committee for the Environmental
Protection and to establish the Republic of Lithuania
Environmental Protection Department accountable to the Supreme
Council.
On 13 July 1990, the Supreme Council adopted the Law on
the Republic of Lithuania Department for the Environmental
Protection. According to Article 1 of this law, the
Environmental Protection Department used to be a state body for
the regulation of natural resources and control of the
environment protection, accountable before the Supreme Council.
Item 6 of Article 9 of the Law on the Environmental Protection
Department used to provide that the competence of the
Environmental Protection Department includes presentation of
claims and actions concerning compensation of damage for
pollution of the environment and unreasonable use of natural
resources, preparation and approval of methods and rates for
calculation of damage. Under Item 5 of Article 13 of the Law on
the Environment Protection Department, the Director General of
the Environmental Protection Department used to have the right
to issue orders, approve instructions, rules, methods, adopt
other decisions within his competence.
3. On 24 September 1991, the Supreme Council adopted the
Resolution "On Economic Sanctions for Emergency Leakage of
Pollution Into Environment, Water Dispersed Pollution,
Overnormative Onetime Exhaust of Pollution Into the Atmosphere,
as well as the Disposal of Pollution in the Place that is not
Designated for the Purpose or Without Permission" whereby it
was decided to commission the Government to approve the Methods
for Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws upon the
presentation of the Environmental Protection Department.
4. On 8 November 1991, the Government adopted Resolution
No. 458 "On the Approval of the Methods for Calculation of
Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws" in which it was established:
"While implementing Republic of Lithuania Supreme Council
Resolution No. I-1823 of 24 September 1991, the Republic of
Lithuania Government decides:
1. To approve the Methods for Calculation of Damage
Inflicted on Nature as a Result of Violation of Environmental
Protection Laws as prepared by the Republic of Lithuania
Environmental Protection Department.
2. To propose to the Republic of Lithuania Environmental
Protection Department to provide all ministries, institutions
and organisation concerned with the Methods and to prepare and
approve the Procedure of Application of the Methods for
Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws until 30 December
1991.
3. To establish that:
3.1. the Methods for Calculation of Damage Inflicted on
Nature as a Result of Violation of Environmental Protection
Laws shall come into effect as of 15 November 1991;
3.2. the amount of the damage inflicted on nature may be
recalculated and supplemented if types of pollution, which are
not prescribed in the Methods, are established, new
contaminants appear, or ecological situation of the Republic
changes;
3.3. damage inflicted on nature shall be exacted from
natural and legal persons of the Republic and foreign countries
that have violated the laws on environmental protection
according to the following procedure: natural persons and
non-profit organisations shall compensate the damage from their
funds, while other enterprises, establishments and
organisations--from the profit which remains to them;
3.4. the exacted funds shall be paid to the State Nature
Protection Fund."
5. On 21 January 1992, the Supreme Council adopted the
Republic of Lithuania Law on the Environmental Protection. Item
3 of Paragraph 2 of Article 6 of this law established that the
Environmental Protection Department is a state institution for
regulation of the utilisation of natural resources and control
of the environmental protection which is accountable before the
Supreme Council and which prepares draft laws on environmental
protection and, according to its competence, adopts normative
acts on the issues of environmental protection and utilisation
of natural resources, co-ordinates normative acts of the
Government which are related with environmental protection and
utilisation of natural resources. Paragraph 2 of Article 32 of
the Law on Environmental Protection used to establish that the
Government of the Republic of Lithuania, upon the agreement of
the Environmental Protection Department, shall establish the
methods and rates to compensate for damages inflicted on the
environment.
6. On 19 May 1994, the Seimas adopted the Law on the
Government of the Republic of Lithuania. Paragraph 1 of Article
27 of the same Law provided for a new ministry--Ministry of
Environmental Protection.
On 31 May 1994, the Seimas adopted the Law "On the
Implementation of the Law on the Government of the Republic of
Lithuania", by Article 1 whereof the Environmental Protection
Department was liquidated as of 15 June 1994, while under
Article 2 the Ministry of Environmental Protection was
established at the same day. Article 4 of the said law
established that the Government of the Republic of Lithuania
must approve the regulations of the Ministry of Environmental
Protection of the Republic of Lithuania until 1 September 1994.
Until the regulations are approved, but not later than 1
September 1994, the Ministry of Environmental Protection of the
Republic of Lithuania shall perform the functions which have
been assigned to the Environmental Protection Department
according to the Law on Environmental Protection of the
Republic of Lithuania, and shall have the powers assigned to
this department (with the exception of the powers specified in
Articles 5 and 6 and Items 4 and 11 of Article 9 of the Law on
Environmental Protection).
7. On 9 September 1994, the Government adopted Resolution
No. 842 "On the Approval of the Regulations of the Ministry of
Environmental Protection of the Republic of Lithuania" whereby
the Regulations of the Republic of Lithuania Ministry of
Environmental Protection were approved. Item 7.4 of these
regulation established that the Ministry of Environmental
Protection, while fulfilling the tasks which have been assigned
to it, has the right to prepare and approve the methods,
instructions and rates for calculation of damage and
compensational means, as well as to control the payment of
taxes for natural resources and environmental pollution.
8. Article 6 of the Law on the Environmental Protection
was amended by Article 4 of the Republic of Lithuania Law on
the Amendment and Supplement of the Law on the Environmental
Protection which was adopted by the Seimas on 28 May 1996. Item
11 of Paragraph 5 of Article 6 (wording of 28 May 1996) of the
Law on the Environmental Protection provided that the Ministry
of Environmental Protection, while executing the management of
environmental protection and state regulation of natural
resources, shall prepare and approve the methods for
calculation of damage caused to the environment.
Article 24 of the Law on Amendment and Supplement of the
Law on the Environmental Protection of 28 May 1996 recognised
Paragraph 2 of Article 32 of the Law on the Environmental
Protection as no longer valid.
9. On 3 September 1997, the Government adopted Resolution
No. 947 "On the Approval of the Regulations of the Ministry of
Environmental Protection of the Republic of Lithuania" by Item
1 of which the Regulations of the Ministry of Environmental
Protection of the Republic of Lithuania were approved, while by
Item 2 whereof Government Resolution No. 842 "On the Approval
of the Regulations of the Ministry of Environmental Protection
of the Republic of Lithuania" of 9 September 1994 was
recognised as no longer valid. In Item 6.3 of the Regulations
of the Ministry of Environmental Protection it used to be
established, inter alia, that the Ministry of Environmental
Protection, while fulfilling the tasks assigned to it, has the
right to prepare and approve the methods of the calculation of
damage and compensational means.
10. On 28 April 1998, the Seimas adopted the Law on the
Amendment of the Law on the Republic of Lithuania Government,
by Item 1 of which the Law on the Government was set forth in a
new wording. According to the Law on the Government of a new
wording, the Ministry of Environmental Protection and the
Ministry of Construction and Urban Planning ceased to exist and
a new Ministry of Environment was provided for.
11. On 22 September 1998, the Government adopted
Resolution No. 1138 "On the Approval of the Regulations of the
Ministry of Environment of the Republic of Lithuania", by Item
1 of which the Regulations of the Ministry of Environment of
the Republic of Lithuania were approved. Item 6.16 of these
regulations established that the Ministry of Environment, while
fulfilling the tasks assigned to it, prepares and approves the
methods of calculation of the damage inflicted on the
environment.
On 20 February 2002, the Government adopted Resolution No.
260 "On the Partial Amendment of Republic of Lithuania
Government Resolution No. 1138 'On the Approval of the
Regulations of the Ministry of Environment of the Republic of
Lithuania of 22 September 1998'" which partially amended and
set forth the Regulations of the Ministry of Environment in a
new wording. The legal regulation which had been established by
Item 6.16 of the Regulations of the Ministry of Environment
(wording of 22 September 1998) was not amended and provisions
of the same content were set forth in Item 6.15 of the
Regulations of the Ministry of Environment of a new wording.
12. On 7 September 2000, the Government adopted Resolution
No. 1065 "On Recognition of Republic of Lithuania Government
Resolution No. 458 'On the Approval of the Methods for
Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws' of 8 November 1991
as Null and Void" (Official gazette Valstybės žinios, 2000, No.
77-2338), which established the following:
"1. To commission the Ministry of Environment to prepare
and, upon co-ordination with the Ministry of Agriculture,
Ministry of National Defence, Ministry of Social Security and
Labour and Ministry of Justice, approve the Methods for
Calculation of the Amounts of Compensation of Damage Inflicted
on the Environment.
2. To recognise Republic of Lithuania Government
Resolution No. 458 'On the Approval of the Methods for
Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws' of 2 November 1991
as null and void from coming into effect of the methods
specified in Item 1."
13. It has been mentioned that Item 11 of Paragraph 5 of
Article 6 (wording of 28 May 1996) of the Law on Environmental
Protection established that the Ministry of Environmental
Protection, while executing the management of environmental
protection and state regulation of natural resources, shall
prepare and approve the methods for calculation of damage
inflicted on the environment.
On 9 September 2002, the Minister of Environment issued
Order No. 471 "On the Approval of the Methods for Calculation
of the Amounts of Damage inflicted on the Environment", by Item
1 whereof approved the Methods for Calculation of the Amounts
of Damage Inflicted on the Environment. The order was published
in the official gazette Valstybės žinios (No. 93-4026) on 25
September 2002.
Paragraph 1 of Article 10 (wording of 18 May 1999) of the
Law "On the Procedure of Publication and Coming Into Force of
Republic of Lithuania Laws and Other Legal Acts" inter alia
established that orders of ministers shall come into force
following the day, when they shall be published in the official
gazette Valstybės žinios, provided a later date of their coming
into force has not been established by the order itself.
The Minister of Environment Order No. 471 "On the Approval
of the Methods for Calculation of the Amounts of Damage
Inflicted on the Environment" of 9 September 2002 did not
establish a later date of its coming into force, thus the said
order of the Minister of Environment came into force on 26
September 2002.
Item 2 of Government Resolution No. 1065 "On the
Recognition of Republic of Lithuania Government Resolution No.
458 'On the Approval of the Methods for Calculation of Damage
Inflicted on Nature as a Result of Violation of Environmental
Protection Laws' of 8 November 1991 as Null and Void" of 7
September 2000 established the legal regulation which means
that the disputed in the present case Government Resolution No.
458 "On the Approval of the Methods for Calculation of Damage
Inflicted on Nature as a Result of Violation of Environmental
Protection Laws" of 8 November 1991 became null and void from
the day that the Minister of Environment order which approved
the Methods for Calculation of the Amounts of Damage Inflicted
on the Environment came into force.
14. Under Paragraph 1 of Article 95 of the Constitution,
the Government of the Republic of Lithuania shall resolve the
affairs of state administration at its sittings by resolutions
adopted by majority vote of all members of the Government.
14.1. The Government, having the powers to adopt
resolutions under the Constitution, also has the powers to
establish when the resolution adopted by it comes into force.
According to the Constitution, the Government also has the
powers to establish when resolutions adopted by it become no
longer valid. The Government can establish this by adopting a
resolution. Thus, according to the Constitution, only the
Government itself has the right to decide when Government
resolutions come into force as well as when Government
resolutions become no longer valid. While establishing when
resolution adopted by it come into force or become no longer
valid, the Government must pay heed to the Constitution and
laws.
14.2. The Constitutional Court has held in its rulings for
more than once that if the Constitution directly establishes
powers of a certain state institution, no state institution can
take over such powers from another institution, or transfer or
waive them, while the other institution cannot take over such
powers. Such powers may not be changed or limited by the law.
Under the Constitution, the Government by its resolutions
may not establish such legal regulation, according to which the
time of entry into force or becoming no longer valid of a
resolution would depend on entry into force of a legal act of
lower power, which is adopted by another subject.
14.3. Item 2 of Government Resolution No. 1065 "On the
Recognition of Republic of Lithuania Government Resolution No.
458 'On the Approval of the Methods for Calculation of Damage
Inflicted on Nature as a Result of Violation of Environmental
Protection Laws' of 8 November 1991 as Null and Void" of 7
September 2000 established the legal regulation, according to
which the time of recognition of Government Resolution No. 458
"On the Approval of the Methods for Calculation of Damage
Inflicted on Nature as a Result of Violation of Environmental
Protection Laws" of 8 November 1991 as null and void depended
on coming into force of a legal act of lower legal power, which
had been issued by the Minister of Environment.
Thus, the Government bound the implementation of its
constitutional powers to establish when Resolution No. 458 "On
the Approval of the Methods for Calculation of Damage Inflicted
on Nature as a Result of Violation of Environmental Protection
Laws" of 8 November 1991 becomes no longer valid by a decision
of another subject and made it dependent on coming into force
of the order of the Minister of Environment which had to
approve the Methods for Calculation of the Amounts of Damage
Inflicted on the Environment.
14.4. It has been mentioned that, under Item 11 of
Paragraph 5 of Article 6 (wording of 28 May 1996) of the Law on
Environmental Protection, the Ministry of Environmental
Protection shall prepare and approve the methods for
calculation of damage inflicted on the environment. Thus, the
competence of the Ministry of Environment to prepare and
approve the methods for calculation of damage inflicted on
nature arises directly from the Law on Environmental
Protection.
Under Article 98 of the Constitution, a Minister shall
head his respective ministry, shall resolve issues ascribed to
the competence of his ministry and shall also discharge other
functions provided for by laws. Therefore, upon coming into
force of the 28 May 1996 Law on the Amendment and Supplement of
the Republic of Lithuania Law on Environmental Protection, no
other state institution, as well as the Government, had the
right to issue the methods for calculation of damage inflicted
on the environment.
14.5. According to Item 2 of Article 94 of the
Constitution, the Government shall execute laws and resolutions
of the Seimas concerning the implementation of laws, as well as
the decrees of the President of the Republic. Under Item 7 of
Article 94 of the Constitution, the Government shall discharge
other duties prescribed to the Government by the Constitution
and other laws.
The Constitutional Court has held in its rulings for more
than once that in cases when a Government resolution containing
norms conflicting with a law is adopted prior to the adoption
of the law, such a Government resolution must be harmonised
with the norms of the subsequently adopted law or it must be
recognised as no longer valid.
The Government, upon recognition of its Resolution No. 458
"On the Approval of the Methods for Calculation of Damage
Inflicted on Nature as a Result of Violation of Environmental
Protection Laws" of 8 November 1991 as no longer valid by Item
2 of its Resolution No. 1065 "On the Recognition of the
Republic of Lithuania Government Resolution No. 458 'On the
Approval of the Methods for Calculation of Damage Inflicted on
Nature as a Result of Violation of Environmental Protection
Laws' of 8 November 1991 as Null and Void" of 7 September 2000,
fulfilled the above indicated requirement of the Constitution.
However, by the legal regulation as established in Item 2 of
the Resolution of 7 September 2002, the Government disregarded
the Constitution in that respect that it did not establish a
concrete time when the resolution of 8 November 1991 becomes no
longer valid, and bound the implementation of its
constitutional powers with the decision of another
subject--made it dependent on the entry into force of an order
of the Minister of Environment which would approve the Methods
for Calculation of the Amounts of Damage Inflicted on the
Environment.
This legal regulation disregards the Constitution.
14.6. The Constitutional Court notes that, taking account
of the request of the petitioner, the matter of investigation
in this case is the way Government Resolution No. 458 "On the
Approval of the Methods for Calculation of Damage Inflicted on
Nature as a Result of Violation of Environmental Protection
Laws" of 8 November 1991 was signed and published. Thus, the
Constitutional Court will not consider the compliance of
Government Resolution No. 1065 "On the Recognition of Republic
of Lithuania Government Resolution No. 458 'On the Approval of
the Methods for Calculation of Damage Inflicted on Nature as a
Result of Violation of Environmental Protection Laws' of 8
November 1991 as Null and Void" of 7 September 2000 with the
Constitution.
III
1. Government Resolution No. 458 "On the Approval of
Methods for Calculation of Damage Inflicted on Nature as a
Result of Violation of Environmental Protection Laws" of 8
November 1991 was adopted before the Constitution went into
effect.
2. While deciding whether the disputed Government
Resolution is not in conflict with the Constitution and
Paragraph 1 (wording of 18 May 1999) of Article 8 of the Law
"On the Procedure of Publication and Coming Into Force of
Republic of Lithuania Laws and Other Legal Acts", one has to
elucidate how the signing, publication and coming into force of
Government resolutions used to be regulated at the time when
the disputed Government resolution was adopted, i.e. before the
entry into effect of the Constitution, as well as later, i.e.
during to whole period the disputed Government resolution was
in effect.
3. Upon restoration of the independent State of Lithuania
on 11 March 1990, the creation of the national legal system was
started. On 11 March 1990, the Supreme Council adopted the
Provisional Basic Law of the Republic of Lithuania. Until 2
November 1992, when the Constitution of the Republic of
Lithuania, which was adopted by the Nation in the referendum on
25 October 1992, came into effect, the national legal system
used to be created and developed on the basis of the
Provisional Basic Law. The creation and development of the
national legal system is a gradual process.
Upon restoration of the independent Sate of Lithuania,
there existed a legal situation where legal acts, which had
been adopted before restoration of an independent State of
Lithuania, were in effect. It needs to be noted in this context
that Article 3 of the Republic of Lithuania Law "On Coming Into
Force of the Republic of Lithuania Provisional Basic Law" of 11
March 1990 established that the laws and other legal acts which
had been in force in Lithuania until then, which were in
compliance with the Provisional Basic Law of the Republic of
Lithuania, shall be valid in the Republic of Lithuania.
Thus, during that period the legal acts which had been
adopted before restoration of the Independent State of
Lithuania and had regulated the procedure of signing,
publication and coming into force of laws, Government
resolutions and other legal acts, were valid to the
corresponding extent.
4. Article 97 of the Provisional Basic Law used to
establish that the Council of Ministers of the Republic of
Lithuania shall adopt resolutions and issue orders, organises
and verifies their execution on the basis of the statutes of
Lithuania and in the course of their execution. Resolutions and
orders of the Council of Ministers must be executed in the
entire territory of Lithuania.
5. On 22 March 1990 the Supreme Council adopted the Law on
the Government of the Republic of Lithuania. Paragraph 1 of
Article 29 of this law used to establish that Government
normative decisions or those important to the economy of the
Republic shall be issued in the form of resolutions, as well as
that Government resolutions shall be published in the official
gazette Lietuvos Respublikos Aukščiausiosios tarybos ir
Vyriausybės žinios and in case of need by means of mass media.
Paragraph 3 of Article 29 of the Law on the Government used to
establish that Government resolutions shall be signed by the
Chairman of the Government (Prime Minister) and the Manager of
the Government Affairs.
6. On 23 October 1990, the Supreme Council adopted the Law
"On the Amendment of Some Articles of the Provisional Basic Law
of the Republic of Lithuania", by Article II of which it was
established:
"The supreme body of administration of the State of
Lithuania shall be further called only the Government of the
Republic of Lithuania.
Therefore the words 'the Council of Ministers' shall be
replaced by 'the Government' in Articles 48, 50, 51, Item 21 of
Paragraph 2 of Article 78, Articles 81, 93, 95, 97, 98 and 99
of the Provisional Basic Law of the Republic of Lithuania."
Article 97 (wording of 23 October 1990) of the Provisional
Basic Law used to establish that the Government shall adopt
resolutions and issue orders, organises and verifies their
execution on the basis of the statutes of Lithuania and in the
course of their execution.
7. On 23 October 1990, the Supreme Council adopted the Law
"On the Amendment of Some Articles of the Republic of Lithuania
Law on the Government", by Article 6 of which Paragraph 3 of
Article 29 of the Law on the Government was set forth in a new
wording. It was established therein that Government resolutions
shall be signed by the Chairman of the Government (the Prime
Minister).
8. The Nation adopted the Constitution of the Republic of
Lithuania in the Referendum of 25 October 1992.
Paragraph 2 of Article 7 of the Constitution provides:
"Only laws which are published shall be valid."
Paragraph 2 of Article 95 of the Constitution establishes:
"Resolutions of the Government shall be signed by the Prime
Minister and the Minister of an appropriate branch."
9. Upon coming into force of the Constitution of the
Republic of Lithuania, previously issued official gazette
Lietuvos Aukščiausiosios Tarybos ir Vyriausybės žinios was
further published under an amended title Lietuvos Respublikos
Seimo ir Vyriausybės žinios.
10. On 6 April 1993, the Seimas adopted the Law "On the
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts". Article 12 of the same
law provided that the official gazette Valstybės žinios shall
be published instead of the official gazette Lietuvos
Republikos Seimo ir Vyriausybės žinios.
Paragraph 3 of Article 2 of the said law established that
"laws and other legal acts specified in this article shall be
officially published in the official gazette Valstybės žinios
by the officials who sign them".
Article 8 of the Law "On the Procedure of Publication and
Coming Into Force of Republic of Lithuania Laws and Other Legal
Acts" provided:
"The decisions by the Government of the Republic of
Lithuania, by which legal norms are established, amended or
recognised as no longer valid, shall come into force following
the day, when signed by the Prime Minister and the appropriate
minister, they shall be published in the official gazette
Valstybės žinios, provided a later coming into force date has
not been established by the decision itself.
The decisions by the Government of the Republic of
Lithuania, by which legal norms are not established, amended or
recognised as no longer valid, also the Prime Minister's
decrees shall come into force on the day of their signing even
though, they have been published in the official gazette
Valstybės žinios, provided the later date of their coming into
force has not been established in the resolutions and orders
themselves."
11. On 18 May 1999, the Seimas adopted the Republic of
Lithuania Law on the Amendment of Articles 2, 3, 8, 9, 10, 15,
16, 17, Supplement by Article 101 and Recognition as Null and
Void of Article 7 of the Law "On the Procedure of Publication
and Coming Into Force of Republic of Lithuania Laws and Other
Legal Acts", by Article 4 of which Article 8 of the Law "On the
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts" (wording of 6 April 1993)
was amended and set forth in a new wording:
"The resolutions of the Republic of Lithuania Government,
by which legal norms are established, amended or recognised as
no longer valid, shall come into force following the day, when
signed by the Prime Minister and the appropriate minister, they
shall be published in the official gazette Valstybės žinios,
provided a later coming into force date has not been
established by the resolutions themselves.
The resolutions of the republic of Lithuania Government,
by which legal norms are not established, amended or recognised
as no longer valid, also the Prime Minister orders, shall come
into force on the day of their signing even though they have
been published in the official gazette Valstybės žinios,
provided a later coming into force date has not been
established by the resolutions and orders themselves."
By Article 7 of the Republic of Lithuania Law on the
Amendment of Articles 2, 3, 8, 9, 10, 15, 16, 17, Supplement by
Article 101 and Recognition as Null and Void of Article 7 of
the Law "On the Procedure of Publication and Coming Into Force
of Republic of Lithuania Laws and Other Legal Acts", the Law
"On the Procedure of Publication and Coming Into Force of
Republic of Lithuania Laws and Other Legal Acts" was
supplemented by Article 101 which provides:
"Within 3 days of their official publication in the
official gazette Valstybės žinios, legal acts specified in
Article 2 of this law must be published on the Internet sites
of the Seimas and the institution which has adopted them.
Within 3 days of their coming into force day, legal acts
specified in Paragraph 1 of Article 3 of this law must be
published on the Internet site of the institution, which has
adopted them.
Legal acts, which contain information which constitute the
State or official secret, shall not be published on the
Internet sites."
12. The Constitutional Court ruling of 29 November 2001
recognised the provision of Article 8 of the Law "On the
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts" (wordings of 6 April 1993
and 18 May 1999) that Government resolutions, by which legal
norms are not established, amended or recognised as no longer
valid, may come into force without their official publication,
to be in conflict with the principle of a state under the rule
of law which is consolidated in the Constitution.
13. On 10 December 2002, the Seimas adopted the Law on the
Amendment of the Republic of Lithuania Law "On the Procedure of
Publication and Coming Into Force of Republic of Lithuania Laws
and Other Legal Acts", by Article 1 of which the Law "On the
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts" was set forth in a new
wording.
Article 9 of the Law "On the Procedure of Publication and
Coming Into Force of Republic of Lithuania Laws and Other Legal
Acts" (wording of 10 December 2002) provides:
"1. The resolutions of the Government shall come into
force following the day, when signed by the Prime Minister and
the appropriate minister, they shall be published in the
official gazette Valstybės žinios, provided a later coming into
force date has not been established by the resolutions
themselves.
2. The Prime Minister orders shall come into force on the
day of their signing, provided a later coming into force day
has not been established by the orders themselves. The Prime
Minister orders which have been published in the official
gazette Valstybės žinios, shall come into force on following
the day of their signing, provided a later coming into force
date has not been established by the orders themselves."
IV
1. It has been mentioned that Paragraph 2 of Article 7 of
the Constitution establishes that only laws which are published
shall be valid, while Paragraph 2 of Article 95 provides that
resolutions of the Government shall be signed by the Prime
Minister and the Minister of an appropriate branch.
2. It has to be noted that the provision of Paragraph 2 of
Article 7 of the Constitution that only laws which are
published shall be valid, and the provision of Paragraph 2 of
Article 95 of the Constitution that resolutions of the
Government shall be signed by the Prime Minister and the
Minister of an appropriate branch, are to be construed while
taking account of the provisions which are consolidated in
other articles, chapters, and other constituent parts of the
Constitution.
3. While construing the content of Paragraph 2 of Article
7 of the Constitution that only laws which are published shall
be valid, one must elucidate in what meanings the notion
"published" and the notion "laws" are employed in this
Constitution article.
3.1. The notion "published" which is used in Paragraph 2
of Article 7 of the Constitution inter alia means that the law
must establish the procedure of publication of the laws and the
source of information in which the laws must be published.
3.1.1. It should be noted that while establishing by the
law the procedure of publication of laws, one must observe the
requirements of the Constitution that the laws adopted by the
Seimas shall come into effect after the signing and official
promulgation thereof by the President of the Republic of
Lithuania, unless the laws themselves establish a later date of
entry into effect (Paragraph 1 of Article 70), that within ten
days of receiving a law adopted by the Seimas, the President of
the Republic shall either sign and officially promulgate the
said law, or shall refer it back to the Seimas together with
relevant reasons for consideration (Paragraph 1 of Article 71),
that if the law adopted by the Seimas is not referred back and
signed by the President of the Republic, such a law shall come
into effect upon the signing and official promulgation thereof
by the President of the Seimas (Paragraph 2 of Article 71),
that the President of the Republic must, within 5 days, sign
and officially promulgate a law or other act adopted by
referendum (Paragraph 3 of Article 71), that if the President
of the Republic does not sign and promulgate such a law within
the indicated period, the said law shall come into effect upon
the signing and official promulgation thereof by the President
of the Seimas (Paragraph 4 of Article 71), that the President
of the Republic must sign and forthwith officially promulgate
the laws which were referred back by the President of the
Republic and considered anew and adopted by the Seimas within
three days (Paragraph 3 of Article 72), that the President of
the Republic shall sign and promulgate laws adopted by the
Seimas or refer them back to the Seimas in accordance with the
procedure established in Article 71 of the Constitution (Item
24 of Article 84), that the President of the Republic shall
sign the adopted law on an alteration of the Constitution and
officially promulgate it within 5 days (Paragraph 1 of Article
149), that if the President of the Republic does not sign and
promulgate such a law during the indicated time, this law shall
come into effect when the President of the Seimas signs and
promulgates it (Paragraph 2 of Article 149), and other norms
and principles of the Constitution.
3.1.2. According to Paragraph 2 of Article 7 of the
Constitution, publication of the laws must allow the subjects
of the law to be certain that the announced law is exactly the
law which has been adopted by the Seimas or which has been
adopted in a referendum. Such announcement of laws is their
official publication.
3.1.3. In it ruling of 11 January 2001 the Constitutional
Court held that the official publication of laws in pursuance
with the procedure established in the Constitution and laws is
a necessary condition so that laws be valid and that subjects
of legal relations should know as to what laws are valid, what
their content is, and that they might follow these laws. There
may not be not published laws in a democratic state.
3.1.4. The notion "published" which is employed in
Paragraph 2 of Article 7 of the Constitution also means that
laws must be published publicly. The Constitutional Court has
held that law may not be non-public (Constitutional Court
rulings of 29 November 2001 and 30 May 2003).
Laws must be published publicly so that all legal subjects
might get acquainted with them. The constitutional requirement
that only laws which are published can be valid is an important
precondition of legal certainty. This constitutional
requirement is inseparable from the constitutional principle of
a state under the rule of laws.
3.2. The constitutional principle that law may not be
non-public is reflected in Paragraph 2 of Article 7 of the
Constitution.
Thus, taking account of the constitutional requirement
that law may not be non-public, the notion "laws" which is
employed in Paragraph 2 of Article 7 of the Constitution should
not be construed only literally. It should be construed in an
expanding manner, as a notion that includes not only legal
acts, which have the power of the law, but also other legal
acts.
4. In its ruling of 9 July 1999 the Constitutional Court
held that all parts of a normative legal act (as well as
annexes) constitute a whole, are inseparably connected and have
equal legal power.
Annexes may not be separated from a legal act because,
upon changing legal regulation established therein, the entire
content of the legal regulation established in the legal act is
changed.
Thus, if the said requirements of the Constitution are
observed, the whole legal act with all its constituent parts
must be published.
5. Under Article 14 of the Constitution, Lithuanian shall
be the state language, therefore only those legal acts which
are published in the Lithuanian state language are valid in
Lithuania.
6. Thus, only those legal acts, which have been published
according to the requirements of official publication and
publicity which are consolidated in the Constitution, as well
as the constitutional requirement that the whole legal act (all
its constituent parts) should be published, also the
constitutional requirement that legal acts must be published in
the Lithuanian state language, may be recognised as
corresponding with the requirements of Paragraph 2 of Article 7
of the Constitution, therefore being valid.
7. Alongside, it needs to be noted that the Constitution
establishes expressis verbis only separate elements of
publication of the laws on amendment of the Constitution
(Paragraphs 1 and 2 of Article 149), laws (Paragraph 1 of
Article 70, Article 71, Paragraph 3 of Article 72, Item 24 of
Article 84), other acts adopted by the Seimas (Paragraph 2 of
Article 72). The Constitution does not establish expressis
verbis sources of the official publication of legal acts or all
possible ways of their publication. The legislator must
establish it by the law. While regulating these relationships,
the legislator, taking account of the variety of legal acts and
their content, may establish a differentiated legal regulation.
While establishing it, the legislator must observe the
Constitution in all cases.
8. The provision of Paragraph 2 of Article 7 of the
Constitution that only laws which are published shall be valid
is to be construed, as well as all other provisions of the
Constitution, by only taking account of the principle of
superiority of the Constitution as the basic requirement of a
democratic state under the rule of law.
The constitutional principle of the superiority of the
Constitution is consolidated in Paragraph 1 of Article 7 of the
Constitution, which provides that any law or other act, which
is inconsistent with the Constitution, shall be invalid.
Different aspects of this principle are also consolidated in
Paragraph 2 of Article 5 which provides that the scope of power
shall be limited by the Constitution, in Paragraph 1 of Article
6, which establishes that the Constitution shall be an integral
and directly applicable act, in Paragraph 2 of Article 6, which
establishes that everyone may defend his rights on the grounds
of the Constitution, in Paragraph 1 of Article 30, which
establishes that the person whose constitutional rights or
freedoms are violated shall have the right to apply to court,
in Paragraph 1 of Article 102, which stipulates that the
Constitutional Court shall decide whether the laws and other
acts of the Seimas are not in conflict with the Constitution
and whether acts of the President of the Republic and the
Government are not in conflict with the Constitution or laws,
in Paragraph 1 of Article 110, which establishes that a judge
may not apply a law, which is in conflict with the
Constitution, and other provisions of the Constitution.
While construing the principle of the superiority of the
Constitution, the Constitutional Court held in its ruling of 24
December 2002: "The principle of the supremacy of the
Constitution means that the Constitution rests in the
exceptional, highest, place in the hierarchy of legal acts,
that no legal act may be in conflict with the Constitution,
that no one is permitted to violate the Constitution, that the
constitutional order must be protected, that the Constitution
itself consolidates the mechanism permitting to determine
whether legal acts (parts thereof) are not in conflict with the
Constitution. In this respect, the principle of the supremacy
of the Constitution, which is established in the Constitution,
is inseparably linked with the constitutional principle of a
state under the rule of law, which is a universal
constitutional principle upon which the entire Lithuanian legal
system and the Constitution itself are based. Violation of the
principle of the supremacy of the Constitution would mean that
the constitutional principle of a state under the rule of law
is violated as well."
In the context of the case under consideration it needs to
be noted that the principle of the superiority of the
Constitution implies the duty of the legislator, other
lawmaking subjects to revise legal acts, which were issued
before coming into effect of the Constitution, while taking
account of norms and principles of the Constitution, to ensure
a harmonious hierarchical system of legal acts, which regulate
the same relationships.
9. The Constitution shall be an integral and directly
applicable act (Paragraph 1 of Article 6 of the Constitution).
9.1. While construing the principle of integrity of the
Constitution, the Constitutional Court has held more than once
in its rulings that norms set forth in different articles of
the Constitution are co-ordinated with each other and
constitute an integral whole, a harmonious system; no provision
of the Constitution may be opposed against other provisions of
the Constitution, it is not permitted to construe it in such a
way that the meaning of other provisions of the Constitution be
denied or distorted.
9.2. The Constitution has certain structural
peculiarities. The Constitution consists of the Preamble,
fourteen chapters, final provisions, as well as other
constituent parts of the Constitution.
9.2.1. Article 150 of the Constitution provides:
"The constituent part of the Constitution of the Republic
of Lithuania shall be:
The 11 February 1991 Constitutional Law "On the State of
Lithuania";
The 8 June 1992 Constitutional Act 'On the Non-Alignment
of the Republic of Lithuania with Post-Soviet Eastern Unions'".
9.2.2 Article 152 of the Constitution provides: "The
procedure of entry into effect of this Constitution and
separate provisions thereof shall be regulated by Law of the
Republic of Lithuania 'On the Procedure of Entry into Effect of
the Constitution of the Republic of Lithuania', which, together
with this Constitution of the Republic of Lithuania, shall be
adopted by referendum."
The Law "On the Procedure of Entry into Effect of the
Constitution of the Republic of Lithuania" was adopted by the
Nation in the Referendum of 25 October 1992 together with the
Constitution of the Republic of Lithuania.
The Law "On the Procedure of Entry into Effect of the
Constitution of the Republic of Lithuania" provides:
"Article 1
Upon entry into effect of the Constitution of the Republic
of Lithuania, the Provisional Basic Law of the Republic of
Lithuania shall become null and void.
Article 2
Laws, other legal acts or parts thereof which were in
effect on the territory of the Republic of Lithuania prior to
the adoption of the Constitution of the Republic of Lithuania,
shall be effective inasmuch as they are not in conflict with
the Constitution and this Law, and shall remain in effect until
they are either declared null and void or harmonised with the
provisions of the Constitution.
Article 3
Provisions of the laws of the Republic of Lithuania which
regulate the status of the supreme institutions of State power
and administration of the Republic of Lithuania, of the
deputies and municipalities shall be in effect until the
elected Seimas decides otherwise.
Article 4
The powers of the Supreme Council of the Republic of
Lithuania and its deputies shall be terminated when the elected
Seimas of the Republic of Lithuania convenes into its first
sitting.
The members of the Seimas of the Republic of Lithuania
shall convene in the sitting on the third working day after the
official announcement of the Central Electoral Commission,
following both election rounds, that not less than 3/5 of all
the members of the Seimas have been elected.
Article 5
The following text shall be the established oath of the
member of the Seimas of the Republic of Lithuania:
'I, (full name),
Swear to be faithful to the Republic of Lithuania;
Swear to respect and execute its Constitution and laws and
to protect the integrity of its lands;
Swear to strengthen, to the best of my ability, the
independence of Lithuania, and to conscientiously serve my
Homeland, Democracy, and the welfare of the people of
Lithuania.
So help me God.'
The oath may also be taken omitting the last sentence.
Article 6
During the period that there is no President of the
Republic, the legal situation shall be equivalent to that
provided for in Article 89 of the Constitution of the Republic
of Lithuania.
If necessary, the Seimas, by a majority vote of more than
half of all the members of the Seimas, may prolong the terms
provided for in Article 89, but not longer than a four-month
period.
Article 7
Justices of the Constitutional Court of the Republic of
Lithuania, including the President of the Constitutional Court,
must be appointed within one month after the President of the
Republic is elected.
Upon the initial appointment of Constitutional Court
justices, three of them shall be appointed for a three-, three
for a six-, and three for a nine-year term.
The President of the Republic, the President of the
Seimas, and the President of the Supreme Court, while proposing
to appoint Constitutional Court justices, shall indicate which
of them are to be appointed for a three-, which for a six-, and
which for a nine-year term.
The justices of the Constitutional Court who will be
appointed for three- and six-year terms may take the same
office for one more term of office after an interval of not
less than three years.
Article 8
The provisions of the Third Paragraph of Article 20 of the
Constitution of the Republic of Lithuania shall become
applicable once the laws on criminal procedure of the Republic
of Lithuania are harmonised with this Constitution."
9.2.3. It needs to be emphasised that the provisions of
the Law "On the Procedure of Entry into Effect of the
Constitution of the Republic of Lithuania" are inseparably
related with other provisions of the Constitution. The
provisions, which are consolidated in some articles of this
law, supplement other provisions of the Constitution, which the
former could not be implemented without. Other articles of this
law establish the peculiarities of implementation of the
provisions of the Constitution during the period when state
institutions provided for by the Constitution were in the
course of establishment, also when the legal regulation which
is required by the Constitution was being created.
The Law "On the Procedure of Entry into Effect of the
Constitution of the Republic of Lithuania", which was adopted
by the Nation in the Referendum together with the Constitution
and provisions of which are inseparably related with the
provisions and principles of the Constitution and supplement
other provisions of the Constitution or establish peculiarities
of implementation of corresponding provisions of the
Constitution may not be itself a non-constituent part of the
Constitution.
Thus, the Law "On the Procedure of Entry into Effect of
the Constitution of the Republic of Lithuania" is a constituent
part of the Constitution and its provisions have the power of
the Constitution.
10. It should be noted that the wording of Article 2 of
the Law "On the Procedure of Entry into Effect of the
Constitution of the Republic of Lithuania" "inasmuch as they
are not in conflict with the Constitution and this Law", which
is related with the principle of the superiority of the
Constitution, and in particular with the provision of Paragraph
1 of Article 7 of the Constitution that any law or other act
which is inconsistent with the Constitution shall be invalid,
means that the Constitution establishes that legal acts, which
had been adopted before the entry into effect of the
Constitution, may not be valid if they are inconsistent with
the Constitution and if it has been established, on the basis
and according to the procedure established in the Constitution
that those legal acts are in conflict with the Constitution.
Under the Constitution, the formulation "shall remain in
effect until they are either declared null and void or
harmonised with the provisions of the Constitution" of Article
2 of the Law "On the Procedure of Entry into Effect of the
Constitution of the Republic of Lithuania" means that the
legislator, other legislative subjects have the duty to revise
all legal acts adopted by them prior to the entry into effect
of the Constitution and still remaining in force, also the
legal acts which were adopted by no longer existing
institutions after the entry into effect of the Constitution
and still remaining in force which regulate the relationships
which are assigned to the sphere of regulation of an
appropriate legislative subject, as well as the legal acts
which had been adopted before the restoration of the
independent State of Lithuania and remained in force after the
restoration of the independent State of Lithuania and, after
the entry into effect of the Constitution, regulate the
relationships which are assigned to the sphere of regulation of
an appropriate legislative subject, and to assess whether those
legal acts, in the opinion of that legislative subject, are not
in conflict with the Constitution.
The legislator, other legislative subject, upon assessment
that, in his opinion, a legal act, which had been adopted
before the entry into effect of the Constitution and still
remaining in force, or a legal act, adopted by no longer
existing institutions after the entry into effect of the
Constitution and still remaining in force, which regulates the
relationships which are assigned to the sphere of regulation of
an appropriate legislative subject, or a legal act, which had
been adopted before the restoration of the independent State of
Lithuania and remained in force after restoration of the
independent State of Lithuania and, after the entry into effect
of the Constitution regulate the relationships which are
assigned to the sphere of regulation of an appropriate
legislative subject, is in conformity with the Constitution,
may leave such a legal act in effect. On the other hand, if the
legislator, other legislative subject assesses that, in his
opinion, a legal act (or part thereof), which had been adopted
before the entry into effect of the Constitution and still
remaining in force, or a legal act (or part thereof), adopted
by no longer existing institutions after the entry into effect
of the Constitution and still remaining in force which regulate
the relationships which are assigned to the sphere of
regulation of an appropriate legislative subject, or a legal
act (or part thereof), which had been adopted before the
restoration of the independent State of Lithuania and remained
in force after restoration of the independent State of
Lithuania and, after the entry into effect of the Constitution,
regulate the relationships, which are assigned to the sphere of
regulation of an appropriate legislative subject, is not in
conformity with the Constitution, he has a constitutional duty
to either harmonise this act with the Constitution, i.e. to
pass a new legal act, which would amend, in the opinion of that
legislative subject, the legal act (or part thereof) that is
not in conformity with the Constitution, or to recognise such a
legal act, which, in his opinion, is not in conformity with the
Constitution, as no longer valid.
The constitutionality of legal acts (or parts thereof),
which have not been harmonised with the Constitution by passing
a new legal act by the appropriate legislative subject, which
would have amended, in the opinion of that legislative subject,
the legal act (or part thereof) that was not in conformity with
the Constitution, and which have not been recognised as no
longer valid, may be verified by conducting constitutional
control. According to the Constitution, the Constitutional
Court decides as to the conformity of the Republic of Lithuania
laws, other acts adopted by the Supreme Council, Government
acts, which were adopted prior to the entry into effect of the
Constitution, as well as of legal acts of corresponding legal
power, which were adopted before the restoration of the
independent State of Lithuania, but remained in force after the
restoration of the independent State of Lithuania, and regulate
the relationships that are assigned to sphere of regulation of
the Seimas or the Government. In its ruling of 30 May 2003, the
Constitutional Court held that, according to the Constitution,
only the Constitutional Court has the powers to officially
construe the Constitution.
11. It needs to be noted in the context of the case at
issue that the duty of the legislator, other lawmaking subjects
to revise all legal acts adopted by them before the entry into
effect of the Constitution and still remaining in force, also
legal acts, which were adopted by no longer existing
institutions after the entry into effect of the Constitution
and still remaining in force which regulate the relationships
which are assigned to the sphere of regulation of an
appropriate legislative subject, as well as legal acts, which
were adopted before the restoration of the independent State of
Lithuania and remained in force after restoration of the
Independent State of Lithuania and, after entry into effect of
the Constitution, regulate the relationships which are assigned
to the sphere of regulation of an appropriate legislative
subject, and to assess whether those legal acts, in the opinion
of that legislative subject, is not in conflict with the
Constitution, also implies their duty to guarantee that these
legal acts be harmonised with the provisions of the
Constitution not only according to the content and extent of
legal regulation established therein, as well as not only
according to the form of a legal act, but also according to the
publication of these legal acts, as it is required by Paragraph
2 of Article 7 of the Constitution.
It should be noted that the process of revision and
assessment of legal acts as to their conformity with the
Constitution, which were adopted before the entry into force of
the Constitution, is not a onetime act, however, this process
may not last for a groundlessly long time period. The duty of
the legislator, other lawmaking subjects to revise all legal
acts adopted by them before the entry into effect of the
Constitution and which still remain in force, also legal acts,
which were adopted by no longer existing institutions after the
entry into effect of the Constitution and still remaining in
force, which regulate the relationships which are assigned to
the sphere of regulation of an appropriate legislative subject,
as well as legal acts, which had been adopted before the
restoration of the independent State of Lithuania and remained
in force after restoration of the independent State of
Lithuania and, after the entry into effect of the Constitution,
regulate the relationships, which are assigned to the sphere of
regulation of an appropriate legislative subject, and assess
their conformity with the Constitution within a reasonably
short period, stems from the principle of the superiority of
the Constitution, and the constitutional principle of a state
under the rule of law. This can be also said about the revision
and assessment of such legal acts in respect of the manner of
publication.
12. It has been mentioned that, under Paragraph 2 of
Article 95 of the Constitution, resolutions of the Government
shall be signed by the Prime Minister and the Minister of an
appropriate branch.
Thus, Paragraph 2 of Article 95 of the Constitution
establishes what state officials have the powers to sign
resolutions of the Government. The provision of Paragraph 2 of
Article 95 of the Constitution also means that the Prime
Minister and the Minister of an appropriate branch must sign
resolutions of the Government if they have been adopted
according to the established procedure, as well as that it is
forbidden to persons, who are not specified in Paragraph 2 of
Article 95 of the Constitution, i.e. who are not the Prime
Minister and the Minister of an appropriate branch, or to only
one of these officials, to sigh resolutions of the Government.
According to the Constitution, after the entry into effect
of the Constitution, only those resolutions of the Government,
which are signed by the Prime Minister and the Minister of an
appropriate branch, shall be authentic.
V
On the compliance of Government Resolution No. 458 "On the
Methods for Calculation of Damage Inflicted on Nature as a
Result of Violation of Environmental Protection Laws" with
Paragraph 2 of Article 7 of the Constitution and Paragraph 1
(wording of 18 May 1999) of Article 8 of the Law "On the
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts".
1. It has been mentioned that the petitioner has doubts as
to whether Government Resolution No. 458 "On the Methods for
Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws" of 8 November 1991
is not in conflict with Paragraph 2 of Article 7 of the
Constitution and Paragraph 1 (wording of 18 May 1999) of
Article 8 of the Law "On the Procedure of Publication and
Coming Into Force of Republic of Lithuania Laws and Other Legal
Acts".
The petitioner based his doubts on the fact that the
disputed Government resolution was published in the official
gazette Lietuvos Respublikos Aukščiausiosios Tarybos ir
Vyriausybės žinios, but the Methods for Calculation of Damage
Inflicted on Nature as a Result of Violation of Environmental
Protection Laws as established in Item 1 of this resolution was
neither published together with the disputed Government
resolution, nor later.
2. Item 1 of Government Resolution No. 458 "On the Methods
for Calculation of Damage Inflicted on Nature as a Result of0
Violation of Environmental Protection Laws" of 8 November 1991,
whereby the Methods for Calculation of Damage Inflicted on
Nature as a Result of Violation of Environmental Protection
Laws were approved, is inseparably related with Items 2 and 3
of this resolution, which regulate different aspects of
implementation of the Methods for Calculation of Damage
Inflicted on Nature as a Result of Violation of Environmental
Protection Laws.
3. It has been held in this Constitutional Court ruling
that all parts of a normative legal act (as well as annexes)
constitute a whole, are inseparably related and have equal
legal power, that annexes may not be separated from the legal
act, because the entire content of legal regulation, which is
established in the legal act, is changed while changing the
legal regulation established in them.
Thus, the Methods for Calculation of Damage Inflicted on
Nature as a Result of Violation of Environmental Protection
Laws are an inseparable part of Government Resolution No. 458
"On the Methods for Calculation of Damage Inflicted on Nature
as a Result of Violation of Environmental Protection Laws" of 8
November 1991.
4. It has been held in this Constitutional Court ruling
that only those legal acts, which have been published while
observing inter alia the requirements of official and public
publication, which are established in the Constitution, as well
as the constitutional requirement that the entire legal act
(all its constituent parts) must be published, may be
recognised to be in compliance with the requirements of
Paragraph 2 of Article 7 of the Constitution, therefore as
being valid.
Otherwise, subjects of law would not be certain that the
published legal act is precisely the one, which has been
adopted by the competent lawmaking subject.
It has also been held in this Constitutional Court ruling
that, according to the Constitution, lawmaking subjects have a
duty to revise all legal acts adopted by them before the entry
into effect of the Constitution and still remaining in force,
and to assess whether those acts, in the opinion of the
lawmaking subject, are not in conflict with the Constitution.
It has been also held that the said duty of lawmaking
subjects also implies their duty to guarantee that those legal
acts be harmonised with the provisions of the Constitution not
only according to the content and extent of legal regulation
established therein, as well as not only according to the form
of the legal act, but also according to the publication of
these legal acts, as it is required by Paragraph 2 of Article 7
of the Constitution.
5. It is clear from the material of the case that
Government Resolution No. 458 "On the Methods for Calculation
of Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws" of 8 November 1991 was published
on 30 November 1991 in the official gazette Lietuvos
Respublikos Aukščiausiosios Tarybos ir Vyriausybės žinios
(1991, No. 33-928). However, the Methods for Calculation of
Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws, as approved by this Government
resolution, were not published in the official gazette Lietuvos
Respublikos Aukščiausiosios Tarybos ir Vyriausybės žinios. The
representative of the party concerned maintains that the said
methods were published in the bulletin "Environmental
Protection in the Republic of Lithuania" (1991, No. 2) of the
Environmental Protection Department and Lithuanian Information
Centre, which was published in 5000 copies, and in a separate
publication of the Environmental Protection Department "Methods
for Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws" in 3000 copies. The
representative of the party concerned maintains that all
ministries, services and organisations concerned were supplied
with these methods.
It is also clear from the case material that even after
the entry into effect of the Constitution, the Methods for
Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws as approved by
Government Resolution No. 458 "On the Methods for Calculation
of Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws" of 8 November 1991 were
published neither in the official gazette Lietuvos Respublikos
Seimo ir Vyriausybės žinios which replaced the official gazette
Lietuvos Aukščiausiosios Tarybos ir Vyriausybės žinios, nor in
the official gazette Valstybės žinios which replaced the
latter. The said Methods for Calculation of Damage Inflicted on
Nature as a Result of Violation of Environmental Protection
Laws as a constituent part of Government Resolution No. 458 "On
the Methods for Calculation of Damage Inflicted on Nature as a
Result of Violation of Environmental Protection Laws" of 8
November 1991 was not published in any other official source of
publication of legal acts.
6. The publication of the Methods for Calculation of
Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws as a constituent part of
Government Resolution No. 458 "On the Methods for Calculation
of Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws" of 8 November 1991 in a
non-official source of publication of legal acts may not be
considered as complying with the requirements of official,
public publication of legal acts as consolidated in the
Constitution, as well as the constitutional requirement that a
whole legal act (all its constituent parts) must be published.
The Government, having not published the Methods for
Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws as approved by
Government Resolution No. 458 "On the Methods for Calculation
of Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws" of 8 November 1991 after the
entry into effect of the Constitution, has not fulfilled its
constitutional duty to revise this legal act, which had been
adopted before the entry into force of the Constitution and
still remaining in force, and harmonise it with the provisions
of the Constitution according to the manner of its publication.
This is not in conformity with the requirement of Article 2 of
the Law "On the Procedure of Entry Into Effect of the
Constitution of the Republic of Lithuania".
7. Taking account of the arguments set forth, one is to
conclude that Government Resolution No. 458 "On the Methods for
Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws" of 8 November 1991
was in conflict with Paragraph 2 of Article 7 of the
Constitution, Article 2 of the Law "On the Procedure of Entry
Into Effect of the Constitution of the Republic of Lithuania",
and the constitutional principle of a state under the rule of
law.
8. Having held that Government Resolution No. 458 "On the
Methods for Calculation of Damage Inflicted on Nature as a
Result of Violation of Environmental Protection Laws" of 8
November 1991 was in conflict with Paragraph 2 of Article 7 of
the Constitution, Article 2 of the Law "On the Procedure of
Entry Into Effect of the Constitution of the Republic of
Lithuania", and the constitutional principle of a state under
the rule of law, the Constitutional Court will not investigate
the compliance of the said Government Resolution with Paragraph
1 (wording of 18 May 1999) of Article 8 of the Law "On the
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts". In this part the case is
to be dismissed.
9. Alongside, it needs to be noted that a duty of all
persons to preserve nature and to compensate the harm (damage)
to the natural environment, when it has been done, arises from
the provision of Paragraph 3 of Article 53 of the Constitution
that the state and each person must protect the environment
from harmful influences, the provision of Paragraph 1 of
Article 54 of the Constitution that the state shall look after
the protection of the natural environment, its fauna and flora,
individual objects of nature and districts of particular value,
and shall supervise that natural resources be used moderately
and they be restored and augmented, the provision of Paragraph
2 of Article 54 of the Constitution that the destruction of
land and the subterranean, the pollution of water and air,
environmental degradation as the result of radioactive impact,
and the impoverishment of fauna and flora, shall be prohibited
by law.
The fact that this Constitutional Court ruling has
recognised Government Resolution No. 458 "On the Methods for
Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws" of 8 November 1991
to be in conflict with Paragraph 2 of Article 7 of the
Constitution, Article 2 of the Law "On the Procedure of Entry
Into Effect of the Constitution of the Republic of Lithuania",
and the constitutional principle of a state under the rule of
law does not mean that the persons who have inflicted harm
(damage) on the natural environment, do not have the
constitutional duty to compensate this harm (damage). In all
cases the harm (damage) inflicted on the natural environment
has to be compensated irrespective of the fact whether any
methods of compensation of the harm (damage) caused to the
natural environment has been established. In case of a dispute,
the amount of the harm (damage) may be established according to
the judicial procedure.
VI
On the compliance of Government Resolution No. 458 "On the
Methods for Calculation of Damage Inflicted on Nature as a
Result of Violation of Environmental Protection Laws" of 8
November 1991 with Paragraph 2 of Article 95 of the
Constitution.
1. It has been mentioned that the petitioner doubts as to
compliance of Government Resolution No. 458 "On the Methods for
Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws" of 8 November 1991
with Paragraph 2 of Article 95 of the Constitution.
2. Signing of a Government resolution is a onetime act.
Thereby it is confirmed that the Government resolution is
adopted and that the said signed text of the Government
resolution is authentic.
3. In needs to be noted in the context of the case at
issue that Government Resolution No. 458 "On the Methods for
Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws" of 8 November 1991
was adopted and signed by the Prime Minister before the entry
into force of the Constitution.
4. The requirement of Paragraph 2 of Article 95 of the
Constitution establishes that resolutions of the Government
shall be signed by the Prime Minister and the Minister of an
appropriate branch is to be applied to Government resolutions,
which were adopted after the entry into effect of the
Constitution. This requirement may not be applied retroactively
to Government acts, which had been adopted and signed before
the entry into effect of the Constitution.
5. Taking account of the arguments set forth, the
Constitutional Court will not investigate in the present case
whether Government Resolution No. 458 "On the Methods for
Calculation of Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws" of 8 November 1991
was not in conflict with Paragraph 2 of Article 95 of the
Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, 56 and
Paragraph 3 of Article 69 of the Law on the Constitutional
Court of the Republic of Lithuania, the Constitutional Court of
the Republic of Lithuania has passed the following
ruling:
1. To recognise that Republic of Lithuania Government
Resolution No. 458 "On the Methods for Calculation of Damage
Inflicted on Nature as a Result of Violation of Environmental
Protection Laws" of 8 November 1991 was in conflict with
Paragraph 2 of Article 7 of the Constitution of the Republic of
Lithuania, Article 2 of the Republic of Lithuania Law "On the
Procedure of Entry Into Effect of the Constitution of the
Republic of Lithuania", and the constitutional principle of a
state under the rule of law.
2. To dismiss the part of the case according to the
request of the Vilnius Regional Court, the petitioner, to
investigate whether Republic of Lithuania Government Resolution
No. 458 "On the Methods for Calculation of Damage Inflicted on
Nature as a Result of Violation of Environmental Protection
Laws" of 8 November 1991 was not in conflict with Paragraph 1
(wording of 18 May 1999) of Article 8 of the Republic of
Lithuania Law "On the Procedure of Publication and Coming Into
Force of Republic of Lithuania Laws and Other Legal Acts".
This Constitutional Court ruling is be final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas