Lietuviškai
Case No. 23/02
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF SECTION 3 OF ITEM 18 OF THE PROCEDURE
FOR SUBMISSION, CONSIDERATION AND ISSUANCE OF PERMITS
CONCERNING APPLICATIONS REQUESTING TO ACQUIRE NON-AGRICULTURAL
LAND PLOTS AS OWNERSHIP TO NATIONAL AND FOREIGN ENTITIES
ESTABLISHED IN THE CONSTITUTIONAL LAW ON THE ENTITIES,
PROCEDURE, TERMS AND CONDITIONS AND RESTRICTIONS OF THE
ACQUISITION INTO OWNERSHIP OF LAND PLOTS PROVIDED FOR IN
PARAGRAPH 2 OF ARTICLE 47 OF THE CONSTITUTION OF THE REPUBLIC
OF LITHUANIA (WORDING OF 10 DECEMBER 1998), WHICH WAS CONFIRMED
BY GOVERNMENT OF THE REPUBLIC OF LITHUANIA RESOLUTION NO. 1423
"ON THE CONFIRMATION OF THE PROCEDURE FOR SUBMISSION,
CONSIDERATION AND ISSUANCE OF PERMITS CONCERNING APPLICATIONS
REQUESTING TO ACQUIRE NON-AGRICULTURAL LAND PLOTS AS OWNERSHIP
TO NATIONAL AND FOREIGN ENTITIES ESTABLISHED IN THE
CONSTITUTIONAL LAW ON THE ENTITIES, PROCEDURE, TERMS AND
CONDITIONS AND RESTRICTIONS OF THE ACQUISITION INTO OWNERSHIP
OF LAND PLOTS PROVIDED FOR IN PARAGRAPH 2 OF ARTICLE 47 OF THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA" OF 10 DECEMBER 1998
WITH THE CONSTITUTION OF REPUBLIC OF LITHUANIA, ARTICLE 4 OF
THE REPUBLIC OF LITHUANIA LAW ON COURTS (WORDING OF 24 JANUARY
2002) AND ARTICLE 5 OF THE REPUBLIC OF LITHUANIA LAW ON THE
LEGAL PROCEEDINGS OF ADMINISTRATIVE CASES (WORDING OF 19
SEPTEMBER 2001)
17 August 2004
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, 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 Jelena Liaskovskaja,
Deputy Head of the Legal Division of the Ministry of
Agriculture 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 11 August
2004 in its public hearing heard Case No. 23/02 which
originated in a petition of the Panevėžys Regional
Administrative Court, the petitioner, requesting to investigate
as to whether the provision "in case this complaint is
considered by the Government of the Republic of Lithuania or
the ministry authorised by it, the decision adopted by it shall
be final" of Section 3 of Item 18 of the Procedure for
Submission, Consideration and Issuance of Permits Concerning
Applications Requesting to Acquire Non-agricultural Land Plots
as Ownership to National and Foreign Entities Established in
the Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania, which was confirmed
by Government of the Republic of Lithuania Resolution No. 1423
"On the Confirmation of the Procedure for Submission,
Consideration and Issuance of Permits Concerning Applications
Requesting to Acquire Non-agricultural Land Plots as Ownership
to National and Foreign Entities Established in the
Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania" of 10 December 1998
was not in conflict with Paragraph 1 of Article 30 of the
Constitution of the Republic of Lithuania, Paragraph 3 of
Article 4 of the Republic of Lithuania Law on Courts and
Paragraph 1 of Article 5 of the Republic of Lithuania Law on
the Legal Proceedings of Administrative Cases.
The Constitutional Court
has established:
I
The Panevėžys Regional Administrative Court, the
petitioner, was considering an administrative case. By its
ruling the said court suspended the consideration of the case
and applied to the Constitutional Court with a petition
requesting to investigate as to whether the provision "in case
this complaint is considered by the Government of the Republic
of Lithuania or the ministry authorised by it, the decision
adopted by it shall be final" of Section 3 of Item 18 of the
Procedure for Submission, Consideration and Issuance of Permits
Concerning Applications Requesting to Acquire Non-agricultural
Land Plots as Ownership to National and Foreign Entities
Established in the Constitutional Law on the Entities,
Procedure, Terms and Conditions and Restrictions of the
Acquisition into Ownership of Land Plots Provided for in
Paragraph 2 of Article 47 of the Constitution of the Republic
of Lithuania (hereinafter also referred to as the Procedure),
which was confirmed by Government of the Republic of Lithuania
Resolution No. 1423 "On the Confirmation of the Procedure for
Submission, Consideration and Issuance of Permits Concerning
Applications Requesting to Acquire Non-agricultural Land Plots
as Ownership to National and Foreign Entities Established in
the Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania" of 10 December 1998
(Official Gazette Valstybės žinios, 1998, No. 110-3042;
hereinafter also referred to as the Government resolution of 10
December 1998) was not in conflict with Paragraph 1 of Article
30 of the Constitution, Paragraph 3 of Article 4 of the Law on
Courts and Paragraph 1 of Article 5 of the Law on the Legal
Proceedings of Administrative Cases.
II
The request of the petitioner is based on the following
arguments.
1. Paragraph 1 of Article 30 of the Constitution provides
that the person whose constitutional rights or freedoms are
violated shall have the right to apply to court.
Under Paragraph 3 of Article 4 of the Law on Courts,
enterprises, establishments, organisations and other
institutions also enjoy the right to judicial defence; under
Paragraph 1 of Article 5 of the Law on the Legal Proceedings of
Administrative Cases, every interested entity shall be entitled
to apply to court, in the manner prescribed by law, for the
protection of his infringed or contested right or interest
protected under law.
2. According to Article 10 of the 20 June 1996 the
Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania, the entities as
defined in this law, which desire to acquire a plot of
non-agricultural land shall file a written application with the
Government; the Government shall set the form of the
application, specify the documents and information that must be
submitted, as well as establish the procedures for filing and
consideration of applications and the issue of permits.
By its Resolution No. 1423 "On the Confirmation of the
Procedure for Submission, Consideration and Issuance of Permits
Concerning Applications Requesting to Acquire Non-agricultural
Land Plots as Ownership to National and Foreign Entities
Established in the Constitutional Law on the Entities,
Procedure, Terms and Conditions and Restrictions of the
Acquisition into Ownership of Land Plots Provided for in
Paragraph 2 of Article 47 of the Constitution of the Republic
of Lithuania" of 10 December 1998, the Government confirmed the
Procedure for Submission, Consideration and Issuance of Permits
Concerning Applications Requesting to Acquire Non-agricultural
Land Plots as Ownership to National and Foreign Entities
Established in the Constitutional Law on the Entities,
Procedure, Terms and Conditions and Restrictions of the
Acquisition into Ownership of Land Plots Provided for in
Paragraph 2 of Article 47 of the Constitution of the Republic
of Lithuania. Item 3 of the Procedure provides that the
entities who wish to acquire non-agricultural land plots as
ownership, shall file applications, addressed to the
Government, with county chiefs depending on the place that the
land plots are situated. The county chief must consider such
applications within one month as of the day that they were
registered and adopt a decision either to issue or not to issue
a permit to acquire the land plot (Items 13-16 of the
Procedure). Section 3 of Item 18 of the Procedure provides that
the applicant may lodge a complaint against the decision of the
county chief with the Government or its authorised ministry; in
case this complaint is considered by the Government or the
ministry authorised by it, the decision adopted by it shall be
final.
3. In the opinion of the petitioner, the Government had
the right to establish a preliminary extra-judicial procedure
for settlement of disputes, however, the procedure established
is such that an entity, having lodged a complaint against the
decision of the county chief with the Government or a ministry
authorised by the latter, loses the right to judicial defence
of his interests. Therefore, the petitioner is of the opinion
that the provision "in case this complaint is considered by the
Government of the Republic of Lithuania or the ministry
authorised by it, the decision adopted by it shall be final" of
Section 3 of Item 18 of the Procedure groundlessly restricts
the rights of the person and is in conflict with Paragraph 1 of
Article 30 of the Constitution, Paragraph 3 of Article 4 of the
Law on Courts and Paragraph 1 of Article 5 of the Law on the
Legal Proceedings of Administrative Cases.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from the representative of the Government, the party
concerned, who was J. Liaskovskaja.
1. According to Paragraph 1 of Article 10 of the
Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution, the entities as defined in this law, which desire
to acquire a plot of non-agricultural land shall file a written
application with the Government, while under Paragraph 6 of the
same article, the Government shall set the form of the
application, specify the documents and information that must be
submitted, as well as establish the procedures for filing and
consideration of applications and the issue of permits.
Under Item 2 of the Procedure, permits for acquisition of
non-agricultural land plots shall be issued by respective
county chiefs depending on the place that the land plots are
situated, while under Section 3 of Item 18 of the Procedure,
the applicant may lodge a complaint against the decision of the
county chief with the Government or its authorised ministry; in
case this complaint is considered by the Government or the
ministry authorised by it, the decision adopted by it shall be
final.
According to the representative of the party concerned,
the Government has not authorised any ministry to consider
complaints regarding decisions adopted by county chiefs,
therefore the complaints specified by Item 18 of the Procedure
are considered by the Government.
2. Under the Work Regulations of the Government of the
Republic of Lithuania (with subsequent amendments) confirmed by
Government Resolution No. 728 "On the Confirmation of the Work
Regulations of the Government of the Republic of Lithuania" of
11 August 1994, applications of citizens, as well as other
persons, including foreigners who permanently reside in the
Republic of Lithuania, which are addressed to the Government,
are considered in accordance with laws and other legal acts.
Under Item 40 of the Standard Procedure for Rendering
Service to Citizens and Persons at Civil and Other Institutions
confirmed by Government Resolution No. 1491 "On the
Confirmation of the Standard Procedure for Rendering Service to
Citizens and Persons at Civil and Other Institutions" of 25
September 2002, the applicant, if he does not agree with a
decision adopted after consideration of his complaint, has the
right to file a complaint with the Administrative Disputes
Commission or an administrative court in pursuance with the
procedure established in the Law on the Legal Proceedings of
Administrative Cases.
According to the representative of the party concerned,
subsequent to Paragraph 3 of Article 18 and Paragraph 3 of
Article 19 of the Law on the Legal Proceedings of
Administrative Cases, the regional administrative court
considers complaints (applications) as the court of the first
instance also as regards decisions adopted by other
institutions (not provided for in the first and second
paragraphs of these articles) for preliminary extrajudicial
consideration of complaints in cases provided for by laws. The
decision of an appropriate administrative disputes commission
or any other institution for preliminary extrajudicial hearing
of disputes, adopted after hearing an administrative dispute in
accordance with the extrajudicial procedure, may be appealed
against to the administrative court by any of the parties to
the dispute, contesting the decision of the institution for
preliminary extrajudicial hearing of disputes; in such an event
one can apply to the administrative court within 20 days of the
day of receipt of the decision (Paragraph 1 of Article 32 of
the Law on the Legal Proceedings of Administrative Cases).
In the opinion of J. Liaskovskaja, on the grounds of the
said legal acts, a resolution adopted by the Government
concerning the decision of the county chief against which a
complaint was filed by a national or foreign entity is an
individual administrative legal act and it is final only when
the complaint is considered under preliminary extrajudicial
procedure; after the Government adopts a resolution concerning
refusal of the county chief to issue a permit for acquisition
of a non-agricultural land plot, the entity is not deprived of
the right to apply to court concerning defence of its rights.
3. In the opinion of the representative of the party
concerned, while taking account of the arguments set forth, the
disputed provision of Item 18 of the Procedure is not in
conflict with Paragraph 1 of Article 30 of the Constitution,
Paragraph 3 of Article 4 of the Law on Courts and Paragraph 1
of Article 5 of the Law on the Legal Proceedings of
Administrative Cases.
IV
In the course of the preparation of the case for the
judicial investigation, written explanations were received from
V. Markevičius, Minister of Justice of the Republic of
Lithuania, V. Valeckaitė, Deputy Director of the Institute of
Law, and T. Birmontienė, Director of the Lithuanian Centre for
Human Rights.
V
At the Constitutional Court hearing, J. Liaskovskaja, the
representative of the Government, the party concerned,
virtually reiterated the arguments set forth in her written
explanations.
J. Liaskovskaja also drew one's attention to the fact that
by Government Resolution No. 1349 "On the Amendment of
Government of the Republic of Lithuania Resolution No. 1423 'On
the Confirmation of the Procedure for Submission, Consideration
and Issuance of Permits Concerning Applications Requesting to
Acquire Non-agricultural Land Plots as Ownership to National
and Foreign Entities Established in the Constitutional Law on
the Entities, Procedure, Terms and Conditions and Restrictions
of the Acquisition into Ownership of Land Plots Provided for in
Paragraph 2 of Article 47 of the Constitution of the Republic
of Lithuania' of 10 December 1998" of 30 October 2003
(hereinafter referred to as the Government resolution of 30
October 2003), the Government resolution of 10 December 1998
was amended and set forth in a new wording, as well as to the
fact that the new wording of the Procedure for Submission,
Consideration and Issuance of Permits Concerning Applications
Requesting to Acquire Non-agricultural Land Plots as Ownership
to National and Foreign Entities Established in the
Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania which was confirmed
by the Government resolution of 10 December 1998 no longer
contains the provision disputed by the petitioner. Referring to
Paragraph 4 of Article 69 of the Law on the Constitutional
Court, according to which the annulment of the disputed legal
act shall be grounds to adopt a decision to dismiss the
initiated legal proceedings, the representative of the party
concerned requested that the Constitutional Court dismiss the
initiated legal proceedings in this case.
The Constitutional Court
holds that:
I
1. The Panevėžys Regional Administrative Court, the
petitioner, requests to investigate the compliance of the
provision "in case this complaint is considered by the
Government of the Republic of Lithuania or the ministry
authorised by it, the decision adopted by it shall be final" of
Section 3 of Item 18 of the Procedure for Submission,
Consideration and Issuance of Permits Concerning Applications
Requesting to Acquire Non-agricultural Land Plots as Ownership
to National and Foreign Entities Established in the
Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania, which was confirmed
by Government Resolution No. 1423 "On the Confirmation of the
Procedure for Submission, Consideration and Issuance of Permits
Concerning Applications Requesting to Acquire Non-agricultural
Land Plots as Ownership to National and Foreign Entities
Established in the Constitutional Law on the Entities,
Procedure, Terms and Conditions and Restrictions of the
Acquisition into Ownership of Land Plots Provided for in
Paragraph 2 of Article 47 of the Constitution of the Republic
of Lithuania" of 10 December 1998 with Paragraph 1 of Article
30 of the Constitution, Paragraph 3 of Article 4 of the Law on
Courts and Paragraph 1 of Article 5 of the Law on the Legal
Proceedings of Administrative Cases.
2. On 20 June 1996, the Seimas adopted the Law on the
Supplement of Article 47 of the Constitution of the Republic of
Lithuania, whereby Article 47 of the Constitution was
supplemented with Paragraph 2 and this article was set forth as
follows:
"Land, internal waters, forests, and parks may belong by
right of ownership only to the citizens of the Republic of
Lithuania and the State.
Municipalities, other national entities as well as those
foreign entities conducting economic activities in Lithuania
which are specified by the constitutional law in accordance
with the criteria of European and Transatlantic integration
chosen by the Republic of Lithuania may be permitted to acquire
the ownership of non-agricultural land plots required for the
construction and operation of buildings and facilities
necessary for their direct activities. The procedure,
conditions and restrictions of the acquisition of the ownership
of such a plot shall be established by the constitutional law.
Plots of land may belong to a foreign state by right of
ownership for the establishment of its diplomatic and consular
missions in accordance with the procedure and on the conditions
established by laws.
The right of exclusive ownership of entrails of the earth,
as well as the internal waters, forests, parks, roads,
historical, archaeological and cultural objects of State
importance shall belong to the Republic of Lithuania.
The exclusive rights to the airspace over its territory,
its continental shelf, and the economic zone in the Baltic Sea
shall belong to the Republic of Lithuania."
3. On 20 June 1996, the Seimas adopted the Constitutional
Law on the Entities, Procedure, Terms and Conditions and
Restrictions of the Acquisition into Ownership of Land Plots
Provided for in Paragraph 2 of Article 47 of the Constitution
of the Republic of Lithuania, in Article 10 whereof it was
established:
"1. The entities as defined in this Law, which desire to
acquire a plot of non- agricultural land, shall file a written
application with the Government of the Republic of Lithuania.
2. An enterprise that applies for the permit for the
acquisition into ownership a land plot must, along with the
application, submit documents and other official information
specified by the Government, necessary for the determining the
origin of the entity and the possessor of the rights of
effective control, as well as documentation provided by the
state land surveyor, concerning the plot in question. If the
permit is requested for the acquisition of a land plot for the
construction of buildings or facilities necessary for economic
activities, the investing entities must also furnish required
information as to the capital being invested, specific
investments and the plans of direct economic activities in
Lithuania, creation of new jobs and environmental safety
guarantees.
3. The national entities specified in Article 2 of this
Law, except enterprises and municipalities, that are willing to
obtain the permit for the acquisition into their ownership a
land plot for the operation of buildings and facilities
necessary for their direct activities or for the construction
of such buildings and facilities, must, along with the
application, submit documents evidencing that the entity and
the purpose of the property being acquired meet the conditions
established by this Law.
4. The entity who applies for the permit for the
acquisition of a land plot for the investment associated with
the construction of buildings and facilities, must make a
written obligation to the Government of the Republic of
Lithuania to complete the construction of the buildings and
facilities by a certain deadline and to start economic
activities of a certain planned type. The entity that fails to
fulfil such obligations shall pay penalties in the amount
prescribed by the law.
5. The agency that keeps land cadastre must, at the
request of the owner, issue necessary documentation concerning
the plot of land.
6. The Government shall set the form of the application,
specify the documents and information that must be submitted,
as well as establish the procedures for filing and
consideration of applications and the issue of permits.
7. Upon receipt of an application for the acquisition of a
land plot into the ownership, the Government or an institution
authorised by it, shall consider it and being ascertained that
the entity which desires to acquire a land plot and said plot
meet the conditions established by this Law, shall adopt the
decision relative to the issue of permit.
8. The permission to acquire a land plot may not be
granted if the requested activity is subject to restrictions or
prohibitions established by the law or other legal act."
4. On 10 December 1998, the Government adopted Resolution
No. 1423 "On the Confirmation of the Procedure for Submission,
Consideration and Issuance of Permits Concerning Applications
Requesting to Acquire Non-agricultural Land Plots as Ownership
to National and Foreign Entities Established in the
Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania", whereby the
Procedure for Submission, Consideration and Issuance of Permits
Concerning Applications Requesting to Acquire Non-agricultural
Land Plots as Ownership to National and Foreign Entities
Established in the Constitutional Law on the Entities,
Procedure, Terms and Conditions and Restrictions of the
Acquisition into Ownership of Land Plots Provided for in
Paragraph 2 of Article 47 of the Constitution of the Republic
of Lithuania was confirmed. It was established in Item 18 of
the said procedure:
"The issued permits for acquisition of non-agricultural
land plots as ownership are registered in the book for
registering of permits for acquisition of non-agricultural land
plots as ownership (subsequent to annexed Form 3).
The permits must be registered in the book in keeping to
the rules of filling in the book which are given in the form.
The applicant may lodge a complaint against the decision
of the county chief with the Government of the Republic of
Lithuania or its authorised ministry. In case this complaint is
considered by the Government of the Republic of Lithuania or
the ministry authorised by it, the decision adopted by it shall
be final."
By its Resolution No. 139 "On Partial Amendment of
Government of the Republic of Lithuania Resolution No. 1423 'On
the Confirmation of the Procedure for Submission, Consideration
and Issuance of Permits Concerning Applications Requesting to
Acquire Non-agricultural Land Plots as Ownership to National
and Foreign Entities Established in the Constitutional Law on
the Entities, Procedure, Terms and Conditions and Restrictions
of the Acquisition into Ownership of Land Plots Provided for in
Paragraph 2 of Article 47 of the Constitution of the Republic
of Lithuania' of 10 December 1998" of 6 February 2001, the
Government partially amended the Procedure confirmed by its
resolution of 10 December 1998, however the provision "in case
this complaint is considered by the Government or the ministry
authorised by it, the decision adopted by it shall be final" of
Item 18 thereof remained unchanged.
5. On 23 January 2003, the Seimas adopted the Law on the
Alteration of Article 47 of the Constitution of the Republic of
Lithuania, whereby Article 47 of the Constitution was amended.
Article 47 (wording of 23 January 2003) of the Constitution
provides:
"The right of exclusive ownership of the subterranean, as
well as internal waters, forests, parks, roads, historical,
archaeological and cultural objects of State importance shall
belong to the Republic of Lithuania.
The exclusive rights to the airspace over its territory,
its continental shelf, and the economic zone in the Baltic Sea
shall belong to the Republic of Lithuania.
In the Republic of Lithuania foreign entities may acquire
the ownership of land, internal waters, forests, and parks
subsequent to a constitutional law.
Plots of land may belong to a foreign state by right of
ownership for the establishment of its diplomatic and consular
missions in accordance with the procedure and conditions
established by law."
6. On 20 March 2003, the Seimas adopted the Law on the
Amendment of the Constitutional Law on the Entities, Procedure,
Terms and Conditions and Restrictions of the Acquisition into
Ownership of Land Plots Provided for in Paragraph 2 of Article
47 of the Constitution of the Republic of Lithuania, in Article
1 whereof titled "Revised Version of the Constitutional Law of
the Republic of Lithuania on the Entities, Procedure, Terms and
Conditions of the Acquisition into Ownership of Land Plots,
Provided for in Paragraph 2 of Article 47 of the Constitution
of the Republic of Lithuania" it was inter alia provided:
"The Constitutional Law of the Republic of Lithuania on
the Entities, Procedure, Terms and Conditions of the
Acquisition into Ownership of Land Plots, Provided for in
Paragraph 2 of Article 47 of the Constitution of the Republic
of Lithuania shall be amended and set forth to read as follows:
'THE CONSTITUTIONAL LAW OF THE REPUBLIC OF
LITHUANIA
ON THE IMPLEMENTATION OF PARAGRAPH 3 OF ARTICLE 47
OF THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
<...>'."
Article 11 titled "Procedure for the Issue of Permits to
Acquire a Land Plot" of the Constitutional Law on the
Implementation of Paragraph 3 of Article 47 of the
Constitution, contained in Chapter III of the Constitutional
Law on the Implementation of Paragraph 3 of Article 47 of the
Constitution, which is found in Article 1 of the Law on the
Amendment of the Constitutional Law on the Entities, Procedure,
Terms and Conditions and Restrictions of the Acquisition into
Ownership of Land Plots Provided for in Paragraph 2 of Article
47 of the Constitution, provides:
"1. Foreign entities complying with the criteria
established by Article 4 of this Law, which desire to acquire a
plot of non-agricultural land, shall file a written application
for the permit with the Government of the Republic of Lithuania
or an institution authorised by it.
2. Foreign entities that apply for the permit for the
acquisition into ownership a land plot must, along with the
application, submit documents specified by the Government or an
institution authorised by it. If the permit is requested for
the acquisition of a land plot for the construction of
buildings and facilities necessary for economic activities, the
investing entities must also furnish required documents as to
the capital being invested, specific investments and the plans
of economic activities in Lithuania, creation of new jobs, and
ecological safety guarantees.
3. The foreign entity that applies for the permit for the
acquisition into its ownership a land plot for the investment
associated with the construction of buildings and facilities,
must make a written obligation to the Government of the
Republic of Lithuania or an institution authorised by it to
complete the construction of buildings and facilities by a
certain deadline and to start economic activities as provided
by the documents of foundation.
4. The keeper of the real property register must issue to
a foreign entity applying for the permit for the acquisition of
a land plot the necessary documents related to such plot of
land.
5. The Government or an institution authorised by it shall
set the form of application, specify the documents and
information that must be submitted, as well as establish the
procedure for filing and consideration of applications and the
issue of permits.
6. Upon receipt of an application for the acquisition of a
land plot into their ownership, the Government or an
institution authorised by it shall consider such application
and, being ascertained that the foreign entity which desires to
acquire a land plot and the said plot meet the terms and
conditions established by this Law, shall adopt the decision
relative to the issue of permit.
7. The permit to acquire a land plot into the ownership
may not be granted if the requested activity is subject to
restrictions or prohibitions established by laws or other legal
acts.
8. The refusal of the Government or an institution
authorised by it to issue a permit to acquire a land plot into
the ownership in accordance with the procedure established by
law may be contested in court."
Article 17 titled "Entry into Force and Application of the
Constitutional Law of the Republic of Lithuania on the
Implementation of Paragraph 3 of Article 47 of the Constitution
of the Republic of Lithuania" of the Constitutional Law on the
Implementation of Paragraph 3 of Article 47 of the
Constitution, which is contained in Article 1 of the Law on the
Amendment of the Constitutional Law on the Entities, Procedure,
Terms and Conditions and Restrictions of the Acquisition into
Ownership of Land Plots Provided for in Paragraph 2 of Article
47 of the Constitution, inter alia provides: "Chapter III of
the Constitutional Law of the Republic of Lithuania on the
Implementation of Paragraph 3 of Article 47 of the Constitution
of the Republic of Lithuania shall be in force until the day of
accession of the Republic of Lithuania to the European Union."
The Republic of Lithuania became a member of the European
Union on 1 May 2004.
7. On 30 October 2003, the Government adopted Resolution
No. 1349 "On the Amendment of Government of the Republic of
Lithuania Resolution No. 1423 'On the Confirmation of the
Procedure for Submission, Consideration and Issuance of Permits
Concerning Applications Requesting to Acquire Non-agricultural
Land Plots as Ownership to National and Foreign Entities
Established in the Constitutional Law on the Entities,
Procedure, Terms and Conditions and Restrictions of the
Acquisition into Ownership of Land Plots Provided for in
Paragraph 2 of Article 47 of the Constitution of the Republic
of Lithuania' of 10 December 1998", whereby Government
Resolution No. 1423 "On the Confirmation of the Procedure for
Submission, Consideration and Issuance of Permits Concerning
Applications Requesting to Acquire Non-agricultural Land Plots
as Ownership to National and Foreign Entities Established in
the Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania" of 10 December 1998
was amended and set forth in a new wording; the title of the
Government resolution of 10 December 1998 was inter alia also
amended: this Government resolution was given the title "On the
Confirmation of the Procedure for Submission, Consideration and
Issuance of Permits Concerning Applications Requesting to
Acquire Non-agricultural Land Plots as Ownership to Foreign
Entities Established in the Constitutional Law of the Republic
of Lithuania on the Implementation of Paragraph 3 of Article 47
of the Constitution of the Republic of Lithuania"; the title of
the Procedure was changed as well: it was entitled the
Procedure for Submission, Consideration and Issuance of Permits
Concerning Applications Requesting to Acquire Non-agricultural
Land Plots as Ownership to Foreign Entities Established in the
Constitutional Law of the Republic of Lithuania on the
Implementation of Paragraph 3 of Article 47 of the Constitution
of the Republic of Lithuania.
The Procedure for Submission, Consideration and Issuance
of Permits Concerning Applications Requesting to Acquire
Non-agricultural Land Plots as Ownership to Foreign Entities
Established in the Constitutional Law of the Republic of
Lithuania on the Implementation of Paragraph 3 of Article 47 of
the Constitution of the Republic of Lithuania, confirmed by the
Government resolution of 10 December 1998 (wording of 30
October 2003), does not contain the provision "in case this
complaint is considered by the Government of the Republic of
Lithuania or the ministry authorised by it, the decision
adopted by it shall be final", which is disputed by the
petitioner.
Item 4 of the Government resolution of 10 December 1998
(wording of 30 October 2003) provides that "this Resolution
shall be effective until the day that the Republic of Lithuania
becomes a member of the European Union".
It has been mentioned that the Republic of Lithuania
became a member of the European Union on 1 May 2004. Thus, as
of 1 May 2004, the said Government resolution became no longer
effective.
8. At the Constitutional Court hearing the representative
of the Government, the party concerned, submitted a request to
dismiss the initiated legal proceedings in this case, arguing
that the Government resolution of 10 December 1998 was amended
by the Government resolution of 30 October 2003 and set forth
in a new wording, and that the Procedure for Submission,
Consideration and Issuance of Permits Concerning Applications
Requesting to Acquire Non-agricultural Land Plots as Ownership
to Foreign Entities Established in the Constitutional Law of
the Republic of Lithuania on the Implementation of Paragraph 3
of Article 47 of the Constitution of the Republic of Lithuania,
confirmed by the Government resolution of 10 December 1998, no
longer contains the provision disputed by the petitioner, and
referring to Paragraph 4 of Article 69 of the Law on the
Constitutional Court, according to which the annulment of the
disputed legal act shall be grounds to adopt a decision to
dismiss the initiated legal proceedings.
Paragraph 4 of Article 69 of the Law on the Constitutional
Court provides that the annulment of the disputed legal act
shall be grounds to adopt a decision to dismiss the initiated
legal proceedings. While construing this provision of the Law
on the Constitutional Court, the Constitutional Court has held
that the formula "shall be grounds to adopt a decision to
dismiss the initiated legal proceedings" is to be construed as
establishing the right to the Constitutional Court, in cases
when not courts but the other entities pointed out in Article
106 of the Constitution applied to the Constitutional Court,
while taking account of the circumstances of the case, to
dismiss the initiated legal proceedings, but not as
establishing that in every case when the disputed legal act was
annulled the instituted legal proceedings must be dismissed.
Under the Constitution, in the cases when a court investigating
a case applies to the Constitutional Court after it has had
doubts concerning the compliance of a law applicable in the
case with the Constitution, also concerning the compliance of
an act adopted by the Seimas, or an act of the President of the
Republic or the Government with the Constitution or laws, the
Constitutional Court has a duty to investigate the request of
the court regardless of the fact whether or not the disputed
law or other legal is valid (Constitutional Court rulings of 5
April 2000, 4 March 2002, 10 May 2002, 3 June 2002, 21 August
2002, and 4 March 2003).
9. Subsequent to the petition of the petitioner, in this
case the Constitutional Court will investigate whether the
provision "in case this complaint is considered by the
Government of the Republic of Lithuania or the ministry
authorised by it, the decision adopted by it shall be final" of
Section 3 of Item 18 of the Procedure for Submission,
Consideration and Issuance of Permits Concerning Applications
Requesting to Acquire Non-agricultural Land Plots as Ownership
to National and Foreign Entities Established in the
Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania (wording of 10
December 1998), which was confirmed by Government Resolution
No. 1423 "On the Confirmation of the Procedure for Submission,
Consideration and Issuance of Permits Concerning Applications
Requesting to Acquire Non-agricultural Land Plots as Ownership
to National and Foreign Entities Established in the
Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania" of 10 December 1998
was not in conflict with Paragraph 1 of Article 30 the
Constitution, Paragraph 3 of Article 4 of the Law on Courts and
Paragraph 1 of Article 5 of the Law on the Legal Proceedings of
Administrative Cases.
II
On the compliance of the provision "in case this complaint
is considered by the Government of the Republic of Lithuania or
the ministry authorised by it, the decision adopted by it shall
be final" of Section 3 of Item 18 of the Procedure for
Submission, Consideration and Issuance of Permits Concerning
Applications Requesting to Acquire Non-agricultural Land Plots
as Ownership to National and Foreign Entities Established in
the Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania (wording of 10
December 1998), which was confirmed by Government Resolution
No. 1423 "On the Confirmation of the Procedure for Submission,
Consideration and Issuance of Permits Concerning Applications
Requesting to Acquire Non-agricultural Land Plots as Ownership
to National and Foreign Entities Established in the
Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania" of 10 December 1998
with Paragraph 1 of Article 30 the Constitution.
1. The petitioner requests to investigate the compliance
of the provision "in case this complaint is considered by the
Government of the Republic of Lithuania or the ministry
authorised by it, the decision adopted by it shall be final" of
Section 3 of Item 18 of the Procedure (wording of 10 December
1998) with Paragraph 1 of Article 30 the Constitution.
2. Paragraph 1 of Article 30 the Constitution provides
that the person whose constitutional rights or freedoms are
violated shall have the right to apply to court.
3. In a state under the rule of law a possibility is
ensured for everyone to protect his rights in court from other
persons, as well as unlawful actions of state institutions or
officials (Constitutional Court ruling of 1 October 1997).
Under Paragraph 1 of Article 30 of the Constitution, a person
must be guaranteed the right to an independent and impartial
arbiter of the dispute, who would settle the legal dispute on
the grounds of the Constitution and laws; every person enjoys
this right; the person is guaranteed the defence of his
violated rights in court regardless of the legal status of the
person; the infringed rights and legitimate interests of
persons must be defended in court irrespective of whether or
not they are directly established in the Constitution; the
rights of the person must be defended not formally, but in
reality and effectively from unlawful actions of both private
persons and state institutions or officials (Constitutional
Court rulings of 1 October 1997, 8 May 2000, and 12 July 2001).
The guarantee of the protection of the rights and freedoms of
persons is a guarantee of procedural nature, an essential
element of the constitutional institute of rights and freedoms
of persons (Constitutional Court ruling of 30 June 2000), as
well as a necessary condition of implementation of justice and
an inseparable element of the content of the constitutional
principle of a state under the rule of law.
The right to apply to court is an absolute one
(Constitutional Court ruling of 30 June 2000). It is not
permitted to restrict nor deny this right. Under the
Constitution, the legislator has a duty to establish the legal
regulation so that it could be possible to settle all disputes
concerning violations of rights and freedoms of persons in
court. Legal acts can also establish a procedure of
out-of-court settlement of disputes. However, it is not
permitted to establish any such legal regulation which would
deny the right of a person, who thinks that his rights or
freedoms have been violated, to defend his rights or freedoms
in court (Constitutional Court rulings of 2 July 2002 and 4
March 2003).
4. Section 3 of Item 18 of the Procedure (wording of 10
December 1998) used to provide:
"The applicant may lodge a complaint against the decision
of the county chief with the Government of the Republic of
Lithuania or its authorised ministry. In case this complaint is
considered by the Government of the Republic of Lithuania or
the ministry authorised by it, the decision adopted by it shall
be final."
4.1. The part of the disputed provision "in case this
complaint is considered by the Government of the Republic of
Lithuania or the ministry authorised by it" is to be construed
together with the provision "the applicant may lodge a
complaint against the decision of the county chief with the
Government of the Republic of Lithuania or its authorised
ministry" of Section 3 of Item 18 of the Procedure. The part of
the provision "in case this complaint is considered by the
Government of the Republic of Lithuania or the ministry
authorised by it" means that in case the applicant files such a
complaint, this complaint must be considered, and it may not be
construed as meaning that, purportedly, the Government or the
ministry authorised by it may fail to consider the complaint of
the applicant concerning a decision of the county chief
regarding the application of the applicant requesting to issue
a permit to acquire a non-agricultural land plots as ownership.
4.2. The part of the disputed provision "the decision
adopted by it shall be final" means that one cannot lodge a
complaint with court against a decision as to the complaint of
the applicant concerning a decision of the county chief
regarding the application of the applicant requesting to issue
a permit to acquire a non-agricultural land plots as ownership.
Such legal regulation denies the constitutional right of a
person, who thinks that his rights or freedoms have been
violated, to defend his rights or freedoms in court. Thus, it
must be assessed that the provision "in case this complaint is
considered by the Government of the Republic of Lithuania or
the ministry authorised by it, the decision adopted by it shall
be final" of Section 3 of Item 18 of the Procedure (wording of
10 December 1998) was in conflict with Paragraph 1 of Article
30 the Constitution, and that therefore it violated the
constitutional principle of a state under the rule of law.
5. Taking account of the arguments set forth, one is to
conclude that the provision "in case this complaint is
considered by the Government of the Republic of Lithuania or
the ministry authorised by it, the decision adopted by it shall
be final" of Section 3 of Item 18 of the Procedure for
Submission, Consideration and Issuance of Permits Concerning
Applications Requesting to Acquire Non-agricultural Land Plots
as Ownership to National and Foreign Entities Established in
the Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania (wording of 10
December 1998), which was confirmed by the Government
resolution of 10 December 1998, was in conflict with Paragraph
1 of Article 30 the Constitution and the constitutional
principle of a state under the rule of law.
III
On the compliance of the provision "in case this complaint
is considered by the Government of the Republic of Lithuania or
the ministry authorised by it, the decision adopted by it shall
be final" of Section 3 of Item 18 of the Procedure for
Submission, Consideration and Issuance of Permits Concerning
Applications Requesting to Acquire Non-agricultural Land Plots
as Ownership to National and Foreign Entities Established in
the Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania (wording of 10
December 1998), which was confirmed by Government Resolution
No. 1423 "On the Confirmation of the Procedure for Submission,
Consideration and Issuance of Permits Concerning Applications
Requesting to Acquire Non-agricultural Land Plots as Ownership
to National and Foreign Entities Established in the
Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania" of 10 December 1998
with Article 4 of the Law on Courts (wording of 24 January
2002) and Article 5 of the Law on the Legal Proceedings of
Administrative Cases (wording of 19 September 2001).
1. The petitioner requests to investigate the compliance
of the provision "in case this complaint is considered by the
Government of the Republic of Lithuania or the ministry
authorised by it, the decision adopted by it shall be final" of
Section 3 of Item 18 of the Procedure (wording of 10 December
1998) with Paragraph 3 of Article 4 of the Law on Courts and
Paragraph 1 of Article 5 of the Law on the Legal Proceedings of
Administrative Cases.
2. Article 4 of the Law on Courts (wording of 24 January
2002) provides:
"1. Citizens the Republic of Lithuania shall have the
right to legal defence against encroachment upon their rights
and freedoms which are established in the Constitution of the
Republic of Lithuania and laws, and international treaties of
the Republic of Lithuania. In cases provided for by laws, they
have the right to legal assistance which is guaranteed by the
State.
2. Foreigners and stateless persons shall enjoy the same
rights to legal defence as the citizens of the Republic of
Lithuania unless the laws and international treaties of the
Republic of Lithuania provide otherwise.
3. Enterprises, establishments, organisations and other
institutions shall also have the right to legal defence."
3. Article 5 of the Law on the Legal Proceedings of
Administrative Cases (wording of 19 September 2000) provides:
"1. Every interested entity shall be entitled to apply to
the court, in the manner prescribed by law, for the protection
of his infringed or contested right or interest protected under
law.
2. Waiver of the right to apply to the court shall be
inadmissible.
3. The court shall accept an administrative case for
hearing:
1) subsequent to the complaint or petition of the person
or his representative, applying for the protection of his right
or interest protected under law;
2) subsequent to the petition for the protection of the
rights of other persons lodged by the institutions and
establishments specified by laws or by the servants thereof;
3) subsequent to the petition for the protection of state
or other public interests lodged in the cases established by
law by the prosecutor, entities of administration, state
control officers, other state institutions, establishments,
organisations or natural persons;
4) subsequent to the petition for the protection of the
rights of municipalities in the sphere of public
administration, lodged by municipal institutions,
establishments and services;
5) in the cases established by law, subsequent to the
petition for settlement of administrative disputes lodged by
entities of public administration."
4. Article 4 of the Law on Courts (wording of 24 January
2002) and Article 5 of the Law on the Legal Proceedings of
Administrative Cases (wording of 19 September 2000) establish
the right of a person, who thinks that his rights or freedoms
have been violated, to defend his rights or freedoms in court,
they also regulate the relations related with the
implementation of the right of a person to judicial defence.
5. It has been held in this Ruling of the Constitutional
Court that the provision "in case this complaint is considered
by the Government of the Republic of Lithuania or the ministry
authorised by it, the decision adopted by it shall be final" of
Section 3 of Item 18 of the Procedure for Submission,
Consideration and Issuance of Permits Concerning Applications
Requesting to Acquire Non-agricultural Land Plots as Ownership
to National and Foreign Entities Established in the
Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania (wording of 10
December 1998), which was confirmed by the Government
resolution of 10 December 1998, was in conflict with Paragraph
1 of Article 30 the Constitution and the constitutional
principle of a state under the rule of law.
Due to the same arguments, one is to hold that the
provision "in case this complaint is considered by the
Government of the Republic of Lithuania or the ministry
authorised by it, the decision adopted by it shall be final" of
Section 3 of Item 18 of the Procedure for Submission,
Consideration and Issuance of Permits Concerning Applications
Requesting to Acquire Non-agricultural Land Plots as Ownership
to National and Foreign Entities Established in the
Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania (wording of 10
December 1998), which was confirmed by the Government
resolution of 10 December 1998, was in conflict with Paragraph
3 of Article 4 of the Law on Courts (wording of 24 January
2002) and Paragraph 1 of Article 5 of the Law on the Legal
Proceedings of Administrative Cases (wording of 19 September
2000).
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of
Lithuania, the Constitutional Court of the Republic of
Lithuania has passed the following
ruling:
1. To recognise that the provision "in case this complaint
is considered by the Government of the Republic of Lithuania or
the ministry authorised by it, the decision adopted by it shall
be final" of Section 3 of Item 18 of the Procedure for
Submission, Consideration and Issuance of Permits Concerning
Applications Requesting to Acquire Non-agricultural Land Plots
as Ownership to National and Foreign Entities Established in
the Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania (wording of 10
December 1998), which was confirmed by Government of the
Republic of Lithuania Resolution No. 1423 "On the Confirmation
of the Procedure for Submission, Consideration and Issuance of
Permits Concerning Applications Requesting to Acquire
Non-agricultural Land Plots as Ownership to National and
Foreign Entities Established in the Constitutional Law on the
Entities, Procedure, Terms and Conditions and Restrictions of
the Acquisition into Ownership of Land Plots Provided for in
Paragraph 2 of Article 47 of the Constitution of the Republic
of Lithuania" of 10 December 1998, was in conflict with
Paragraph 1 of Article 30 the Constitution of the Republic of
Lithuania and the constitutional principle of a state under the
rule of law.
2. To recognise that the provision "in case this complaint
is considered by the Government of the Republic of Lithuania or
the ministry authorised by it, the decision adopted by it shall
be final" of Section 3 of Item 18 of the Procedure for
Submission, Consideration and Issuance of Permits Concerning
Applications Requesting to Acquire Non-agricultural Land Plots
as Ownership to National and Foreign Entities Established in
the Constitutional Law on the Entities, Procedure, Terms and
Conditions and Restrictions of the Acquisition into Ownership
of Land Plots Provided for in Paragraph 2 of Article 47 of the
Constitution of the Republic of Lithuania (wording of 10
December 1998), which was confirmed by Government of the
Republic of Lithuania Resolution No. 1423 "On the Confirmation
of the Procedure for Submission, Consideration and Issuance of
Permits Concerning Applications Requesting to Acquire
Non-agricultural Land Plots as Ownership to National and
Foreign Entities Established in the Constitutional Law on the
Entities, Procedure, Terms and Conditions and Restrictions of
the Acquisition into Ownership of Land Plots Provided for in
Paragraph 2 of Article 47 of the Constitution of the Republic
of Lithuania" of 10 December 1998, was in conflict with Article
4 of the of the Republic of Lithuania Law on Courts (wording of
24 January 2002) and Article 5 of the of the Republic of
Lithuania Law on the Legal Proceedings of Administrative Cases
(wording of 19 September 2000).
This Constitutional Court ruling is 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
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas