Lietuviškai
Case No. 14/03
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
DECISION
ON THE DISMISSAL OF THE LEGAL PROCEEDINGS IN THE CASE
SUBSEQUENT TO THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS
OF THE REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING TO
INVESTIGATE WHETHER ARTICLES 3, 5, 6, 8 (WORDING OF 28 JANUARY
2003) OF THE REPUBLIC OF LITHUANIA PROVISIONAL LAW ON THE
ACQUISITION OF AGRICULTURAL LAND ARE NOT IN CONFLICT WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA
14 March 2006
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas
Sinkevičius, Stasys Stačiokas and Romualdas Kęstutis Urbaitis,
with the secretary of the hearing-Daiva Pitrėnaitė,
at a procedural sitting of the Constitutional Court
considered the petition of a group of Members of the Seimas of
the Republic of Lithuania, the petitioner, requesting to
investigate whether Articles 3, 4, 5, 6 and 8 of the Republic
of Lithuania Provisional Law on the Acquisition of Agricultural
Land (wording of 28 January 2003) are not in conflict with the
Constitution of the Republic of Lithuania "as a whole" and with
Articles 18, 23, 29, 32, 46 and 48 of the Constitution of the
Republic of Lithuania.
The Constitutional Court
has established:
I
1. A group of Members of the Seimas, the petitioner,
applied to the Constitutional Court with a petition, requesting
to investigate whether Articles 3, 4, 5, 6 and 8 of the
Provisional Law on the Acquisition of Agricultural Land
(wording of 28 January 2003; Official Gazette Valstybės žinios,
2003, No. 15-600; hereinafter also referred to as the Law) are
not in conflict with the Constitution "as a whole" and with
Articles 18, 23, 29, 32, 46 and 48 of the Constitution.
2. Under ordinance No. 2B-27 of 18 March 2003 of the
President of the Constitutional Court subsequent to this
petition, the prepraration of case No. 14/03 for the
Constitutional Court hearing was begun.
II
The petition of the petitioner is based on the following
arguments.
1. The law establishes the restrictions to acquire
agricultural land. By most of these restriction the number of
persons who can acquire the agricultural land has been
significantly decreased, the competition in agricultural market
has been restricted and the possibilities for a person to
choose a desirable business have been limited.
2. Taken separately, the constitutional ownership rights
of a person are restricted by: the possibility to annul the
land transactions if the Law is violated while executing them;
a permission to purchase agricultural land only to the person
who has registered a farmer's farm or has the qualification
certificate, testifying to his preparedness to engage into
farming (it deprives most persons of the possibility to acquire
land, and those who possess land-of selling it at its real
value); establishment of the different maximum area of
agricultural land acquired by natural persons, agricultural
companies and legal persons; the right of priority to acquire
state-owned agricultural land (violating fair competition and
the principle of equality of persons) to certain categories of
persons. Moreover, conditions have been created to ensure the
security of obligations by way of mortgaging only to the banks
and other credit institutions; in this way the rights of the
owner to dispose of his property are violated, moreover,
economic entities are treated differently without objetive
grounds.
The Constitutional Court
holds that:
1. The petitioner requests to investigate whether Articles
3, 4, 5, 6 and 8 (wording of 28 January 2003) of the Law are
not in conflict with inter alia Constitution "as a whole".
2. It is to be held that the petition requesting to
investigate the compliance of a legal act (part thereof) with
the Constitution "as a whole" is not clear and concrete enough.
3. Under Item 8 of Paragraph 1 of Article 66 of the
Republic of Lithuania Law on the Constitutional Court, a
petition requesting to investigate into the compliance of a
legal act with the Constitution must contain the position of
the petitioner concerning the compliance of an appropriate act
with the Constitution and legal support of such position
containing references to laws.
While construing this item of the Law on the
Constitutional Court, in its decision of 16 April 2004, the
Constitutional Court held that "the position of the petitioner
concerning the compliance of a legal act (part thereof) with
the Constitution according to the content of the norms and/or
the scope of regulation must be indicated clearly,
unambiguously, the petition must contain the arguments and
reasoning grounding the doubt of the petitioner that the legal
act (part thereof) is in conflict with the Constitution. Thus,
the petition requesting to investigate the compliance of a
legal act (part thereof) with the Constitution according to the
content of norms and/or the scope of regulation must clearly
indicate concrete articles (parts thereof), items of the legal
act the compliance of which with the Constitution is doubtful
from the petitioner's viewpoint, also concrete provisions-norms
and/or principles-of the Constitution, to which, in the opinion
of the petitioner, contradict the concretely indicated articles
or items of the disputed legal act. The petition requesting to
investigate the compliance of a legal act (part thereof) with
the Constitution according to the content of norms and/or the
scope of regulation must also clearly indicate the legal
arguments grounding the doubt of the petitioner as regards
every concretely indicated article (part thereof) or item of
the disputed legal act, the compliance of which with the
concretely indicated provision of the Constitution is doubtful
to the petitioner. Otherwise, the request to investigate the
compliance of a legal act (part thereof) with the Constitution
according to the content of norms and/or the scope of
regulation must be considered to be not in line with the
requirements of Article 66 of the Law on the Constitutional
Court."
According to Article 70 of the Law on the Constitutional
Court, in the case that a petition or attachments thereto fail
to comply with the inter alia requirements set forth in
Articles 66 of this law, the petition is to be returned to the
petitioner. The return of a petition shall not take away the
right to apply to the Constitutional Court according to the
common procedure after removal of the deficiencies thereof.
4. The petition of the petitioner, requesting to
investigate whether Articles 3, 4, 5, 6 and 8 (wording of 28
January 2003) of the Law are not in conflict with inter alia
the Constitution "as a whole" does not meet the requiremets of
Items 8 and 9 of Paragraph 1 of Article 66 of the Law on the
Constitutional Court and is not to be investigated in the
Constitutional Court.
5. It is also to be emphasized that the petitioner
requests to investigate whether Articles 3, 4, 5, 6 and 8
(wording of 28 January 2003) of the Law are not in conflict not
only with the Constitution "as a whole" but also with Articles
18, 23, 29, 32, 46 and 48 of the Constitution.
It is to be held that a petition requesting to investigate
the compliance of a legal act (part thereof) with the
Constitution "as a whole" does not have its independent
content, abstracted from the petition requesting to investigate
whether Articles 3, 4, 5, 6 and 8 (wording of 28 January 2003)
of the Law are not in conflict with inter alia Articles 18, 23,
29, 32, 46 and 48 of the Constitution.
Thus, the individual decision on returning of the petition
requesting to investigate whether Articles 3, 4, 5, 6 and 8
(wording of 28 January 2003) of the Law are not in conflict
with the Constitution "as a whole" to the petitioner (after the
reasoning has been specified that the petition does not meet
the requirements of Items 8 and 9 of Paragraph 1 of Article 66
of the Law on the Constitutional Court) need not be formulated
in the resolving part of this Constitutional Court decision.
II
1. On 28 January 2003, the Seimas adopted the Republic of
Lithuania Provisional Law on the Acquisition of Agricultural
Land, which (save certain exceptions) came into force on the
day when the Law on Amending Article 47 of the Constitution of
the Republic of Lithuania, adopted on 23 Janurary 2003, came
into force, i.e. on 24 February 2003.
2. In Article 3 (wording of 28 January 2003) of the Law it
was established:
"1. A natural person may acquire agricultural land by the
right of ownership provided he has registered a farmer's farm
under the procedure prescribed by the Law on Farmer's Farm or
has a qualification certificate issued by an institution
authorised by the Government, testifying to his preparedness to
engage in farming.
2. A qualification certificate testifying to a person's
preparedness to engage in farming shall be issued to persons
who have been engaged in agricultural activities for over 2
years and have a diploma or certificate of agricultural
education acquired in Lithuania or a European Union member
state, or to persons who have been engaged in agricultural
activities for over 5 years and have passed a qualification
examination in accordance with the procedure established by the
Government.
3. The provisions of Paragraph 1 of this Article shall not
apply in cases when, after the acquisition of the land, the
area of a plot of land held by the right of ownership would not
exceed 3 ha of farming land.
4. A natural person who has acquired a plot of
agricultural land exceeding 10 ha by the right of ownership in
accordance with this Law must, within 1 year, resettle in the
county where the land used for farming is located and acquire
or get a permit to build farm buildings needed for agricultural
activities, and, within 2 years from the acquisition of the
land, register a farmer's farm. The term for resettlement in
the county may be extended by the municipal board for a period
not exceeding 1 year, provided that the construction of farm
buildings or a dwelling house has started.
5. A legal person may acquire agricultural land by the
right of ownership provided that it has earned at least 50 per
cent of its income from agricultural activities for the 2
preceding years. This requirement shall not apply to the State,
municipalities, gardeners' associations acquiring public land
leased to these associations, as well as banks and other credit
institutions that take into their ownership the land which is
mortgaged, but not sold in the manner prescribed by law.
6. Banks and other credit institutions must sell
agricultural land acquired by the right of ownership within 2
years from the date of its acquisition, and lease the land for
agricultural activities prior to the sale thereof."
Although the petitioner requests to investigate the
compliance of Article 3 (wording of 28 January 2003) of the Law
with inter alia Articles 18, 23, 29, 32, 46 and 48 of the
Constitution, it is obvious from the arguments of the petition
that he had doubts not as to the compliance of the whole
Article 3 (wording of 28 January 2003) of the Law with all the
specified articles of the Constitution, but as to the
compliance of the following paragraphs of Article 3 (wording of
28 January 2003) of the Law with:
Paragraph 1 with Articles 18 and 23, Paragraph 1 of
Article 29, Paragraphs 1, 3 and 4 of Article 46 and with the
provision "each human being may freely choose a job or
business" of Paragraph 1 of Article 48 of the Constitution;
Paragraph 4 with Articles 18 and 23, Paragraphs 1 and 2 of
Article 32, Paragraphs 1 and 4 of Article 46 and with the
provision "each human being may freely choose a job or
business" of Paragraph 1 of Article 48 of the Constitution;
Paragraph 5 with Articles 18, 23 and 29, and with the
provision "The law <...> shall protect freedom of fair
competition" of Paragraph 4 of Article 46 of the Constitution.
3. In Article 8 (wording of 28 January 2003) of the Law it
was established:
"1. Land transactions shall be found invalid by courts, if
they are concluded not in compliance with the conditions of
this Law or if the persons who acquired the land violate the
conditions of this Law.
2. Natural and legal persons shall pay taxes set by law
for the transfer of the land, acquired under this Law, into
ownership of other persons within a 5-year period after its
acquisition. Such taxes shall be calculated on the basis of the
average price of land plots sold in that locality (land market
price)."
Although the petitioner requests to investigate the
compliance of Article 8 (wording of 28 January 2003) of the Law
with inter alia Articles 18, 23, 29, 32, 46 and 48 of the
Constitution, it is obvious from the arguments of the
petitioner that he had doubts not on the compliance of whole
Article 8 (wording of 28 January 2003) of the Law with all the
specified articles of the Constitution, but on the compliance
of Paragraph 1 (wording of 28 January 2003) of Article 8 of the
Law with Articles 18 and 23 of the Constitution.
4. On 15 July 2004, the Seimas adopted the Republic of
Lithuania Law on Amending the Provisional Law on the
Acquisition of Agricultural Land, whose Article 1 amended the
Provisional Law on the Acquisition of Agricultural Land
(wording of 28 January 2003) and set it forth in a new wording.
The Provisional Law on the Acquisition of Agricultural Land of
the new wording came into force on 7 August 2004. It does not
include the former provisions of Articles 3 and 8 (wording of
28 January 2003) of the Law, on the compliance of which with
the Constitution the petitioner doubted.
5. According to Paragraph 4 of Article 69 of the Law on
the Constitutional Court, the annulment of the disputed legal
act shall be grounds to adopt a decision to dismiss the
instituted legal proceedings.
The Constitutional Court has more than once held in its
legal acts that the formula "shall be grounds <...> to dismiss
the instituted legal proceedings" of Paragraph 4 of Article 69
of the Law on the Constitutional Court is to be construed as
establishing the right of the Constitutional Court to dismiss
the instituted legal proceedings taking account of the
circumstances of the case at issue in the cases, when the
Constitutional Court is not applied by the courts, but by the
subjects, specified in Article 106 of the Constitution. In its
ruling of 4 March 2003, the Constitutional Court held that this
can also be said regarding the cases when the disputed legal
act (part thereof) is not abolished, however the legal
regulation established therein is changed.
6. Taking account of the arguments set forth, the
instituted legal proceedings in the case subsequent to the
petition of the petitioner, requesting to investigate whether
Articles 3 and 8 (wording of 28 January 2003) of the Law are
not in conflict with Articles 18, 23, 29, 32, 46 and 48 of the
Constitution, are to be dismissed.
III
1. In Article 5 (wording of 28 January 2003) of the Law it
was established:
"1. State-owned agricultural land may be sold or otherwise
transferred into the ownership of natural or legal persons in
only those cadastre locations where restitution of land
ownership rights has been completed according to the land
reform land survey plans prepared under the procedure
established by the Law on Land Reform, except for the transfer
of land to municipalities for the performance of the functions
set by law and the sale of the land plots, formed in the land
reform land survey plans, to individual farm land users,
farmers and agricultural companies which have been using the
land for more than 5 successive years, upon expressing their
wish to purchase the said land plots.
2. Natural and legal persons acquiring land for the
purpose of expanding their farm holding to a rational size
shall be entitled to soft credits granted under the procedure
established by law."
2. In Article 6 (wording of 28 January 2003) of the Law it
was established:
"1. The right of first priority to purchase state-owned
agricultural land offered for sale shall be enjoyed by:
1) the individual farm land-users who have expressed their
wish to purchase it-with regard to the land plots, formed in
the land reform land survey plans;
2) farmers; and
3) agricultural companies which have been using the land
for more than 5 successive years.
2. Persons who do not enjoy the right of first priority to
purchase a state-owned plot of agricultural land, or in the
cases where several persons enjoy equal rights of first
priority to purchase the same plot of land, shall be sold the
plot of land concerned at auction under the procedure
established by the Government.
3. Persons who enjoy the right of first priority to
purchase a state-owned plot of agricultural land, shall be sold
a plot concerned at a price not exceeding the average price of
the plots of land sold in that location (land market price).
4. The right of first priority to purchase private
agricultural land at the price it is offered for sale and under
other same conditions, except for the cases when the sale
happens at public auction, shall be enjoyed by:
1) the state, when, according to a prepared detailed plan
or other territorial planning document, the land concerned is
intended for use for: national defence or protection of the
state border; national airports, ports and their facilities;
the construction of national railways, national roads and main
pipelines, high-voltage electricity lines; constructions of
national importance; the development of the infrastructure of
cities, towns, and villages; common population needs and
municipal needs; public construction and recreation;
exploitation of mineral resources explored on public funds;
implementation of economic projects of national importance the
significance whereof is recognised by a decision taken by the
Seimas or the Government;
2) the co-owner of a plot of land when the sale concerns a
segment of the plot of land which is held by the right of
common ownership;
3) the owner of a neighbouring plot of land provided this
person is engaged in agricultural activities;
4) a farmer if the plot of land offered for sale lies
within the prospective boundaries of the rational agricultural
holding, formed in the land survey plan, of a farm owned by
this person;
5) the user of the plot of land offered for sale who has
used the land for agricultural activities for at least 2
successive years; and
6) the institution authorised under law or by the
Government to take decisions concerning rearrangement of plots
of land in accordance with land survey plans provided the plots
of land being acquired are necessary for consolidation of the
plots of land and for compensation to land owners with the
equivalent area of state-owned land in the event of the
appropriation of land for public needs.
5. The procedure for exercising the right of first
priority set forth in Paragraphs 1 and 4 of this Article shall
be established by the Government."
3. The petition of the petitioner, requesting to
investigate whether Articles 5 and 6 (wording of 28 January
2003) of the Law are not in conflict with Articles 18, 23, 29,
32, 46 and 48 of the Constitution, is grounded on the argument
that, in the opinion of the petitioner, the right of first
priority for certain categories of persons to purchase
state-owned agricultural land entrenched in these articles
violates fair competition and the principle of equality of
persons.
However, from the arguments of the petition of the
petitioner it is not clear whether the petitioner doubs on the
institute of the right of first priority to purchase
state-owned agricultural land in general (i.e. whether, in his
opinion, any right of first priority in this field may not in
general be established) or on the way this institute is
entrenched in Articles 5 and 6 (wording of 28 January 2003) of
the Law (i.e. on the fact that this right is established not
for the person or not only for the persons, for whom it should
be established).
Thus, it is not clear to what extent and in which aspect
the compliance of Articles 5 and 6 (wording of 28 January 2003)
of the Law with Articles 18, 23, 29, 32, 46 and 48 of the
Constitution is disputed.
4. It was mentioned that under Item 8 of Paragraph 1 of
Article 66 of the Republic of Lithuania Law on the
Constitutional Court, a petition requesting to investigate on
the compliance of a legal act with the Constitution must
contain the position of the petitioner concerning the
compliance of an appropriate act with the Constitution and
legal support of such position containing references to laws,
that a petition requesting to investigate on the compliance of
a legal act (part thereof) with the Constitution according to
the contents of the norms and/or extent of the regulation must
also clearly specify the legal reasons that ground the doubt of
the petitioner on every item or article (part thereof) of the
concretely specified disputed legal act (part thereof), on the
compliance of which with the concretely specified provisions of
the Constitution the petitioner doubts, otherwise, the petition
requesting to ivestigate the compliance of the legal act (part
thereof) with the Constitution according to the contents of the
norms and/or extent of the regulation is to be considered as
not meeting the requirements of Article 66 of the Law on the
Constitutional Court. It was also mentioned that under Article
70 of the Law on the Constitutional Court, in the case that a
petition or attachments thereto fail to comply with the inter
alia the requirements set forth in Article 66 of this law, the
petition is to be returned to the petitioner; the return of a
petition shall not take away the right to apply to the
Constitutional Court according to the common procedure after
removal of the deficiencies thereof.
5. It is to be held that the petition of the petitioner,
requesting to investigate whether Articles 5 and 6 (wording of
28 January 2003) of the Law are not in conflict with Articles
18, 23, 29, 32, 46 and 48 of the Constitution, does not meet
the requirements of Item 8 of Paragraph 1 of Article 66 of the
Law on the Constitutional Court and under Article 70 of this
law is to be returned to the petitioner and the instituted
legal proceedings to the corresponding extent in the case are
to be dismissed.
IV
1. In Article 4 (wording of 28 January 2003) of the Law it
was established:
"1. Natural and legal persons may, under this Law, acquire
so much land that the total area of agricultural land owned by
one person should not exceed:
1) 300 ha for a natural person who has registered a
farmer's farm and has a qualification certificate testifying to
his preparedness to engage in farming, except for the cases
when the agricultural holding owned by two spouses exceeded the
said area as a result of registration of their marriage or when
the land was acquired before the entry into force of this Law;
2) 2000 ha for an agricultural company;
3) 1000 ha for a co-operative (co-operative society) or
any other legal person who engages in agricultural activities.
2. The provisions of Paragraph 1 of this Article shall not
apply to banks and other credit institutions that, in the
manner prescribed by law, acquire under the forced sale
procedure the land mortgaged to them."
2. In the opinion of the petitioner, the fact that, under
Article 4 (wording of 28 January 2003) of the Law, different
maximum area of agricultural land being acquired into ownership
are established for natural persons, agricultural companies and
any other legal persons, was in conflict with Articles 18, 23,
29, 32, 46 and 48 of the Constitution.
3. It was mentioned that on 15 July 2004, the Seimas
adopted the Republic of Lithuania Law on Amending the
Provisional Law on the Acquisition of Agricultural Land, whose
Article 1 amended the Provisional Law on the Acquisition of
Agricultural Land (wording of 28 January 2003) and set it forth
in a new wording.
In Article 4 of the Law (wording of 15 July 2004) it was
established:
"1. Persons may acquire so much land that the total area
of agricultural land, acquired from the State or other persons,
owned by one person should not exceed:
1) 300 ha for a natural person. A person, who had acquired
more agricultural land than 300 ha, under this law may not
acquire any agricultural land;
2) 2000 ha for legal person.
2. The provisions of Paragraph 1 of this Article shall not
apply when the land is acquired by inheritance or restoration
of ownership right."
3. While comparing the legal regulation established in
Article 4 of the Law (wording of 15 July 2004) with the one,
established in Article 4 (wording of 28 January 2003) of the
Law, it is obvious that the general provision that different
maximum areas of agricultural land are allowed to be acquired
by different subjects, on the compliance of which with the
Constitution the petitioner had doubts, remained consolidated
in the Law.
The preparation of the constitutional justice case for the
Constitutional Court hearing, subsequent to the petition of the
petitioner, requesting to investigate whether Article 4 of the
Law is not in conflict with Articles 18, 23, 29, 32, 46 and 48
of the Constitution, is to be continued.
Conforming to Paragraphs 3 and 4 of Article 22, Article
28, Article 66, Paragraph 4 of Article 69 and Article 70 of the
Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has
adopted the following
decision:
1. To dismiss the instituted legal proceedings in the part
of the case subsequent to the petition of a group of Members of
the Seimas, the petitioner, requesting to investigate whether
Articles 5 and 6 of the Republic of Lithuania Provisional Law
on the Acquisition of Agricultural Land (wording of 28 January
2003; Official Gazette Valstybės žinios, 2003, No. 15-600) are
not in conflict with Articles 18, 23, 29, 32, 46 and 48 of the
Constitution of the Republic of Lithuania and to this extent to
return the petition to the petitioner.
2. To dismiss the instituted legal proceedings in the case
subsequent to the petition of a group of Members of the Seimas,
the petitioner, requesting to investigate whether Articles 3
and 8 of the Republic of Lithuania Provisional Law on the
Acquisition of Agricultural Land (wording of 28 January 2003;
Official Gazette Valstybės žinios, 2003, No. 15-600) are not in
conflict with Articles 18, 23, 29, 32, 46 and 48 of the
Constitution of the Republic of Lithuania.
3. To continue the preparation the case for the
Constitutional Court hearing, subsequent to the petition of a
group of Members of the Seimas, the petitioner, requesting to
investigate whether Article 4 of the Republic of Lithuania
Provisional Law on the Acquisition of Agricultural Land
(wording of 28 January 2003; Official Gazette Valstybės žinios,
2003, No. 15-600) is not in conflict with Articles 18, 23, 29,
32, 46 and 48 of the Constitution of the Republic of Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis