THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
DECISION
ON THE PETITION OF THE KLAIPĖDA CITY LOCAL COURT, THE
PETITIONER, REQUESTING TO INVESTIGATE THE COMPLIANCE OF
ARTICLE 4, PARAGRAPHS 1 AND 2 OF ARTICLE 346 AND PARAGRAPHS
1 AND 2 (ACCORDING TO THE PETITIONER, WORDING OF 11
SEPTEMBER 2006) OF ARTICLE 350 OF THE CODE OF CIVIL
PROCEDURE OF THE REPUBLIC OF LITHUANIA WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA, AS WELL AS
REQUESTING TO INVESTIGATE THE COMPLIANCE OF THE PLANNING
SCHEME (GENERAL PLAN) OF CURONIAN SPIT NATIONAL PARK
APPROVED BY GOVERNMENT OF THE REPUBLIC OF LITHUANIA
RESOLUTION NO. 1269 "ON THE PLANNING SCHEME (GENERAL PLAN)
OF CURONIAN SPIT NATIONAL PARK" OF 19 DECEMBER 1994 WITH
THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, WITH
PARAGRAPH 1 (WORDING OF 6 APRIL 1993) OF ARTICLE 1, ITEM 4
(WORDING OF 6 APRIL 1993) OF PARAGRAPH 1 OF ARTICLE 2 AND
PARAGRAPH 1 (WORDING OF 6 APRIL 1993) OF ARTICLE 8 OF THE
REPUBLIC OF LITHUANIA LAW "ON THE PROCEDURE OF PUBLICATION
AND COMING INTO FORCE OF LAWS AND OTHER LEGAL ACTS OF THE
REPUBLIC OF LITHUANIA", WITH ARTICLE 2 (WORDING OF 7 JULY
2005), ITEM 4 (ACCORDING TO THE PETITIONER, WORDING OF 7
JULY 2005) OF PARAGRAPH 1 OF ARTICLE 3 AND PARAGRAPH 1
(WORDING OF 7 JULY 2005) OF ARTICLE 9 OF THE REPUBLIC OF
LITHUANIA LAW ON THE PROCEDURE OF PUBLICATION AND COMING
INTO FORCE OF LAWS AND OTHER LEGAL ACTS
5 July 2007
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Toma
Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas
Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, Stasys
Stačiokas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the procedural sitting of the Constitutional Court
considered the petition (No. 1B-21/2007) of the Klaipėda City
Local Court, the petitioner, requesting to investigate the
following:
- whether Article 4, Paragraphs 1 and 2 of Article 346 and
Paragraphs 1 and 2 (according to the petitioner, wording of 11
September 2006) of Article 350 of the Code of Civil Procedure of
the Republic of Lithuania are not in conflict with the principles
of justice and a state under the rule of law which, according to
the petitioner, are consolidated in the Preamble to the
Constitution of the Republic of Lithuania;
- whether the Planning Scheme (General Plan) of Curonian
Spit National Park approved by Government of the Republic of
Lithuania Resolution No. 1269 "On the Planning Scheme (General
Plan) of Curonian Spit National Park" of 19 December 1994 is not
in conflict with Paragraph 2 of Article 7 of the Constitution of
the Republic of Lithuania, with the constitutional principle of a
state under the rule of law, with Paragraph 1 (wording of 6 April
1993) of Article 1, Item 4 (wording of 6 April 1993) of Paragraph
1 of Article 2, Paragraph 1 (wording of 6 April 1993) of Article
8 of the Republic of Lithuania Law "On the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts of
the Republic of Lithuania", as well as with, according to the
petitioner, Article 2 (wording of 7 July 2005), Item 4 (wording
of 7 July 2005) of Paragraph 1 of Article 3 and Paragraph 1
(wording of 7 July 2005) of Article 9 of this law.
The Constitutional Court
has established:
The Klaipėda City Local Court, the petitioner, was
investigating a civil case. By its ruling of 15 February 2007,
the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition requesting to
investigate the following:
- whether Article 4, Paragraphs 1 and 2 of Article 346 and
Paragraphs 1 and 2 (according to the petitioner, wording of 11
September 2006) of Article 350 of the Code of Civil Procedure
(hereinafter also referred to as the CCP) are not in conflict
with the principles of justice and a state under the rule of law
which, according to the petitioner, are consolidated in the
Preamble to the Constitution;
- whether the Planning Scheme (General Plan) of Curonian
Spit National Park (hereinafter also referred to as the Scheme)
approved by Government Resolution No. 1269 "On the Planning
Scheme (General Plan) of Curonian Spit National Park" of 19
December 1994 (hereinafter also referred to as Government
Resolution No. 1269 of 19 December 1994) is not in conflict with
Paragraph 2 of Article 7 of the Constitution, with the
constitutional principle of a state under the rule of law, with
Paragraph 1 (wording of 6 April 1993) of Article 1, Item 4
(wording of 6 April 1993) of Paragraph 1 of Article 2, Paragraph
1 (wording of 6 April 1993) of Article 8 of the Law "On the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts of the Republic of Lithuania", as well as with,
according to the petitioner, Article 2 (wording of 7 July 2005),
Item 4 (wording of 7 July 2005) of Paragraph 1 of Article 3 and
Paragraph 1 (wording of 7 July 2005) of Article 9 of this law.
This petition of the petitioner was received at the
Constitutional Court on 23 April 2007.
The Constitutional Court
holds that:
I
1. Under Paragraph 2 of Article 110 of the Constitution, in
cases when there are grounds to believe that the law or other
legal act which should be applied in a concrete case is in
conflict with the Constitution, the judge shall suspend the
consideration of the case and shall apply to the Constitutional
Court requesting it to decide whether the law or other legal act
in question is in compliance with the Constitution.
2. Under Paragraph 1 of Article 67 of the Law on the
Constitutional Court of the Republic of Lithuania, provided that
there are grounds to consider that a law or other legal act
applicable in a concrete case is in conflict with the
Constitution, the court shall apply to the Constitutional Court
with a petition to decide whether the said law or other legal act
is in compliance with the Constitution.
3. In its ruling of 28 March 2006, the Constitutional Court
held that, under the Constitution, a court of general
jurisdiction or a specialised court established under Paragraph 2
of Article 111 of the Constitution may apply to the
Constitutional Court with a petition requesting to investigate
and decide whether not any constitutional law (part thereof) is
not in conflict with the Constitution, but only such
constitutional law, which must be applied in the corresponding
case considered by that court, also whether not any law (part
thereof) (as well as the Statute of the Seimas (part thereof)) is
not in conflict with the Constitution and constitutional laws,
but only that which must be applied in the corresponding case
considered by that court, also whether not any substatutory legal
act (part thereof) of the Seimas is not in conflict with the
Constitution, constitutional laws and laws as well as the Statute
of the Seimas, but only that which must be applied in the
corresponding case considered by that court, also whether not any
act (part thereof) of the President of the Republic is not in
conflict with the Constitution, constitutional laws and laws, but
only that which must be applied in the corresponding case
considered by that court, as well as whether not any act (part
thereof) of the Government (part thereof) is not in conflict with
the Constitution, constitutional laws and laws, but only that
which must be applied in the corresponding case considered by
that court. These principled provisions were also repeated in the
Constitutional Court decision of 22 May 2007.
The Constitutional Court decision of 22 May 2007 (while
construing Paragraph 2 of Article 110 of the Constitution and
Paragraph 1 of Article 67 of the Law on the Constitutional Court)
held that under the Constitution and the Law on the
Constitutional Court, a court does not have locus standi to apply
to the Constitutional Court with a petition requesting to
investigate whether the law (part thereof) or the other legal act
(part thereof) which should/could not be applied in the case
considered by the said court, is not in conflict with the
Constitution. In the said Constitutional Court decision it was
also held that if a court has applied to the Constitutional Court
with a petition requesting to investigate whether a law (part
thereof) or other legal act (part thereof), which should/could
not be applied in the case considered by the said court, is not
in conflict with the Constitution (thus, when the court does not
have locus standi), one is to decide, while taking account of all
the entirety of the arguments substantiating such a petition,
whether the reasoning of the petition of the petitioner applying
to the Constitutional Court is legal one.
These doctrinal provisions set forth in the Constitutional
Court ruling of 28 March 2006 and decision of 22 May 2007 are to
be construed as meaning that the court which considers a case
shall have the powers to apply to the Constitutional Court
regarding the compliance of the law (part thereof) or other legal
act (part thereof) with a legal act of higher power, inter alia
(and first of all) with the Constitution, also in the cases when
that legal act is not directly designed to regulate the relations
concerning which a decision must be adopted in the corresponding
case, but the fact that one takes account of that law or other
legal act (part thereof), according to the court, does not allow
that to administer justice in the corresponding case.
4. The Law on the Constitutional Court establishes general
requirements, concerning the content, form and attachments, of
petitions presented to the Constitutional Court, requesting to
investigate the compliance of legal acts with the Constitution
(Article 66), as well as special requirements concerning rulings
of the Supreme Court of Lithuania, the Court of Appeal of
Lithuania, of regional, and local courts by which one applies to
the Constitutional Court (Article 67). These requirements are
concretized in Section 1 of Chapter VI of the Rules of the
Constitutional Court of the Republic of Lithuania.
5. Under Item 6 of Paragraph 1 of Article 66 of the Law on
the Constitutional Court, a petition for the investigation of the
compliance of a legal act with the Constitution must contain the
precise title of the disputed legal act, its number, the date of
its adoption, and other data which are necessary for
identification thereof, as well as the source of its publication
(if it was published), and, under Item 8 thereof, it 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. Under Item 9 of this
paragraph, a petition for the investigation of the compliance of
a legal act with the Constitution must contain a formulated
petition to the Constitutional Court.
6. Article 67 of the Law on the Constitutional Court
establishes what must be specified in a petition requesting to
investigate the compliance of a law or other legal act (paragraph
thereof) with the Constitution, when courts apply to the
Constitutional Court with such petition. Under Paragraph 2 of
this article, the court ruling, by the means of which the court
applies to the Constitutional Court requesting to investigate
whether the legal act is not in conflict with the Constitution,
must include the legal arguments presenting the opinion of the
court on the conflict of a law or other legal act with the
Constitution (Item 5), as well as the formulated petition of the
court to the Constitutional Court (Item 6).
The general requirements, concerning the content, form and
annexes, of petitions presented to the Constitutional Court,
requesting to investigate the compliance of legal acts with the
Constitution and the special requirements concerning rulings of
courts by which one applies to the Constitutional Court, which
are established in the Law on the Constitutional Court and the
Rules of the Constitutional Court, are also applicable to the
rulings of specialised courts, which are provided for in
Paragraph 2 of Article 111 of the Constitution, by which one
applies to the Constitutional Court (Constitutional Court
decisions of 31 March 2005, 10 October 2006 and 11 October 2006).
Under the Law on the Constitutional Court, including the
cases when the disputed legal acts (parts thereof) were amended
and/or supplemented, when applying to the Constitutional Court
with a petition requesting to investigate the compliance of the
legal act (part thereof) with the legal act of higher power,
inter alia the Constitution, courts must precisely specify in
their ruling the wording of the legal act (part thereof) whose
compliance with the legal act of higher power is disputed
(Constitutional Court decisions of 10 October 2006 and 11 October
2006).
7. The requirement to specify the legal arguments
presenting the opinion of the court on the conflict of a law or
other legal act with the Constitution arising from Item 5 of
Paragraph 2 of Article 67 of the Law on the Constitutional Court,
means that the courts that apply to the Constitutional Court with
the request to investigate whether the law or other legal act
(part thereof) is not in conflict with the Constitution, while
arguing their opinion presented in the petition that the law or
other legal act (part thereof) is in conflict with the
Constitution, may not confine themselves to general reasoning or
statements that the law or other legal act (part thereof), in
their opinion, is in conflict with the Constitution, but must
clearly indicate which disputed articles (paragraphs, items
thereof) and to what extent, in their opinion, are in conflict
with the Constitution, and to reason their position on the
compliance of every disputed provision of the legal act (part
thereof) with the Constitution with clearly formulated legal
arguments (Constitutional Court rulings of 12 December 2005, 16
January 2006, 17 January 2006 and decision of 17 January 2006).
8. Under Item 1 of Paragraph 3 of Article 66 of the Law on
the Constitutional Court, a duplicate of the whole text of the
disputed legal act shall be attached to the petition (for the
Constitutional Court), and under Paragraph 5 of this article, 30
copies of the duplicate shall be submitted to the Constitutional
Court. In addition, under Item 2 of Paragraph 3 of Article 67 of
the Law on the Constitutional Court, the duplicate of the whole
text of the disputed legal act shall be attached to the court
ruling (by which one applies to the Constitutional Court), and
under Paragraph 4 of this article, 30 duplicate copies of the
disputed legal act shall be submitted to the Constitutional
Court.
Under Paragraph 1 (wording of 7 July 2005) of Article 2 of
the Republic of Lithuania Law on the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts, the official
announcement of the laws shall be their announcement in the
official publication "Valstybės žinios". Under Item 15 of Section
1 of Chapter 6 of the Rules of the Constitutional Court, the text
of the legal act which is announced in the official gazette
"Valstybės žinios" is to be considered such a duplicate (if the
said legal act is announced in the official gazette "Valstybės
žinios" (Constitutional Court decision of 27 June 2007)).
In this context, it needs also to be noted that under
Article 3¹ (wording of 16 January 2007) of the Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts, in the cases when the resolutions of the Seimas,
Government resolutions and the legal acts adopted by the heads of
other institutions of state governance and collegial institutions
include annexes (drawings, tables, graphs, schemes, maps, etc.),
to announce which in the official gazette "Valstybės žinios"
there are no technical possibilities, such legal acts are on the
same day officially published: in the Internet website of the
official gazette "Valstybės žinios" (www.valstybes-zinios.lt)the
legal act with annexes (Item 1 of Paragraph 1); in the official
gazette "Valstybės žinios"the legal act without annexes (Item 2
of Paragraph 1); the legal acts specified in this article shall
be officially published in the official gazette "Valstybės
žinios" and in the Internet website of the official gazette
"Valstybės žinios" by the officials who signed them (Paragraph
2). The Constitutional Court has held that while establishing
such legal regulation, the legislator also recognized the
necessity to differentiate the procedure of the official
publishing of legal acts (Constitutional Court ruling of 27 June
2007).
9. Under Item 1 of Paragraph 1 of Article 69 of the Law on
the Constitutional Court, by a decision, the Constitutional Court
shall refuse to consider petitions to investigate the compliance
of a legal act with the Constitution, if the petition was filed
by an institution or person who does not have the right to apply
to the Constitutional Court.
10. Under Paragraph 1 of Article 70 of the Law on the
Constitutional Court, a petition requesting to investigate the
compliance of a legal act (paragraph thereof) with a legal act of
higher power which fails to comply with the requirements set
forth in Articles 66 and 67 of the Law on the Constitutional
Court, shall 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 (Paragraph 2 of Article 70 of
the Law on the Constitutional Court).
II
1. The Klaipėda City Local Court, the petitioner, inter
alia requests to investigate whether the Scheme is not in
conflict with Paragraph 2 of Article 7 of the Constitution, with
the constitutional principle of a state under the rule of law,
with Paragraph 1 (wording of 6 April 1993) of Article 1, Item 4
(wording of 6 April 1993) of Paragraph 1 of Article 2, Paragraph
1 (wording of 6 April 1993) of Article 8 of the Law "On the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts of the Republic of Lithuania", as well as with,
according to the petitioner, Article 2 (wording of 7 July 2005),
Item 4 (wording of 7 July 2005) of Paragraph 1 of Article 3 and
Paragraph 1 (wording of 7 July 2005) of Article 9 of this law.
2. The Klaipėda City Local Court, the petitioner, disputes
not what is established in Government Resolution No. 1269 of 19
December 1994, i.e. not the contents of this Government
resolution and the Scheme approved thereby, but the way how this
Government resolution (part thereof) was published.
3. At the time when Government Resolution No. 1269 of 19
December 1994 was adopted, the Law "On the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts of
the Republic of Lithuania", which was adopted by the Seimas on 6
April 1993 and which came into force on 10 May 1993, was
effective.
This law was designed to regulate the relations linked to
the publication and coming into force of the laws and other legal
acts. It inter alia determined what the official publication of
the legal acts was, which text of the legal act was official, it
also established which legal acts had to be published in the
official gazette "Valstybės žinios" and which legal acts could be
not published in the official gazette "Valstybės žinios", as well
as it determined the time for coming into force of these legal
acts and established in what cases and what legal acts could be
published not in the official gazette "Valstybės žinios", but in
other publications.
The Law "On the Procedure of Publication and Coming into
Force of Laws and Other Legal Acts of the Republic of Lithuania"
provided for the only official, under this law, the source of
publication of the Government resolutions to be publishedthe
official gazette "Valstybės žinios".
It needs to be noted that at the moment when Government
Resolution No. 1269 of 19 December 1994 was adopted and published
in the official gazette "Valstybės žinios", the Law On the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts of the Republic of Lithuania" was set forth in its
original wordingthe wording of 6 April 1993, i.e. without the
amendments and supplements.
4. The Law "On the Procedure of Publication and Coming into
Force of Laws and Other Legal Acts of the Republic of Lithuania"
was amended and/or supplemented more than once, and Article 1 of
the Republic of Lithuania Law on Amending the Law "On the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts of the Republic of Lithuania", which was adopted by
the Seimas on 10 December 2002 and which came into force on 1
January 2003, set it forth in a new wording and, upon amending
its title, it was called the Republic of Lithuania Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts.
Later the Law on the Procedure of Publication and Coming
into Force of Laws and Other Legal Acts has been amended and
supplemented more than once.
In the context of the considered petition, it needs to be
mentioned that Article 2 of the Republic of Lithuania Law on
Amending and Supplementing Articles 1, 2, 3, 9, 11, 12 and 13 of
the Law on the Procedure of Publication and Coming into Force of
Laws and Other Legal Acts, which was adopted by the Seimas on 7
July 2005 and which came into force on 21 July 2005, amended
Paragraph 1 (wording of 10 December 2002) of Article 2 of the Law
on the Procedure of Publication and Coming into Force of Laws and
Other Legal Acts and set it forth in a new wording, Article 4
thereof amended Article 9 (wording of 10 December 2002) of the
said law and set it forth in a new wording, and Article 7 thereof
amended Article 13 (wording of 10 December 2002) of the said law
and set it forth in a new wording.
It needs also to be mentioned that Paragraph 1 of Article 1
of the Republic of Lithuania Law on Amending Articles 3 and 12 of
the Law on the Procedure of Publication and Coming into Force of
Laws and Other Legal Acts and Supplementing the Law with Article
3¹, which was adopted by the Seimas on 16 January 2007 and which
came into force on 30 January 2007, amended Item 4 (wording of 10
December 2002) of Paragraph 1 of Article 3 of the Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts.
The petition of the Klaipėda City Local Court, the
petitioner, requesting to investigate whether the Scheme is not
in conflict with Article 2 (wording of 7 July 2005), Item 4
(wording of 7 July 2005) of Paragraph 1 of Article 3 and
Paragraph 1 (wording of 7 July 2005) of Article 9 of the Law "On
the Procedure of Publication and Coming into Force of Laws and
Other Legal Acts of the Republic of Lithuania" is to be
considered as the petition requesting to investigate whether the
Scheme is not in conflict with the articles (paragraphs thereof)
of the Law on the Procedure of Publication and Coming into Force
of Laws and Other Legal Acts which are set forth in the wording
of 7 July 2005.
It is also to be noted that at the time when the ruling of
the Klaipėda City Local Court, the petitioner, was adopted (15
February 2007), whereby it applied to the Constitutional Court,
Article 2 and Paragraph 1 of Article 9 of the Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts which are specified by the petitioner in fact were set
forth in the wording of 7 July 2005, however, Item 4 of Paragraph
1 of Article 3 of this law, which was specified by the
petitioner, was set forth in the wording of 16 January 2007 (up
to then Paragraph 1 of Article 3 was set forth in the wording of
7 July 2005, and Item 4 thereofin the wording of 10 December
2002); it was never set forth in the wording of 7 July 2005,
which is specified by the Klaipėda City Local Court, the
petitioner.
Thus, one is to hold that the Klaipėda City Local Court,
the petitioner, in its petition addressed to the Constitutional
Court erroneously specified the wording of one article (paragraph
thereof) of the law, namely of Item 4 of Paragraph 1 of Article 3
of the Law on the Procedure of Publication and Coming into Force
of Laws and Other Legal Acts, in the aspect of which the
compliance of the Scheme is disputed.
5. The compliance of the Scheme with the Constitution, with
Paragraph 1 (wording of 6 April 1993) of Article 1, Item 4
(wording of 6 April 1993) of Paragraph 1 of Article 2, Paragraph
1 (wording of 6 April 1993) of Article 8 of the Law "On the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts of the Republic of Lithuania", as well as with the
articles (paragraphs thereof) of the Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts
(the title that the Law "On the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts of the Republic of
Lithuania" (wording of 6 April 1993 with subsequent amendments
and supplements) has been referred to since 1 January 2003) was
disputed also in the constitutional justice case subsequent to
the petition of a group of Members of the Seimas, the petitioner,
requesting to investigate whether Government Resolution No. 1269
"On the Planning Scheme (General Plan) of Curonian Spit National
Park" of 19 December 1994 is not in conflict with Paragraph 2 of
Article 7 of the Constitution, with Paragraph 1 of Article 8 of
the Law "On the Procedure of Publication and Coming into Force of
Laws and Other Legal Acts of the Republic of Lithuania" (wording
of 6 April 1993), Paragraph 1 of Article 9 of the Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts (wording of 7 July 2005), as well as subsequent to the
petitions of the Klaipėda Regional Administrative Court, the
Klaipėda City Local Court, the Supreme Administrative Court of
Lithuania and the Klaipėda Regional Court, the petitioners,
requesting to investigate whether the said Government resolution
is not in conflict with Paragraph 2 of Article 7 of the
Constitution, with the constitutional principle of a state under
the rule of law, with Paragraph 1 of Article 1, Item 4 of
Paragraph 1 of Article 2 and Paragraph 1 of Article 8 of the Law
"On the Procedure of Publication and Coming into Force of Laws
and Other Legal Acts of the Republic of Lithuania" (wording of 6
April 1993), with Article 2, Item 4 of Paragraph 1 of Article 3
and Paragraph 1 of Article 9 of the Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts
(wording of 7 July 2005), in which, on 27 June 2007, the
Constitutional Court adopted the Ruling "On the compliance of the
Republic of Lithuania Law 'On the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts of the Republic of
Lithuania' (wording of 6 April 1993) and Government of the
Republic of Lithuania Resolution No. 1269 'On the Planning Scheme
(General Plan) of Curonian Spit National Park' of 19 December
1994 (wording of 19 December 1994) with the Constitution of the
Republic of Lithuania".
On 30 June 2007, the said Constitutional Court ruling
was officially published in the official gazette "Valstybės
žinios" (Official Gazette Valstybės žinios, 2007, No. 72-2865)
and has been valid as from that day.
6. In the Constitutional Court ruling of 27 June 2007, it
was inter alia ruled that the Law "On the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts of
the Republic of Lithuania" (wording of 6 April 1993) (Official
Gazette Valstybės žinios, 1993, No. 12-296), to the extent that
it did not establish that the legal acts (parts thereof) of
especially large size and complex structure, inter alia such
which include graphic parts of especially large size, regarding
the publication of which very big technical problems would
appear, could officially be published not in the official gazette
"Valstybės žinios", but in other sources and/or in other ways, as
well as to the extent that it did not establish that the said
legal acts (parts thereof) of especially large size and complex
structure, even if it is required to officially announce them in
the official gazette "Valstybės žinios", could be officially
published in special editions of the official gazette "Valstybės
žinios", was in conflict with Paragraph 2 of Article 7 of the and
with the constitutional principle of a state under the rule of
law; it was also held that the provisions of Paragraph 1 of
Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph 1 of
Article 8 of the Law "On the Procedure of Publication and Coming
into Force of Laws and Other Legal Acts of the Republic of
Lithuania" (wording of 6 April 1993) reflected the deficiency and
constitutional unreasonableness of the overall legal regulation
which is established in this law.
Upon holding that the Law "On the Procedure of Publication
and Coming into Force of Laws and Other Legal Acts of the
Republic of Lithuania" (wording of 6 April 1993), to the extent
that it did not establish that the legal acts (parts thereof) of
especially large size and complex structure, inter alia such
which include graphic parts (drawings, tables, graphs, schemes,
maps, etc.) of especially large size, regarding the publication
of which very big technical problems would appear, could
officially be published not in the official gazette "Valstybės
žinios", but in other sources and/or in other ways, as well as to
the extent that it did not establish that the said legal acts
(parts thereof) of especially large size and complex structure,
even if it is required to officially announce them in the
official gazette "Valstybės žinios", could be officially
published in the special editions of the official gazette
"Valstybės žinios", the circulation of which, taking account of
various circumstances, could be smaller than the usual
circulation of the official gazette "Valstybės žinios", and whose
size could differ from the usual size of the official gazette
"Valstybės žinios", was in conflict with Paragraph 2 of Article 7
of the Constitution and with the constitutional principle of a
state under the rule of law, as well as upon stating that the
provisions (because of which the compliance of Government
Resolution No. 1269 "On the Planning Scheme (General Plan) of
Curonian Spit National Park" of 19 December 1994 was disputed) of
Paragraph 1 of Article 1, Item 4 of Paragraph 1 of Article 2 and
Paragraph 1 of Article 8 of this law reflected the deficiency and
constitutional unreasonableness of the overall legal regulation
which was established in the same law, the Constitutional Court
did not investigate in that constitutional justice case whether
the said Government resolution was not in conflict with Paragraph
1 of Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph
1 of Article 8 of the Law "On the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts of the Republic of
Lithuania" (wording of 6 April 1993). The Constitutional Court
held that if the compliance of Government Resolution No. 1269 "On
the Planning Scheme (General Plan) of Curonian Spit National
Park" of 19 December 1994 with Paragraph 1 of Article 1, Item 4
of Paragraph 1 of Article 2 and Paragraph 1 of Article 8 of the
Law "On the Procedure of Publication and Coming into Force of
Laws and Other Legal Acts of the Republic of Lithuania" (wording
of 6 April 1993) were investigated, one would deny the concept of
the hierarchy of legal acts, at whose top is the Constitution
itself, which is entrenched in the Constitution, and the essence
of constitutional justice itself would be distorted.
Due to the same reasoning, the compliance of Government
resolution No. 1269 of 19 December 1994 (the Scheme approved
thereby) with Paragraph 1 of Article 1, Item 4 of Paragraph 1 of
Article 2 and Paragraph 1 of Article 8 of the Law "On the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts of the Republic of Lithuania" (wording of 6 April
1993) should not be investigated also subsequent to the
considered petition of the Klaipėda City Local Court, the
petitioner.
7. It has been held in this Constitutional Court decision
that the petition of the Klaipėda City Local Court, the
petitioner, requesting to investigate whether the Scheme is not
in conflict with Article 2 (wording of 7 July 2005), Item 4
(wording of 7 July 2005) of Paragraph 1 of Article 3 and
Paragraph 1 (wording of 7 July 2005) of Article 9 of the Law "On
the Procedure of Publication and Coming into Force of Laws and
Other Legal Acts of the Republic of Lithuania" is to be
considered as a petition requesting to investigate whether the
Scheme is not in conflict with the articles (paragraphs thereof)
of the Law on the Procedure of Publication and Coming into Force
of Laws and Other Legal Acts which are set forth in the wording
of 7 July 2005; it has also been held that at the time when the
ruling of the Klaipėda City Local Court, the petitioner, was
adopted, whereby it applied to the Constitutional Court, Item 4
of Paragraph 1 of Article 3 of this law specified by the
petitioner was set forth not in the wording of 7 July 2005 which
is specified by the Klaipėda City Local Court, the petitioner
(this item has never been set forth in such wording), but in the
wording of 16 January 2007 (as it was mentioned, up to then
Paragraph 1 of Article 3 was set forth in the wording of 7 July
2005, and Item 4 thereofin the wording of 10 December 2002),
thus, the Klaipėda City Local Court, the petitioner, in its
petition addressed to the Constitutional Court erroneously
specified the wording of Item 4 of Paragraph 1 of Article 3 of
the Law on the Procedure of Publication and Coming into Force of
Laws and Other Legal Acts.
8. While deciding whether the petition of the Klaipėda City
Local Court, the petitioner, requesting to investigate whether
the Scheme is not in conflict with Article 2 (wording of 7 July
2005), Item 4 (wording of 7 July 2005) of Paragraph 1 of Article
3 and Paragraph 1 (wording of 7 July 2005) of Article 9 of the
Law "On the Procedure of Publication and Coming into Force of
Laws and Other Legal Acts of the Republic of Lithuania" may be
accepted at the Constitutional Court for consideration, a
circumstance is of essential importance that the compliance of
the Scheme with the articles (paragraphs thereof) of the Law on
the Procedure of Publication and Coming into Force of Laws and
Other Legal Acts (the title that the Law "On the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts of
the Republic of Lithuania" (wording of 6 April 1993 with
subsequent amendments and supplements) has been referred to since
1 January 2003) was already disputed in the former constitutional
justice case, namely in the case in which the Constitutional
Court ruling of 27 June 2007 was adopted.
In the said Constitutional Court ruling it was held that
under the Constitution, the legal acts must be officially
published following the procedure of their official publishing,
which is established namely at the moment when they are issued.
Thus, even though in that constitutional justice case the
Constitutional Court was requested to investigate whether
Government resolution No. 1269 of 19 December 1994 (the Scheme
approved thereby), under the procedure of its publishing, is not
in conflict not only with the articles (paragraphs thereof) of
the Law "On the Procedure of Publication and Coming into Force of
Laws and Other Legal Acts of the Republic of Lithuania" (wording
of 6 April 1993), but also with the articles (paragraphs thereof)
of the Law on the Procedure of Publication and Coming into Force
of Laws and Other Legal Acts (the title that the Law "On the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts of the Republic of Lithuania" (wording of 6 April 1993
with subsequent amendments and supplements) has been referred to
since 1 January 2003) set forth in the wording of 7 July 2005,
the Constitutional Court did not investigate whether Government
resolution No. 1269 of 19 December 1994 (the Scheme approved
thereby) was not in conflict with the articles (paragraphs
thereof) (set forth in the wording of 7 July 2005) of the Law on
the Procedure of Publication and Coming into Force of Laws and
Other Legal Acts.
Due to the same reasoning, the compliance of Government
resolution No. 1269 of 19 December 1994 (the Scheme approved
thereby) with Article 2 (wording of 7 July 2005), Item 4
(according to the petitioner, the wording of 7 July 2005) of
Paragraph 1 of Article 3 and Paragraph 1 (wording of 7 July 2005)
of Article 9 of the Law on the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts should not be
investigated subsequent to the considered petition of the
Klaipėda City Local Court, the petitioner, either.
9. In its ruling of 27 June 2007, the Constitutional Court
inter alia established that Government Resolution No. 1269 "On
the Planning Scheme (General Plan) of Curonian Spit National
Park" of 19 December 1994 (wording of 19 December 1994), under
the procedure of its publishing, is not in conflict with the
Constitution.
10. The question of the compliance of Government Resolution
No. 1269 "On the Planning Scheme (General Plan) of Curonian Spit
National Park" of 19 December 1994 (and the Planning Scheme
(General Plan) of Curonian Spit National Park approved thereby)),
whose compliance is doubted by the Klaipėda City Local Court, the
petitioner, with the Constitution (as well as the question of the
relation of the articles (paragraphs thereof) of the Law "On the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts of the Republic of Lithuania" (wording of 6 April
1993) and of the Law on the Procedure of Publication and Coming
into Force of Laws and Other Legal Acts (the title that the Law
"On the Procedure of Publication and Coming into Force of Laws
and Other Legal Acts of the Republic of Lithuania" (wording of 6
April 1993 with subsequent amendments and supplements) has been
referred to since 1 January 2003) specified by the Klaipėda City
Local Court, the petitioner) has been decided in the aforesaid
Constitutional Court ruling.
11. Under Item 3 of Paragraph 1 of Article 69 of the Law on
the Constitutional Court, by a decision, the Constitutional Court
shall refuse to consider petitions to investigate the compliance
of a legal act with the Constitution, if the compliance of the
legal act with the Constitution specified in the petition has
already been investigated by the Constitutional Court and the
ruling on this issue adopted by the Constitutional Court is still
in force.
12. Taking account of the arguments set forth, one is to
refuse to consider the petition of the Klaipėda City Local Court,
the petitioner, requesting to investigate whether the Planning
Scheme (General Plan) of Curonian Spit National Park approved by
Government Resolution No. 1269 "On the Planning Scheme (General
Plan) of Curonian Spit National Park" of 19 December 1994 is not
in conflict with Paragraph 2 of Article 7 of the Constitution,
with the constitutional principle of a state under the rule of
law, with Paragraph 1 (wording of 6 April 1993) of Article 1,
Item 4 (wording of 6 April 1993) of Paragraph 1 of Article 2,
Paragraph 1 (wording of 6 April 1993) of Article 8 of the Law "On
the Procedure of Publication and Coming into Force of Laws and
Other Legal Acts of the Republic of Lithuania", as well as with
Article 2 (wording of 7 July 2005), Item 4 (according to the
petitioner, wording of 7 July 2005) of Paragraph 1 of Article 3
and Paragraph 1 (wording of 7 July 2005) of Article 9 of the Law
on the Procedure of Publication and Coming into Force of Laws and
Other Legal Acts.
III
1. The Klaipėda City Local Court, the petitioner, inter
alia requests to investigate whether Article 4, Paragraphs 1 and
2 of Article 346 and Paragraphs 1 and 2 (according to the
petitioner, wording of 11 September 2006) of Article 350 of the
CCP are not in conflict with the principles of justice and a
state under the rule of law which, according to the petitioner,
are consolidated in the Preamble to the Constitution.
2. Even though, as it was said, a duplicate of the whole
text (30 copies) of the disputed legal act must be attached to
the court ruling (whereby it is applied to the Constitutional
Court), the Klaipėda City Local Court, the petitioner, did not
submit the duplicates of the texts of the articles (paragraphs
thereof) of the CCP which are requested to investigate to the
Constitutional Court.
3. Even though the articles (paragraphs thereof) of the CCP
which was approved by Article 1 of the Law on Approving, Coming
into Force and Implementation of the Code of Civil Procedure of
the Republic of Lithuania which was adopted by the Seimas on 28
February 2002 have been amended and/or supplemented more than
once, Articles 4, 346 and 350 of the CCP, which are specified in
the petition of the Klaipėda City Local Court, the petitioner,
have not been amended and/or supplemented; at the moment, they
are also set forth in the wording of 28 February 2002. Paragraphs
1 and 2 of Article 350 of the CCP have never been set forth in
the wording of 11 September 2006 which is specified by the
Klaipėda City Local Court, the petitioner.
Thus, it needs to be held that in its petition to the
Constitutional Court, the Klaipėda City Local Court, the
petitioner, erroneously specified the wording of one of the
disputed articles (paragraphs thereof) of the CCP, namely the
wording of Paragraphs 1 and 2 of Article 350 of the CCP.
4. It needs also to be noted that the Klaipėda City Local
Court, the petitioner, inter alia requests to investigate the
compliance of the articles (paragraphs thereof) (which were
specified by the petitioner) of the CCP with the principles of
justice and a state under the rule of law which, according to the
petitioner, are consolidated in the Preamble to the Constitution.
The Constitutional Court has held in its acts more than
once that the constitutional principles of justice and a state
under the rule of law may not be construed as those entrenched
only in the Preamble of the Constitution, nor identified only
with the striving for an open, just and harmonious civil society
and state under the rule of law proclaimed in the Preamble of the
Constitution, and that the constitutional principle of a state
under the rule of law is inseparable from the imperative of
justice and integrates various values, entrenched in and
protected and defended by the Constitution, as well as those that
are expressed by the said striving. In the acts of the
Constitutional Court it has also been held more than once that
the investigation of the compliance of legal acts (parts thereof)
with the striving for an open, just and harmonious civil society
and state under the rule of law proclaimed in the Preamble to the
Constitution implies the investigation of their compliance with
the constitutional principle of a state under the rule of law.
5. It is obvious from the petition of the Klaipėda City
Local Court, the petitioner, that the petition requesting to
investigate whether Article 4, Paragraphs 1 and 2 of Article 346
and Paragraphs 1 and 2 of Article 350 of the CCP with the
Constitution are not in conflict with the Constitution was
determined by the fact that one of the respondents in the civil
case considered by this courtthe Neringa municipalitydoubted
the compliance of the specified articles (paragraphs thereof) of
the CCP and requested to apply to the Constitutional Court. The
arguments which reason this petition of the Klaipėda City Local
Court, the petitioner, are specified in the petition of the
Neringa municipalitythe respondent in the civil case considered
by the said court, as specified in the petition to the same
court.
6. The doubts of the Neringa municipality regarding the
constitutionality of whether Article 4, Paragraphs 1 and 2 of
Article 346 and Paragraphs 1 and 2 of Article 350 of the CCP are
based on these arguments, inter alia on the provisions of the
official constitutional doctrine (which are set forth in the
Constitutional Court ruling of 28 March 2006) which construe the
constitutional principle of a state under the rule of law.
6.1. In the Constitutional Court ruling of 28 March 2006,
it was inter alia held that:
- the constitutional principle of a state under the rule of
law implies continuity of jurisprudence;
- "the instance system of courts of general jurisdiction
established in the Constitution must function so that the
preconditions are created to form the same (regular, consistent)
practice of courts of general jurisdiction";
- "when ensuring the uniformity (regularity, consistency)
of the practice of courts of general jurisdiction, which arises
from the Constitution, thus, also the continuity of the
jurisprudence, the following factors <
> are of crucial
importance: the courts of general jurisdiction, when adopting
decisions in cases of corresponding categories, are bound by
their own created precedentsdecisions in the analogous cases;
the courts of general jurisdiction of lower instance, when
adopting decisions in the cases of corresponding categories, are
bound by the decisions of the courts of general jurisdiction of
higher instanceprecedents in the cases of the same categories;
the courts of general jurisdiction of higher categories, while
revising decisions of the courts of general jurisdiction of lower
instance, must assess these decisions by always following the
same legal criteria; these criteria must be clear and known ex
ante to the subjects of law, inter alia to the courts of general
jurisdiction of lower instance";
- "the practice of courts of general jurisdiction in cases
of corresponding categories has to be corrected and new court
precedents <
> created only when it is unavoidably and
objectively necessary; such correction of practice <
> must in
all cases be properly <
> argued";
- "the fact that the courts of general jurisdiction <
> are
bound by decisions of the courts of general jurisdiction of
higher instance <
> inevitably implies that the said courts have
to follow such concept of the content of corresponding provisions
<
> of law, also of the application <
>, which was formed and
which was followed when applying these provisions <
> in the
previous cases <
>. Disregarding this maxim <
> which arises from
the Constitution, would <
> mean disregarding the provisions of
the Constitution on administration of justice, that of the
constitutional principles of a state under the rule of law,
justice, equality of people before the court <
>".
6.2. Under Article 346 of the CCP, which establishes the
basis of the review of effective court decisions and rulings
under cassation procedure, cassation is possible only in the case
when there are the bases named in this article (Paragraph 1); the
bases of review of a case under cassation procedure shall be the
following: violation of substantive and procedural law which is
of essential importance for the same construction and application
of law if this violation could influence the adoption of an
unlawful decision (ruling) (Item 1); if in the decision (ruling)
appealed under cassation the court deviated from the practice of
the application and construction of law formed by the Supreme
Court of Lithuania (Item 2); if the practice of the Supreme Court
of Lithuania on the disputed legal issue is not the same (Item
3).
Under Paragraph 1 of Article 350 of the CCP, in which the
procedure of acceptance of the cassation appeal is regulated, the
question of accepting a cassation appeal shall be decided by the
selection college consisting of three justices which has been
composed by the President of the Supreme Court of Lithuania or
the Chairman of the Civil Cases Division of this court; the
cassation appeal shall be considered as accepted if at least one
member of the selection college voted in favour of it; the
question of accepting the cassation appeal shall be decided by
adopting a ruling under the procedure of written process; the
participation of the justice in the selection college while
deciding there a question of accepting a certain cassation appeal
does not prevent him from consideration of the case subsequent to
the said cassation appeal under cassation procedure. Under
Paragraph 2 of this article, one shall refuse to accept the
cassation appeal in the following cases: if it is submitted after
the deadline for submission of the cassation appeal and there is
no request to renew the missed deadline or if the request to
renew it is not granted (Item 1); if it is in conflict with the
requirements established in Article 341 of the CCP (Item 2); if
it does not meet the requirements of Article 346 of the CCP (Item
3); if it does not meet the requirements of Article 347 of the
CCP (Item 4); if it is not signed or if it is signed by a not
authorised person or submitted by a person, who does not have the
right to initiate the cassation process (Item 5); if it is
submitted repeatedly after the case has already been considered
under cassation procedure (Item 6); if it is submitted without
paying a fixed stamp duty and there is no request to partially
exempt from this fee or to postpone it, or if the request of the
cassator to partially exempt from this fee or to postpone it is
not granted (Item 7).
6.3. In the opinion of the Neringa municipality, which is
the respondent in the civil case considered by the Klaipėda City
Local Court, the legal regulation established in Article 4,
Paragraphs 1 and 2 of Article 346 and Paragraphs 1 and 2 of
Article 350 of the CCP does not comply with the specified
doctrinal provisions of the Constitutional Court ruling of 28
March 2006.
7. It needs to be held that the Klaipėda City Local Court,
the petitioner, grounds its petition not on its arguments, but on
the arguments of the Neringa municipality, which is the
respondent in the civil case considered by this court, which are
set forth in the petition addressed to the said court. The
Klaipėda City Local Court, the petitioner, did not analyze or
assess these arguments, it just restricted itself to the
statement that "while seeking to elucidate" whether Article 4,
Paragraphs 1 and 2 of Article 346 and Paragraphs 1 and 2 of
Article 350 of the CCP are not in conflict with Articles 29 and
30 of the Constitution and with the principles of justice and a
state under the rule of law which, according to the petitioner,
are consolidated in the Preamble to the Constitution, it is
"expedient to apply" to the Constitutional Court "regarding the
adoption of the ruling on the said issue".
It needs also to be held that the Klaipėda City Local
Court, the petitioner, did not set forth its position regarding
the compliance of the disputed articles (paragraphs) of the CCP
with the Constitution and did not provide any legal arguments
grounding that position.
Thus, it is not clear from the petition of the Klaipėda
City Local Court, the petitioner, whether it had doubts regarding
the compliance of Article 4, Paragraphs 1 and 2 of Article 346
and Paragraphs 1 and 2 of Article 350 of the CCP with the
Constitution itself, or the Klaipėda City Local Court, the
petitioner, only granted the corresponding petition of the
Neringa municipality, which is the respondent in the civil case
considered by this court.
8. In this context, it needs to be noted that as it is
specified in the ruling of the Klaipėda City Local Court, the
petitioner, by which it was applied to the Constitutional Court,
the Neringa municipality, which is the respondent in the civil
case considered by this court, requested to apply to the
Constitutional Court regarding the compliance of Article 4,
Paragraphs 1 and 2 of Article 346 and Paragraphs 1 and 2 of
Article 350 of the CCP not only with the constitutional
principles of justice and a state under the rule of law, which,
according to the petitioner, are consolidated in the Preamble to
the Constitution, but also with Articles 29 and 30 of the
Constitution, however, Articles 29 and 30 of the Constitution are
not mentioned in the resolution part of the ruling of the
Klaipėda City Local Court, the petitioner. Even though the
Klaipėda City Local Court, the petitioner, as it was mentioned,
states that "while seeking to elucidate" whether these articles
(paragraphs thereof) are not in conflict with Articles 29 and 30
of the Constitution and with the constitutional principles of
justice and a state under the rule of law, which, according to
the petitioner, are consolidated in the Preamble to the
Constitution, it is "expedient to apply" to the Constitutional
Court "regarding the adoption of the ruling on the said issue",
the Constitutional Court is requested to investigate the
compliance of the corresponding articles (paragraphs thereof) of
the CCP only with the constitutional principles of justice and a
state under the rule of law.
Thus, it is not clear from the petition of the Klaipėda
City Local Court, the petitioner, why it, while granting the
petition of the Neringa municipality, which is the respondent in
the civil case considered by this court, requesting to apply to
the Constitutional Court regarding the compliance of Article 4,
Paragraphs 1 and 2 of Article 346 and Paragraphs 1 and 2 of
Article 350 of the CCP with the Constitution in one aspect,
namely regarding the compliance of the corresponding legal
regulation with the constitutional principles of justice and a
state under the rule of law, which, according to the petitioner,
are consolidated in the Preamble to the Constitution, at the same
time did not grant its petition requesting to apply to the
Constitutional Court regarding the compliance of the specified
articles (paragraphs thereof) of the CCP with the Constitution in
another aspect, namely regarding the compliance of the
corresponding legal regulation with Articles 29 and 30 of the
Constitution. The Klaipėda City Local Court, the petitioner, did
not provide any arguments regarding this position.
9. In this context, it needs to be mentioned that, as the
Constitutional Court held in its ruling of 28 March 2006, while
construing Paragraph 2 of Article 6, Paragraph 1 of Article 30,
Paragraph 1 of Article 109 and Article 110 of the Constitution
and the constitutional principle of a state under the rule of
law, "each party of the case considered by a court, which has
doubted on the compliance of the law or other legal act (part
thereof) that may be applied in that case and the investigation
on the compliance of which with the Constitution (other legal act
of greater power) is attributed to the jurisdiction of the
Constitutional Court <
>, has the right to apply to the court of
general jurisdiction or a corresponding specialised court
established under Paragraph 2 of Article 111 of the Constitution
which considers the case and to request to suspend the
consideration of the case and to apply to the Constitutional
Court with a petition, requesting to investigate and decide
whether the legal act (part thereof) passed by the Seimas, the
President of the Republic or the Government or adopted by
referendum and which is applicable in the said case, is not in
conflict with a legal act of greater power, inter alia (and,
first of all) with the Constitution"; "the constitutional
imperatives that only courts administer justice, that law cannot
be not public, as well as the requirement arising from the
Constitution to consider the case justly, also imply that every
final act of the court must be based on legal arguments
(reasoning); the argumentation must be rational; the requirement
of legal clarity, which arises from the constitutional principle
of a state under the rule of law, inter alia means that a final
act of the court cannot contain any concealed arguments, nor any
non-specified circumstances, which are important for the adoption
of a just final act of the court; final acts of the court must be
clear to the persons participating in the case as well as other
persons"; "the said requirements on the argumentation of court
decisions are applicable also to decisions of courts of general
jurisdiction or specialised courts established under Paragraph 2
of Article 111 of the Constitution to apply or (even though it is
requested by a certain party of the case considered in the court)
not to apply to the Constitutional Court with a petition
requesting to investigate and decide, whether the legal act (part
thereof) passed by the Seimas, the President of the Republic or
the Government or adopted by referendum and applicable in that
case is not in conflict with the legal act of greater power,
inter alia (and, first of all) with the Constitution".
In the Constitutional Court ruling of 21 September 2006, it
was held that "a final court act cannot be ambiguous; it must be
clear and comprehensible already at the time when the decision on
merits regarding the considered issue is adopted and publicly
announced, but not such an act, which would make the parties and
other participants of the proceedings guess why and due to what
reasoning precisely that and not different court decision was
adopted". This requirement is also to be applied for the court
rulings by which the request of the parties of the case
considered by the court to apply to the Constitutional Court with
a petition requesting to investigate the compliance of the legal
act (part thereof) with the legal act of higher power, inter alia
with the Constitution, is granted or when one refuses to grant
such request.
10. While disputing the compliance of Article 4 of the CCP
with the Constitution, the Klaipėda City Local Court, the
petitioner, (restating the arguments of the Neringa municipality,
which is the respondent in the civil case considered by the
Klaipėda City Local Court) states that under this article, while
applying law, the courts must take account only of the
interpretations of application of law which are present in the
rulings adopted under cassation procedure.
It needs to be noted that Article 4 of the CCP provides:
"While applying law, the courts shall take account of the
interpretations of application of law which are present in the
rulings adopted under the cassation procedure established in the
Law on Courts."
Thus, Article 4 of the CCP does not include the word "only
", i.e. the word which is especially important, essential in the
arguments (which are restated by the Klaipėda City Local Court,
the petitioner) of the Neringa municipality, the respondent in
the civil case considered by the Klaipėda City Local Court, in
which it was decided to apply to the Constitutional Court.
Thus, the petition requesting to investigate the compliance
of Article 4 of the CCP with the Constitution is based on the
provision that the disputed legal regulation is enshrined in this
article not explicitly but implicitly. In other words, the said
petition is based on the corresponding interpretation of Article
4 of the CCP that under this article, while applying law, the
courts must take account only of the interpretations of
application of law which are present in the rulings adopted under
cassation procedure and do not have the duty to take account of
those court decisions (rulings) which are announced not under
cassation procedure. However, the petition of the Klaipėda City
Local Court, the petitioner, does not contain any arguments which
would base namely such interpretation of this article.
11. While requesting to investigate the compliance of
Article 4, Paragraphs 1 and 2 of Article 346 and Paragraphs 1 and
2 of Article 350 of the CCP with the Constitution, the Klaipėda
City Local Court, the petitioner, did not explain of which court
(or courts) and of which decision (or decisions) it should take
account while considering a civil case, in which it was decided
to apply to the Constitutional Court, however, the provisions of
the CCP, the investigation into which it requests, do not permit
to do so, as well as why and in particular how they do not permit
to do it.
Thus, it is not clear from the petition of the Klaipėda
City Local Court, the petitioner, what is the legal situation in
which this court, as a court of lower instance, while adopting
the decision in the corresponding civil case regarding the legal
regulation established in Article 4, Paragraphs 1 and 2 of
Article 346 and Paragraphs 1 and 2 of Article 350 of the CCP, may
not follow the precedent (or precedents) of the court (or courts)
of higher instance which binds it and thus not to violate the
imperative of the continuity of jurisprudence and to ensure that
its decision in that case would fulfil the requirement of the
uniformity (consistency, non-discrepancy) of the case law of the
courts of general competence. Thus, it is also not clear, how
Article 4, Paragraphs 1 and 2 of Article 346 and Paragraphs 1 and
2 of Article 350 of the CCP, which are requested to be
investigated, do not permit the said court to follow the
doctrinal provisions of the Constitutional Court ruling of 28
March 2006 specified by it.
12. It needs to be held that it is not obvious from the
petition of the Klaipėda City Local Court whether it (in the case
considered by it) has locus standi in order to apply to the
Constitutional Court with a petition requesting to investigate
the compliance of Article 4, Paragraphs 1 and 2 of Article 346
and Paragraphs 1 and 2 of Article 350 of the CCP with the
Constitution.
13. Taking account of all the circumstances set forth, it
needs to be held that the petition of the Klaipėda City Local
Court, the petitioner, requesting to investigate whether Article
4, Paragraphs 1 and 2 of Article 346 and Paragraphs 1 and 2
(according to the petitioner, wording of 11 September 2006) of
Article 350 of the CCP are not in conflict with the principles of
justice and a state under the rule of law which, according to the
petitioner, are consolidated in the Preamble to the Constitution,
and does not meet the requirements of Items 6 and 8 of Paragraph
1, Item 1 of Paragraph 3 and Paragraph 5 of Article 66, Item 5 of
Paragraph 2, Item 2 of Paragraph 3 and Paragraph 4 of Article 67
of the Law on the Constitutional Court, and, under Paragraph 1 of
Article 70 of the Law on the Constitutional Court is to be
returned to the petitioner.
It was mentioned that under Paragraph 2 of Article 70 of
the Law on the Constitutional Court, 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.
Conforming to Article 1, Paragraph 2 of Article 25,
Articles 66, 67 and 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 return the petition which requests to investigate
whether Article 4, Paragraphs 1 and 2 of Article 346 and
Paragraphs 1 and 2 (according to the petitioner, wording of 11
September 2006) of Article 350 of the Code of Civil Procedure of
the Republic of Lithuania are not in conflict with the principles
of justice and a state under the rule of law which, according to
the petitioner, are consolidated in the Preamble to the
Constitution of the Republic of Lithuania, back to the Klaipėda
City Local Court, the petitioner.
2. To refuse to consider the petition of the Klaipėda City
Local Court, the petitioner, requesting to investigate whether
the Planning Scheme (General Plan) of Curonian Spit National Park
approved by Government of the Republic of Lithuania Resolution
No. 1269 "On the Planning Scheme (General Plan) of Curonian Spit
National Park" of 19 December 1994 is not in conflict with
Paragraph 2 of Article 7 of the Constitution of the Republic of
Lithuania, with the constitutional principle of a state under the
rule of law, with Paragraph 1 (wording of 6 April 1993) of
Article 1, Item 4 (wording of 6 April 1993) of Paragraph 1 of
Article 2, Paragraph 1 (wording of 6 April 1993) of Article 8 of
the Republic of Lithuania Law "On the Procedure of Publication
and Coming into Force of Laws and Other Legal Acts of the
Republic of Lithuania", as well as with Article 2 (wording of 7
July 2005), Item 4 (according to the petitioner, wording of 7
July 2005) of Paragraph 1 of Article 3 and Paragraph 1 (wording
of 7 July 2005) of Article 9 of the Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts.
This Constitutional Court decision is final and not subject
to appeal.
The decision is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court:
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis