Lietuviškai
Case No. 14/06-22/06-27/06-29/06-34/06-35/06-
42/06-46/06-52/06-54/06-03/07-11/07
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
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
27 June 2007
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 hearingDaiva Pitrėnaitė,
in the presence of the representatives of a group of
Members of the Seimas of the Republic of Lithuania, the
petitioner, who were Saulius Girdauskas, a Member of the Seimas
and Gintaras Černiauskas, an advocate,
in the presence of the representative of the Government of
the Republic of Lithuania, the party concerned, who was Robertas
Klovas, Director of the Legal and Personnel Department of the
Ministry of Environment 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, in its public
hearing on 8 June 2007 heard constitutional justice case No. 14/
06-22/06-29/06-34/06-35/06-42/06-46/06-52/06-54/06-03/07-11/07
subsequent to the following:
(1) the petition of a group of Members of the Seimas of the
Republic of Lithuania consisting of Saulius Girdauskas,
Valentinas Bukauskas, Saulius Bucevičius, Manfredas Žymantas,
Skirmantas Pabedinskas, Rimvydas Turčinskas, Algirdas Ivanauskas,
Mindaugas Subačius, Virginija Baltraitienė, Vydas Gedvilas,
Algimantas Salamakinas, Jonas Pinskus, Zenonas Mikutis, Vaclovas
Karbauskis, Loreta Graužinienė, Petras Gražulis, Vytautas
Kamblevičius, Vilma Martinkaitienė, Romualda Kšanienė, Rimantas
Bašys, Vladimiras Volčiok, Vytautas Galvonas, Jonas Lionginas,
Violeta Boreikienė, Eligijus Masiulis, Jonas Ramonas, Dailys
Alfonsas Barakauskas, Valentinas Mazuronis, Arimantas Dumčius,
Juozas Jaruševičius, Dangutė Mikutienė, Viačeslav Škil,
Virginijus Domarkas, Gediminas Jakavonis, a petitioner,
requesting to investigate whether 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, Paragraph 1 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" (wording of 6 April 1993) and with Paragraph 1 of
Article 9 of the Republic of Lithuania Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts
(wording of 7 July 2005) (petition No. 1B-13/2006);
(2) the petition of the Klaipėda Regional Administrative
Court, the petitioner, requesting to investigate whether
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 of Article 1, Item 4 of Paragraph 1 of Article 2
and Paragraph 1 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" (wording of 6
April 1993), with Article 2, Item 4 of Paragraph 1 of Article 3
and Paragraph 1 of Article 9 of the Republic of Lithuania Law on
the Procedure of Publication and Coming into Force of Laws and
Other Legal Acts (wording of 7 July 2005) (petition No. 1B-22/
2006);
(3) the petition of the Klaipėda Regional Administrative
Court, a petitioner, requesting to investigate whether 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 of Article 1, Item 4 of Paragraph 1 of Article 2 and
Paragraph 1 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" (wording of 6 April
1993), with Article 2, Item 4 of Paragraph 1 of Article 3 and
Paragraph 1 of Article 9 of the Republic of Lithuania Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts (wording of 7 July 2005) (petition No. 1B-26/2006);
(4) the petition of the Klaipėda City Local Court, a
petitioner, requesting to investigate whether 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 of Article 1, Item 4 of Paragraph 1 of Article 2 and
Paragraph 1 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" (wording of 6 April
1993), with Article 2, Item 4 of Paragraph 1 of Article 3 and
Paragraph 1 of Article 9 of the Republic of Lithuania Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts (wording of 7 July 2005) (petition No. 1B-28/2006);
(5) the petition of the Klaipėda Regional Administrative
Court, a petitioner, requesting to investigate whether 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 of Article 1, Item 4 of Paragraph 1 of Article 2 and
Paragraph 1 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" (wording of 6 April
1993), with Article 2, Item 4 of Paragraph 1 of Article 3 and
Paragraph 1 of Article 9 of the Republic of Lithuania Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts (wording of 7 July 2005) (petition No. 1B-35/2006);
(6) the petition of the Klaipėda Regional Administrative
Court, a petitioner, requesting to investigate whether 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 of Article 1, Item 4 of Paragraph 1 of Article 2 and
Paragraph 1 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" (wording of 6 April
1993), with Article 2, Item 4 of Paragraph 1 of Article 3 and
Paragraph 1 of Article 9 of the Republic of Lithuania Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts (wording of 7 July 2005) (petition No. 1B-36/2006);
(7) the petition of the Klaipėda Regional Administrative
Court, a petitioner, requesting to investigate whether 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 of Article 1, Item 4 of Paragraph 1 of Article 2 and
Paragraph 1 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" (wording of 6 April
1993), with Article 2, Item 4 of Paragraph 1 of Article 3 and
Paragraph 1 of Article 9 of the Republic of Lithuania Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts (wording of 7 July 2005) (petition No. 1B-46/2006);
(8) the petition of the Klaipėda Regional Administrative
Court, a petitioner, requesting to investigate whether 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 of Article 1, Item 4 of Paragraph 1 of Article 2 and
Paragraph 1 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" (wording of 6 April
1993), with Article 2, Item 4 of Paragraph 1 of Article 3 and
Paragraph 1 of Article 9 of the Republic of Lithuania Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts (wording of 7 July 2005) (petition No. 1B-50/2006);
(9) the petition of the Supreme Administrative Court of
Lithuania, a petitioner, requesting to investigate whether
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 of Article 1, Item 4 of Paragraph 1 of Article 2
and Paragraph 1 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" (wording of 6
April 1993), with Article 2, Item 4 of Paragraph 1 of Article 3
and Paragraph 1 of Article 9 of the Republic of Lithuania Law on
the Procedure of Publication and Coming into Force of Laws and
Other Legal Acts (wording of 7 July 2005) (petition No. 1B-57/
2006);
(10) the petition of the Klaipėda Regional Court, a
petitioner, requesting to investigate whether 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 of Article 1, Item 4 of Paragraph 1 of Article 2 and
Paragraph 1 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" (wording of 6 April
1993), with Article 2, Item 4 of Paragraph 1 of Article 3 and
Paragraph 1 of Article 9 of the Republic of Lithuania Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts (wording of 7 July 2005) (petition No. 1B-61/2006);
(11) the petition of the Klaipėda City Local Court, a
petitioner, requesting to investigate whether 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 of Article 1, Item 4 of Paragraph 1 of Article 2 and
Paragraph 1 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" (wording of 6 April
1993), with Article 2, Item 4 of Paragraph 1 of Article 3 and
Paragraph 1 of Article 9 of the Republic of Lithuania Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts (wording of 7 July 2005) (petition No. 1B-04/2007);
(12) the petition of the Klaipėda Regional Administrative
Court, a petitioner, requesting to investigate whether 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 of Article 1, Item 4 of Paragraph 1 of Article 2 and
Paragraph 1 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" (wording of 6 April
1993), with Article 2, Item 4 of Paragraph 1 of Article 3 and
Paragraph 1 of Article 9 of the Republic of Lithuania Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts (wording of 7 July 2005) (petition No. 1B-13/2007).
By the 2 April 2007 decision of the Constitutional Court of
the Republic of Lithuania, petition No. 1B-13/2006 of the group
of Members of the Seimas, petitions Nos. 1B-22/2006, 1B-26/2006,
1B-35/2006, 1B-36/2006, 1B-46/2006, 1B-50/2006 and 1B-13/2007 of
the Klaipėda Regional Administrative Court, petitions Nos. 1B-
28/2006 and 1B-04/2007 of the Klaipėda City Local Court, petition
No. 1B-57/2006 of the Supreme Administrative Court of Lithuania
and petition No. 1B-61/2006 of the Klaipėda Regional Court were
joined into one case and it was given reference number 14/06-22/
06-27/06-29/06-34/06-35/06-42/06-46/06-52/06-54/06-03/07-11/07.
The Constitutional Court
has established:
I
1. A group of Members of the Seimas, a petitioner, applied
to the Constitutional Court with the petition requesting to
investigate whether 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, 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) and with 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)
(petition No. 1B-13/2006).
2. The Klaipėda Regional Administrative Court, a
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 the petition 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 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) (petition No. 1B-22/2006).
3. The Klaipėda Regional Administrative Court, a
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 the petition 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 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) (petition No. 1B-26/2006).
4. The Klaipėda City Local Court, a petitioner, was
considering a civil case. By its ruling the said court suspended
the consideration of the case and applied to the Constitutional
Court with the petition 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 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) (petition No. 1B-28/2006).
5. The Klaipėda Regional Administrative Court, a
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 the petition 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 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) (petition No. 1B-35/2006).
6. The Klaipėda Regional Administrative Court, a
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 the petition 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 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) (petition No. 1B-36/2006)
7. The Klaipėda Regional Administrative Court, a
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 the petition 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 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) (petition No. 1B-46/2006).
8. The Klaipėda Regional Administrative Court, a
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 the petition 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 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) (petition No. 1B-50/2006).
9. The Supreme Administrative Court of Lithuania, a
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 the petition 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 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) (petition No. 1B-57/2006).
10. The Klaipėda Regional Court, a petitioner, was
considering a civil case. By its ruling the said court suspended
the consideration of the case and applied to the Constitutional
Court with the petition 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 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) (petition No. 1B-61/2006).
11. The Klaipėda City Local court, a petitioner, was
considering a civil case. By its ruling the said court suspended
the consideration of the case and applied to the Constitutional
Court with the petition 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 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) (petition No. 1B-04/2007).
12. The Klaipėda Regional Administrative Court, a
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 the petition 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 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) (petition No. 1B-13/2007).
II
The petitions of the petitioners are based on the official
provisions of the constitutional doctrine which construe
Paragraph 2 of Article 7 of the Constitution, under which, "only
laws which are published shall be valid", namely on the
provisions that: in a democratic state under the rule of law
there may not be any unpublished laws; the signing and official
publication of laws are a necessary condition of their coming
into force; official publication of laws, while keeping to the
procedure established in the Constitution and laws, is also a
necessary condition for the purpose that subjects of legal
relations might know what laws are valid, what their content is,
and that they might follow them; the constitutional requirement
that only laws which are published are valid is inseparable from
the constitutional principle of a state under the rule of law and
it is an important precondition of legal certainty; the notion
"to publish" of Paragraph 2 of Article 7 of the Constitution also
means that the laws must be published publicly as law cannot be
non-public; the notion "laws" which is employed in Paragraph 2 of
Article 7 of the Constitution should not be construed only
literally, but it should be construed in an expanding manner, as
a notion that includes not only legal acts, which have the power
of the law, but also other legal acts; all parts of a normative
legal act (as well as its annexes) constitute a single whole, are
inseparably interrelated and have equal legal power; the annexes
may not be separated from a legal act because, upon changing the
legal regulation established therein, the entire contents of the
legal regulation established in the legal act is changed.
Meanwhile, according to the petitioners, the Planning Scheme
(General Plan) of Curonian Spit National Park (hereinafter also
referred to as the Scheme) which was approved by Government
Resolution No. 1269 "On the Planning Scheme (General Plan) of
Curonian Spit National Park" of 19 December 1994 is an
inseparable part of this Government resolution, however, it was
not published in the official gazette "Valstybės žinios" (the
official source of publication of the legal acts) either together
with this Government resolution, or later. In the opinion of the
petitioners, this is not in line with the said constitutional
requirements and the procedure of publication of the legal acts
which was established by the law at the time of adoption (and at
present as well) of the disputed Government resolution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations (with annexes)
were received from R. Klovas, the representative of the
Government, the party concerned, in which it is stated that the
disputed Government resolution is not in conflict with the
Constitution, with the Law "On the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts of the Republic of
Lithuania" and with the Law on the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts. The position of
the representative of the party concerned is grounded on the
following arguments.
1. The legislator has the right, while taking account of
the specificity of the legal acts, to establish a separate source
and way of the publication of certain legal acts, the only
important thing is that the said legal acts be published publicly
and that the subjects of law could familiarize themselves with
the said acts, as well as that the legal act would be published
in the official language and in its entirety (including all its
constituent parts). Because of the fact that the general
procedure of publication and coming into force of laws which is
established in the Republic of Lithuania Law "On the Procedure of
Drafting Laws and Other Legal Acts of the Republic of Lithuania"
and the Law on the Procedure of Publication and Coming into Force
of Laws and Other Legal Acts would not ensure publicity and
formality of the territorial planning documents as specific legal
acts, the procedure of their preparation, publication and coming
into force is established by another lawthe Republic of
Lithuania Law on Territorial Planning.
1.1. Under the Law on Territorial Planning, the publicity
of territorial planning documents is first of all ensured by the
participation of the public in territorial planning. This law
establishes the procedures which ensure the possibility of the
subjects of law to familiarize themselves with the territorial
planning documents which are being prepared and already drafted
and actively to participate in their preparation. For instance,
the organizer of the planning has the duty to announce in public
the decisions regarding the beginning of the preparation of the
territorial planning documents and the purposes of the planning,
and upon preparation of the territorial planning document, the
organizer of the planning presents it to society during special
procedures of consultation and public consideration. The society
has the right to submit proposals regarding the territorial
planning documents to the organizer of the planning in writing
during all the period of time of the preparation of the
territorial planning documents till the public meeting and during
the public meeting, as well as during consultation; the organizer
of the planning answers to the persons who submitted the
proposals with relevant reasons in writing; the answer may be
appealed in the institution which performs the supervision of
state territorial planning, which must provide with the answer
with relevant reasons; this answer, under the procedure
established by laws, may be appealed in court; the territorial
planning document may not be submitted for approval without its
prior consideration under the procedure established by the law.
1.2. A special procedure of the publication and coming into
force of territorial planning documents has also been
established. According to Paragraph 10 of Article 11 of the Law
on Territorial Planning, the approved common (general) plan of
the state or a county shall come into force on the next day after
the decision regarding the approval of the common (general) plan
has been published in the official gazette "Valstybės žinios" by
the institution which approves it, unless the decision itself
establishes a later date of its coming into force. According to
Paragraph 8 of Article 18 of the said law, the approved special
plan shall come into force the next day after the decision of the
Seimas, the Government, the ministries or other institutions of
the Government and other state institutions regarding the
approval of the special plan has been published in the official
gazette "Valstybės žinios", the decision of institutions of
governance of higher administrative units and municipalities
regarding the approval of the special plan has been published in
the local press unless the decision itself establishes a later
date of its coming into force. Thus, according to this law, only
the legal act (law, resolution) which approved the territorial
planning document must be published, while the approved
territorial planning document itself is not published in the
official gazette "Valstybės žinios".
1.3. Due to the limited technical possibilities, such legal
acts (schemes) (especially the territorial planning documents
approved earlier) can most often be printed only in an undersized
form so it becomes impossible to read them and to understand
their contents. The way of publication of the legal acts which is
established in the Law on the Procedure of Publication and Coming
into Force of Laws and Other Legal Acts would not meet the
requirement of the formality of the publication of the
territorial planning documents, as specific legal actsit would
not ensure that the established legal act is namely that legal
act which was adopted by the competent institution.
1.4. The publishing of the schemes, drawings, consideration
protocols, co-ordination certificates and other constituent parts
of one territorial planning document in the official gazette
"Valstybės žinios" would be very expensive to the state. For
instance, it would be possible to publish the Planning Scheme
(General Plan) of Curonian Spit National Park in a non-standard
and non-one-piece publication of the official gazette "Valstybės
žinios", but it would also cost (without the value added tax)
170,000 litas to the state (the information of the state
enterprise (hereinafter also referred to as the SE) Seimas
publishing house "Valstybės žinios"), and at the moment 21,275
territorial planning documents are registered (the data of the
head office of the Register of the Territorial Planning Documents
of the Republic of Lithuania).
1.5. Thus, while seeking to ensure the implementation of
the requirements of the Constitution regarding publishing of
territorial planning documents, the Law on Territorial Planning
established such legal regulation that only the legal act which
approves the territorial planning document will be published
under the general procedure (in the official gazette "Valstybės
žinios"), and the publicity and formality of the publication of
this document itself are ensured in the ways established in the
said law.
2. The Scheme was published while following the
constitutional requirements for the publication of the legal
acts.
2.1. The Planning Scheme (General Plan) of Curonian Spit
National Park was prepared and approved, before coming into force
of the Law on Territorial Planning, under the Provisional
Regulations for the Territorial Planning of the Republic of
Lithuania (hereinafter also referred to as the Provisional
Regulations) which were approved by Government of the Republic of
Lithuania Resolution No. 161 "On the Territorial Planning of the
Republic of Lithuania" of 12 March 1993, under Item 5.2.2 of
which, plans of special purpose territories (land, forestry and
water economy, recreational, protected areas, etc.) and
infrastructure systems were attributed to territorial planning
documents, while under Item 4 thereof, management of special
purpose territories or landscape complexes (land use planning,
forest management, urban planning, management of recreational and
protected territories, arrangement of communications) was
attributed to special territorial planning.
Upon coming into force of the Law on Territorial Planning,
the question of the legal status of the Scheme was decided by
Government of the Republic of Lithuania Resolution No. 617 "On
Application of the Republic of Lithuania Law on Territorial
Planning to the Approved Territorial Planning Documents the
Preparation of Which was Begun and not Finished Before Coming
into Force of this Law" of 24 May 1996 (hereinafter also referred
to as Government Resolution No. 617 of 24 May 1996), under Item 1
of which, the general plans, detailed plans and projects and
regeneration projects and schemes of towns (or parts thereof),
towns and villages (rural districts), projects and schemes of the
arrangement of communication and engineering infrastructure
networks and objects, projects and schemes of territorial
development, projects and schemes of lot marking and red lines,
planning schemes of state parks, land use planning and forestry
projects and other documents which provide for the conditions of
land use of the territories and development of the activity in
them, the rights and obligations of land users are territorial
planning documents, if they had been approved under the
established procedure before coming into force of the Law on
Territorial Planning. The said plans had to be registered at the
state register of the territorial planning documents. The
Planning Scheme (General Plan) of Curonian Spit National Park was
registered at the state register of the territorial planning
documents as a special document of territorial planning. In this
way, a possibility was created for all persons to familiarize
themselves with this territorial planning document.
2.2. According to the representative of the party
concerned, by its letter of 1 August 2006, the then Seimas
publishing house "Valstybės žinios" stated that in 1994 there
were no technical possibilities to publish the entire Scheme (all
its constituent parts) in the official gazette "Valstybės žinios"
in the size in which it was approved by the Government (annex to
the written explanations of R. Klovas, the representative of the
Government, the party concernedletter of M. Daulenskis, Director
of the Seimas publishing house "Valstybės žinios", No. S-127 "On
Publishing Territorial Planning Documents" of 1 August 2006).
Thus, according to R. Klovas, if one assented to the
position set forth in the petitions of the petitioners that
Government Resolution No. 1269 of 19 December 1994 and the
territorial planning document approved by it had to be published
according to the requirements of Item 1 of Article 1, Item 4 of
Article 1 and Paragraph 1 of Article 8 of the then valid Law "On
the Procedure of Publication and Coming into Force of Laws and
Other Legal Acts of the Republic of Lithuania", one would have to
recognize that, first, the legislator established such procedure
of publication of legal acts, which is impossible to implement
and which cannot ensure the requirements of publication of the
legal acts which are enshrined in the Constitution; second, that
also all the other territorial planning documents which had not
been published in the official gazette "Valstybės žinios" because
there were no technical possibilities to do so, are also not
valid.
2.3. The publicity of the publishing of the Scheme was
first of all ensured by the fact that during its preparation it
was discussed with society. The Provisional Regulations
established that the ordering customers of the territorial
planning documents (projects) must announce to society about the
aims, the beginning and the end of the design works and establish
the terms for submitting claims (Item 19.2), provide the society
with the territorial planning document for familiarization and
establish the time period for its consideration which would be
not shorter than 2 months (Item 19.3); in this period of time the
persons have the right to submit their remarks and proposals
which, when the time for consideration is over, must be analyzed
by the ordering customer in writing in one month's time and
reasoned conclusions must be announced to society (Item 19.3);
while taking account of the conclusions from the experts, the
institution which approves the document shall consider the
submitted proposals and claims which were received during the
preparation and co-ordination of the territorial planning
documents (Item 21); if the approved territorial planning
document is amended, the initiators of such amendments or
supplements must inform the concerned natural and legal persons
about their intentions, establish the term for submitting claims
and, upon analyzing them, announce their conclusions in writing
(Item 22). When preparing and approving the Planning Scheme
(General Plan) of Curonian Spit National Park, all these
procedures were followed, thus, the possibility for the subjects
of law to familiarize themselves with the Scheme and to influence
its preparation was ensured.
2.4. The Scheme was registered at the register of the
territorial planning documents, where all the persons may
familiarize themselves with this territorial planning document.
2.5. On 1 January 1996, the Law on Territorial Planning
came into force, which, taking account of the specificity of the
territorial planning documents and technical and financial
possibilities, provides for how the publicity and formality of
the publishing of territorial planning documents is ensured.
Article 26 of the said law established the duty of the planning
organizer to announce the beginning and purposes of the
preparation of the territorial planning documents, it provided
for the society's familiarization with the prepared territorial
planning documents and established the procedure of discussion
with the society and the procedure for submitting of the
society's proposals and their consideration, while Article 24
established the duty to register the approved territorial
planning document at the register of territorial planning
documents. The publishing of the Scheme was completely in line
with these requirements.
2.6. According to the representative of the party
concerned, at present the Scheme is kept at the State Protected
Areas Service under the Ministry of Environment, its copy is at
the register of the territorial planning documents. Here,
according to R. Klovas, everyone who wishes so may familiarize
himself with the Scheme and make its copies.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, the Local Prosecutor's Office of
Klaipėda City sent letter No. 22-8074 "On Providing Information"
of D. Žeruolis, Deputy Government Secretary, dated 21 December
2006, which had been sent to the Local Prosecutor's Office of
Klaipėda City. In this letter it is stated that the disputed
Government resolution was adopted upon submission of the then
Republic of Lithuania Ministry of Construction and Urban Planning
and that due to the large size of the Scheme, according to the
then practice, only the summary of the Scheme was submitted to
the Government and the full-size Scheme was left in the archive
of the former Ministry of Construction and Urban Planning; it is
also stated that the state institutions were sent only Government
Resolution No. 1269 of 19 December 1994 with an annex, in which
the main statements of the Scheme were set forth.
V
1. At the hearing of the Constitutional Court, the
representatives of the Seimas, the petitioner, who were S.
Girdauskas, a Member of the Seimas, and G. Černiauskas, an
advocate, virtually repeated the arguments set forth in the
petition of the group of Members of the Seimas, the petitioner,
as well as provided with additional explanations. It was inter
alia stated that the persons who wanted to familiarize themselves
with the Scheme (inter alia advocates), came across
"insurmountable obstacles".
At the hearing of the Constitutional Court, G. Černiauskas
asked to supplement the case with the answer of J. Bučas,
Director of the Land Management Centre of the Faculty of
Engineering and Architecture of the Kaunas University of
Technology, dated 28 March 2006, to the request of the advocate
G. Černiauskas, dated 27 March 2006. The Constitutional Court
granted this request.
2. At the hearing of the Constitutional Court, the
representative of the Government, the party concerned, who was R.
Klovas, virtually repeated the arguments set forth in his written
explanations, as well as presented additional explanations.
At the hearing of the Constitutional Court, R. Klovas asked
to supplement the case with letter No. 8.2-409(10) "On Providing
Information" of the Office of the Prosecutor General of the
Republic of Lithuania of 8 February 2007 to the Ministry of
Environment with an annexthe transfer-reception act of the
Planning Scheme (General Plan) of Curonian Spit National Park and
the principled plans of the park's settlements. The
Constitutional Court granted this request.
3. The following witnesses were questioned at the
Constitutional Court hearing: R. Baškytė, Director of the State
Service for State Protected Territories under the Ministry of
Environment, E. Blaževičius, Director of the Institute of
Architecture and Construction of the Kaunas University of
Technology, M. Daulenskis, Director of the SE Seimas publishing
house "Valstybės žinios", D. Kniežienė, Production Director of
the joint-stock company (hereinafter referred to as the JSC)
"Spauda" and Ž. Mačerinskas, Head of the Information Systems
Division of the Environmental Protection Agency.
4. The following specialists took the floor at the
Constitutional Court hearing: M. Baltrušaitis, Head of
Cartography Division of K. Mickevičius publishing house "Briedis
", A. Paltarackas, Head of Projects and Services Department of
the closed joint-stock company "HNIT-BALTIC" and P. Šulcas, Head
of the Computer Networks Laboratory of the Institute of
Mathematics and Informatics.
The Constitutional Court
holds that:
I
1. In this constitutional justice case, one disputes the
compliance of the Government resolution which approved the
Planning Scheme (General Plan) of Curonian Spit National Park
with the Constitution and 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 with subsequent amendments and
supplements), which, since 1 January 2003, has been referred to
as the Law on the Procedure of Publication and Coming into Force
of Laws and Other Legal Acts.
2. On 23 April 1991, the Supreme Council of the Republic of
Lithuania adopted Resolution No. I-1244 "On Establishing of
Dzūkija, Curonian Spit and Žemaitija National Parks, Trakai
Historic National Park and Viešvilė State Nature Reserve"
(hereinafter referred to as Supreme Council Resolution No. I-1244
of 23 April 1991). This Supreme Council Resolution came into
force on 1 May 1991.
Supreme Council Resolution No. I-1244 of 23 April 1991,
while seeking "to preserve the most valuable Lithuanian landscape
complexes and ethno-cultural heritage for the people of Lithuania
and for the future generations", inter alia established: "To
establish the national parks and the state reserve (according to
the prepared schemes) which are provided for in the Complex
Nature Protection Scheme of the Republic of Lithuania: <
>
Curonian Spit National Parkarea of 19 thousand ha (9 thousand ha
thereofCuronian Lagoon and the Baltic Sea)" (Sub-item 2 of Item
1); "To commission <
> the Government <
> upon submission of the
Department of Environmental Protection and the Inspectorate of
Cultural Heritage <
> before 1 November 1991 to approve <
> the
Regulations for Curonian Spit National Park <
>" (Sub-item 1 of
Item 2).
3. On 22 April 1992, the Government adopted Resolution No.
283 "On Approving the Provisional Regulations for Dzūkija,
Curonian Spit and Žemaitija National Parks and Trakai Historic
National Park and the Regulations for Viešvilė State Nature
Reserve" (hereinafter referred to as Government Resolution No.
283 of 22 April 1992), Item 1 of which approved inter alia the
Provisional Regulations for Curonian Spit National Park. This
Government resolution came into force on 22 April 1992.
Paragraph 2 of Item 2 of the said provisional regulations
(wording of 22 April 1992) established: "The territory of
Curonian Spit National Park shall be managed under <
> the
general plan of this park approved by the Government and the
projects (prepared on the basis of this plan and co-ordinated
under established procedure) concerning forest management, land
management, water management, settlements' planning, regeneration
of villages, recreation, roads and engineering communications as
well as other projects."
4. On 19 December 1994, the Government adopted Resolution
No. 1269 "On the Planning Scheme (General Plan) of Curonian Spit
National Park", whose compliance with the Constitution and 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 with
subsequent amendments and supplements), which, since 1 January
2003, has been referred to as the Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts,
is disputed in this constitutional justice case. This Government
resolution came into force on 24 December 1994.
4.1. Government Resolution No. 1269 (wording of 19 December
1994) of 19 December 1994 established:
"The Government of the Republic of Lithuania shall resolve:
1. To approve the Planning Scheme (General Plan) of
Curonian Spit National Park. The main statements are attached.
2. The Ministry of Construction and Urban Planning together
with the Boards of the towns of Klaipėda and Neringa, the Board
of the Šilutė district and the ministries concerned have to
consider the question on transferring of a part of the Curonian
Lagoon water area and the settlement of Smiltynė to the
municipality of the town of Neringa and to provide the Government
of the Republic of Lithuania with a draft decision before 1 May
1995.
3. The Ministry of Environment has to provide the
Government of the Republic of Lithuania with a draft resolution
on natural monuments in the Curonian Spit before 1 August 1995.
4. To assign the Ministry of Environment together with the
Ministry of Construction and Urban Planning, the Ministry of
Forestry and the Boards of the towns of Neringa and Klaipėda to
improve the Regulations for Curonian Spit National Park and to
present them to the Government of the Republic of Lithuania for
approval before 15 March 1995.
5. The Board of the town of Neringa has to do the
following:
5.1. To order hydrogeologic research of the water areas of
Juodkrantė, Nida and Pervalka-Preila to be carried out in 1995
and to establish the areas of sanitary protection;
5.2. Upon carrying out of hydrogeologic research of the
water areas of Neringa and preparation of the study of the water
and sewerage systems and equipment, to specify, to co-ordinate
with the Ministry of Environment and the Ministry of Construction
and Urban Planning and to approve the scheme of the water and
sewerage systems and installation."
4.2. This Government resolution had the annex "The Main
Statements of the Planning Scheme (General Plan) of Curonian Spit
National Park", which was published in the official gazette
"Valstybės žinios" and established the following:
"General Part
1. The Curonian Spit is a unique landscape complex created
by nature and man which is included in the system of the values
of nature and culture protected by Lithuania and Europe. In 1991,
it was granted the status of a national park.
2. The Planning Scheme (General Plan) of Curonian Spit
National Park (hereinafter referred to as the National Park) was
prepared for the period till the year 2005 according to the
scheme concept of the land management zoning which was created in
1992 and co-ordinated with the institutions concerned.
3. The area of the National Park is 26.4 thousand ha (9.7
thousand ha of land, the Curonian Lagoon water area4.2 thousand
ha, and the Baltic Sea12.5 thousand ha).
4. The Regulations for the Planning Scheme (General Plan)
of the National Park creates the following preconditions:
4.1. To protect, use rationally and restore the values and
recreational resources of the nature, cultural heritage and
landscape;
4.2. To continue the traditions of construction of
settlements and to create favourable living conditions there;
4.3. To develop the engineering infrastructure;
4.4. To develop the recreational and traditional economic
activity;
4.5. To demilitarize the territory.
5. The National Park is administered following the laws of
the Republic of Lithuania, the resolutions of the Government of
the Republic of Lithuania, other normative acts and the Planning
Scheme (General Plan) of the National Park.
Functional Territorial Zoning
6. According to the values of the nature and culture, the
forms and use of their protection, the territory of the National
Park is divided into the following functional areas:
Conservational (nature reserves, landscape reserves,
urbanistic and ethno-cultural reserves);
Protected;
Recreational;
Residential;
Economic.
Conservational Area
7. The conservational area of the National Park is
comprised of Grobštas and Naglis nature reserves, Parnidis,
Karvaičiai, Juodkrantė and Lapnugaris landscape reserves, the
Senoji Ieva mountain settlements, the reserves of the resort part
of the settlement in Juodkrantė, the 1st and 2nd zones of the
settlement of Inkaras, Naujieji Karvaičiai, Fishermen settlement
in Juodkrantė and Old Preila ethno-cultural reserves.
8. The purpose of the nature reserves is to preserve the
unique complexes of the landscape of the great dune ridge and
grey dunes, mound ridge and coastal sand plains.
9. The purpose of the landscape reserves is to preserve the
peculiar landscape of the Curonian Spit with different fragments
of the great dune ridge and foredune, the dunes, the variety of
costal sand plains and the biggest lagoonal capes.
10. In the urbanistic and ethno-cultural reserves, one can
reconstruct and expand buildings, change the boundaries of the
lots, construct new buildings and administer the territory only
according to the detailed project which is prepared and approved
under the established procedure.
Protected Area
11. The protected area is comprised of the protected areas
of the Nida water area and the Smiltynė stronghold.
Recreational Area
12. The recreational area of the National Park is comprised
of parks and recreational forests in the forests of settlements
and costal dunes.
The Recreational programme provides that in the whole
territory of the national park, save the nature reserves, one
will develop educational recreation, the purpose of which is to
acquaint the visitors with the values of nature, culture and
history. Water tourism and sport will be promoted. It is not
provided to build any new leisure establishments in the
settlements in other territory of the park, either.
The Government of the Republic of Lithuania will establish
to whom the objects of the former military units of the Russian
Federation which are located in Juodkrantė will belong and how
they will be used.
Residential Area
13. The residential area of the national park consists of
the settlements of Nida, Preila, Pervalka, Juodkrantė, Alksnynė
and Smiltynė. Their territories, save the settlement of Pervalka,
are not expanded. The need for the living space is satisfied by
managing the existing buildings and increasing the density of the
construction area. Only the natural increase of the population
which ensures the economic activity of the park and self-
governance is predicted.
14. The projects of construction, reconstruction and
restoration projects of the residential buildings, and the
objects of service and other objects have to be prepared
following the principled plans of the settlements and regions of
Nida, Preila, Pervalka, Alksnynė and Smiltynė which were approved
under the established procedure.
Economic area
15. The economic area of the national park consists of the
existing communal areas and the territories in the settlements of
Nida, Preila, Pervalka, Juodkrantė and Alksnynė which are
provided for expansion.
Management of forests, and the coasts of Curonian Lagoon
and the Baltic Sea
16. The forests are managed according to the project of the
forest management which has been prepared on the basis of the
Planning Scheme (General Plan) of the national park.
17. The coasts of Curonian Lagoon and the Baltic Sea shall
be managed in a differentiated manner, taking account of the
parameters of the coastal change.
Engineering infrastructure
18. The water resources of the Nida and Preila-Pervalka
water area are sufficient; however, one must carry out water
research, establish and begin to apply a more efficient water
improvement technology. The water area of Juodkrantė is exploited
without hydrogeological research, thus, its exploitable resources
are not established. One must research and establish the
groundwater stock of the Juodkrantė water area and establish the
areas of sanitary protection of the water areas of Nida, Preila-
Pervalka and Juodkrantė.
19. In the settlements of the national park, the systems of
collection of waste water are established, however, only in
Preila and Pervalka the waste water is cleaned in summer. In
other seasons, the waste water of the settlements is not cleaned
and so it flows into Curonian Lagoon.
The cleaning equipment of rain watersand sumps, oil
catchers and filtersare planned to establish on the coasts of
Curonian Lagoon and the Baltic Sea, in the communal area and
other places.
20. The electricity and the present boiler-houses which
should be gradually reorganized into electrode accumulation
boiler houses are to be used for heating.
21. The electricity is supplied via the existing 110kW and
35 kW double circuit electricity transmission line from the
Klaipėda district substation. In order that the national park
settlements are better supplied with electricity new
transformation substations are designed to be built and the
existing ones as well as other electricity transmission lines
installations are planned for reconstruction.
22. The system of roads and streets in the Curonian Spit is
not to be changed. It is necessary to improve their paving as
well as to reconstruct the crossroads of the main road and
entrances to Nida, Preila and Pervalka. The intensity of the
traffic and the transit transportation has to be regulated.
23. It is necessary to encourage the transportation of
passengers and freight by water transport. The ports and quays of
Nida, Preila, Pervalka, Juodkrantė and Alksnynė should be fitted
for slow-speed and high-speed passenger and freight ships,
yachts, boats and pedalos.
Implementation of the work programme of the national park
24. The Boards of the towns of Klaipėda and Neringa which
organize the activity of the national park shall implement the
work program of the national park. For this purpose, the funds
shall be allocated from the budgets of the State of Lithuania and
the municipalities, as well as from other sources."
5. The entire Scheme which was approved by the Government
resolution was not published in the official gazette "Valstybės
žinios".
6. On 21 December 1995, the Government adopted Resolution
No. 1603 "On Approving the Regulations for Curonian Spit National
Park (hereinafter referred to as Government Resolution No. 1603
of 21 December 1995) which came into force on 30 December 1995.
By Item 1 of this Government resolution the Regulations for
Curonian Spit National Park were approved, while by Item 3
thereof Government Resolution No. 283 of 22 April 1992 was
partially amended; by it inter alia the Provisional Regulations
of Curonian Spit National Park which had been approved by
Government Resolution No. 283 of 22 April 1992 were recognized as
null and void (Item 3.2).
Item 4 of the Regulations for Curonian Spit National Park
which were approved by Government Resolution No. 1603 of 21
December 1995 established that the territory of the national park
which is administered by the municipalities of the towns of
Neringa and Klaipėda, shall be managed according to the planning
scheme (general plan) approved by the Government and pursuant to
the prepared and under the established procedure co-ordinated and
approved detailed plans of the villages and the projects of
forest management, water management, recreation, management of
immovable cultural values, roads and engineering communications,
and other projects.
7. On 30 June 1997, the Government adopted Resolution No.
690 "On Partial Amendment of the Planning Scheme (General Plan)
of Curonian Spit National Park which was 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" (hereinafter referred to as Government Resolution
No. 690 of 30 June 1997) which came into force on 5 July 1997.
Government Resolution No. 690 of 30 June 1997 established:
"The Government of the Republic of Lithuania shall decide:
By partially amending the Planning Scheme (General
Planning) of Curonian Spit National Park which was 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' (Official Gazette Valstybės žinios,
1994, No. 99-1977):
(1) To set forth Item 10 (Volume I, Page 115) of Sub-
chapter 'Principled plans of villages' of Chapter 3 'Draft
proposals' as follows:
'10. In the place provided for in the detailed plan, to
build a Roman Catholic community church in Nida, Taikos street,
above the building of the post, in the lot of 3520 square
metres'.
2. To set forth Chapter 'Television' (Volume II, Page 57)
as follows:
'Television. The present radio and television tower in Nida
may be reconstructed according to the prepared project as a
provisional mechanism'."
8. On 19 March 1999, the Government adopted Resolution No.
308 "On Approving the Regulations for Curonian Spit National
Park" (hereinafter referred to as Government Resolution No. 308
of 19 March 1999) which came into force on 25 March 1999. Item 1
of this Government resolution approved the new regulations for
Curonian Spit National Park, and Item 2 recognized Government
Resolution No. 1603 of 21 December 1995, thus, also the (former)
regulations of Curonian Spit National Park approved by the same
resolution as null and void.
Item 4 of the Regulations for Curonian Spit National Park
which were approved by Government Resolution No. 308 of 19 March
1999 established:
"The territory of the national park which is administered
by the municipalities of the towns of Neringa and Klaipėda, shall
be managed according to the planning scheme (general plan)
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 (Official Gazette Valstybės
žinios, 1994, No. 99-1977)' and pursuant to the prepared and
under the established procedure co-ordinated and approved
detailed plans of the villages and the projects of forest
management, water management, recreation, management of immovable
cultural values, roads and engineering communications, and
other."
9. On 16 June 2004, the Government adopted Resolution No.
759 "On Amending Government of the Republic of Lithuania
Resolution No. 308 'On Approving the Regulations for Curonian
Spit National Park' of 19 March 1999" which came into force on 20
June 2004. This Government resolution amended Government
Resolution No. 308 of 19 March 1999 and set it forth in a new
wording, thus, also the Regulations for Curonian Spit National
Park (wording of 19 March 1999), which were approved by
Government Resolution No. 308 of 19 March 1999, were amended and
set forth in a new wording.
Item 4 of the Regulations for Curonian Spit National Park
(wording o 16 June 2004) provides that "the national park shall
be managed according to the Planning Scheme (General Planning) of
Curonian Spit National Park approved by <
> Government Resolution
No. 1269 of 19 December 1994 (Official Gazette Valstybės žinios,
1994, No. 99-1977). The towns and townlets which are located
in the state parks shall be managed according to their prepared
and approved general and detailed plans, whose solutions are not
in conflict with the solutions of the Planning Scheme (General
Plan) of the National Park <
>. Other objects which are located
in the National Park shall be managed according to the special
planning documents of management of immovable cultural values,
forest management, land management, water management, recreation,
roads, engineering communications and other special planning
documents or according to the documents of strategic planning of
the protected territories".
10. On 22 December 2005, the Government adopted Resolution
No. 1378 "On Amending Government of the Republic of Lithuania
Resolution No. 1269 'On the Planning Scheme (General Plan) of
Curonian Spit National Park' of 19 December 1994" (hereinafter
referred to as Government Resolution No. 1378 of 22 December
2005) which came into force on 25 December 2005.
Government Resolution No. 1378 of 22 December 2005 amended
Item 2 (wording of 19 December 1994) of the Annex "The Main
Statements of the Planning Scheme (General Plan) of Curonian Spit
National Park" of Government Resolution No. 1269 "On the Planning
Scheme (General Plan) of Curonian Spit National Park" of 19
December 1994 and set it forth in a new wording.
Item 2 (wording of 22 December 2005) of this Annex
provides: "<
> the Planning Scheme (General Plan) of Curonian
Spit National Park was prepared according to the concept of the
land management zoning which was created in 1992 and co-ordinated
with the institutions concerned." Thus, the provision that the
Scheme was prepared "for the period till the year 2005" was no
longer included.
11. On 31 March 1992 (when the accession document was
returned to the Director-General of the United Nations
Educational, Scientific and Cultural Organization (UNESCO)), the
Republic of Lithuania joined the Convention Concerning the
Protection of the World Cultural and Natural Heritage
(hereinafter referred to as the Convention) which was adopted on
16 November 1972, in Paris. In the Republic of Lithuania, the
Convention came into force on 30 June 1992. Joining the
Convention, the Republic of Lithuania committed to protect the
cultural and natural heritage which is in its territory and
gained the right to propose the places of its territory to be
included in the list of the World Heritage.
By its letter of 21 June 1999, the President and the
Secretary General of the Lithuanian National Commission for
UNESCO proposed to include the Curonian Spit into the list of the
World Heritage (up to then, it had been included into the
Tentative List of the World Heritage).
On 29 November 2000, at the twenty-fourth session of the
UNESCO World Heritage Committee (which took place on 27 November-
2 December 2000, in Cairns (Australia)), the Curonian Spit was
included in the list of the UNESCO World Heritage subsequent to
the following criterion: "The Curonian Spit is an outstanding
example of a landscape of sand dunes that is under constant
threat from natural forces (wind and tide). After disastrous
human interventions that menaced its survival the Spit was
reclaimed by massive protection and stabilization works begun in
the 19th century and still continuing to the present day."
One must pay heed to the fact that upon inclusion of the
cultural or natural value into the list of the World Heritage,
the state continues to implement its obligations to protect it
and to transfer it to the future generations with the same values
for which it was included into the List of the World Heritage;
the state must follow the Convention and the guidelines for the
implementation of the Convention.
12. While summing up, one needs to hold that the State of
Lithuania has always treated and treats the Curonian Spit as a
unique landscape complex created by nature and mana territory
which is to be protected and to which particular legal treatment
has to be established; it is a universally known fact.
Such treatment was determined by the fact that, as it was
noted in the official documents, in which it was proposed to
include the Curonian Spit in the list of the World Heritage, the
landscape of the Curonian Spit was formed not only by the natural
processes, but also by the activity of the human being, thus, it
reflects the interaction of the natural environment and the human
being; the Curonian Spit is an excellent illustration of the
evolution of the community which was engaged in fishing; up to
the present day, the formation of the landscape in the Curonian
Spit is still in process; here the social role of the modern
society which is related to the traditional lifestyle and in
which the evolutionary processes are still in progress is still
active; the Curonian Spit reflects the material changes which
have been taking place during long decades, and which are closely
related with the interaction of the natural forces and the human
being; in the Curonian Spit one can still see the relict
landscape where the evolutionary processes are over; there is the
ethnographic heritage of the Curonian tribe here, which lived in
the Curonian Spit for a long time (and which is extinct now). In
the said documents it is also noted that in the Curonian Spit
there are also the following examples of the cultural heritage:
fishermen settlements in which the interaction of man and nature
is, from the ethno-cultural, historic and aesthetic point of
view, of an exceptional universal value; by its scale unique
works of architecture which, from the artistic and scientific
points of view, are of an exceptional value; archaeological
places which are especially significant due to its villages which
were swallowed up by the moving sand. It also needs to be noted
that the particular importance of the Curonian Spit is also
reflected by the natural and cultural heritages which are
inwrought in a picturesque manner and which is not only related
to the material or spiritual aspect, but also to the experience
which was gained by every generation of the local people, and
this helps to rebuild the lost natural systems of the Curonian
Spit.
In its ruling of 13 May 2005, the Constitutional Court held
that under the Constitution, natural environment, fauna and
flora, individual objects of nature as well as districts of
particular value are the national values of universal
significance; to ensure their protection and rational use and
augmentation of natural resources is the public interest to
guarantee which is the constitutional obligation of the state.
13. In the context of the constitutional justice case at
issue, it also needs to be emphasized that the legal acts of the
Republic of Lithuania (issued by the institutions of the
legislative or executive power) enshrined the principled
provision that Curonian Spit National Park will be managed
according to the Planning Scheme (General Plan) of Curonian Spit
National Park approved by the Government.
Thus, no decisions related to the administration of the
territory of Curonian Spit National Park (inter alia with the
detailed plans of the settlements, forest management, land
management, water economy, planning of settlements, countryside
regeneration, road and engineering communications, etc.) could
(or can at present) be adopted without taking account of the said
Scheme approved by the Government and it could not (and cannot at
present) be in conflict with the solutions of the said Scheme.
Disregarding of these solutions, particularly knowing that the
State of Lithuania has always treated and treats the Curonian
Spit as a unique landscape complex created by nature and mana
territory which is to be protected and to which particular legal
treatment is to be established, which is a universally known
factwould not be in compliance with the general principle of law
bona fides.
Otherwise, not only the identity and integrity of the
Curonian Spit as a unique landscape complex created by nature and
mana territory which is to be protectedwould be violated, but
one would also violate the imperatives of Articles 53 and 54 of
the Constitution, inter alia the provision of Paragraph 1 of
Article 54 of the Constitution that the state shall take care of
the protection of the natural environment, wildlife and plants,
individual objects of nature and areas of particular value and
shall supervise a sustainable use of natural resources, their
restoration and increase, and the provision of Paragraph 3 of
Article 53 that the state and each person must protect the
environment from harmful influences; one would also clearly
violate the international obligations of the Republic of
Lithuania.
14. On the other hand, the peremptory requirement to
preserve the Curonian Spit and to transfer it to the future
generations, which stems from the Constitution and the
international obligations of the Republic of Lithuania, does not
mean that the institutions of the State of Lithuania, which,
while regulating, within their competence and by the legal acts,
the relations which are related to the administration of the
territory of Curonian Spit National Park (inter alia with the
detailed plans of the settlements, forest management, land
management, water economy, planning of settlements, countryside
regeneration, road and engineering communications, etc.) may
disregard the provisions of the Constitution, inter alia the
concept of constitutional law regarding the official and public
publishing of the acts.
II
1. In this constitutional justice case, the following has
been established:
- The Scheme is composed of 18 volumes (more than 1,400
pages) which include not only the textual, but also graphic parts
(not only written text but also drawings, etc.); moreover, the
graphic part also includes the drawings of large size (51.5 x 226
cm, 51 x 221 cm, 59.5 x 100 cm, 43 x 161.5 cm, 59.5 x 167 cm,
59.5 x 171 cm, 59 x 189.5 cm, 59 x 207 cm, etc.);
- in December 1994, at the time when the Scheme was
approved by the Government, Government resolutions were
officially published in the official gazette "Valstybės žinios",
which was printed by the JSC "Spauda" (the testimony of the
witness D. Kniežienė at the Constitutional Court hearing);
- in 1994, in Lithuania, it was in general technically
possible to print such document as the Planning Scheme (General
Plan) of Curonian Spit National Park, however, it would have been
difficult inter alia to ensure the integrity of such document
(the explanations of the specialist M. Baltrušaitis at the
Constitutional Court hearing);
- publishing the Scheme namely in the official gazette
"Valstybės žinios", in its entirety (all its constituent parts)
in such size, in which the Scheme was approved by the Government,
and in such edition and size, in which at that moment the
official gazette "Valstybės žinios" was printed, without losing
the informational value (clarity, quality, etc.) of the Scheme,
was virtually impossible at that time and for a long time
afterwards due to the lack of technical possibilities (the annex
to the written explanations of R. Klovas, the representative of
the Government, the party concernedletter No. S-127 "On
announcing the territorial planning documents" of 1 August 2006
of M. Daulenskis, director of the SE Seimas publishing house
"Valstybės žinios"; the testimonies of the witnesses M.
Daulenskis and D. Kniežienė at the Constitutional Court hearing).
2. In this constitutional justice case, it was also
established that at that time (i.e. in 1994), the possibilities
of computers in Lithuania were especially limited (little memory,
slowness, limited network, etc.), thus, it was difficult to
provide the users with maps, graphics, pictures, etc. on the
Internet; the technical possibilities to prepare such drawings as
a digital version of the Scheme and to put in on the Internet
appeared approximately in 1996-1998 (explanations of the
specialists A. Paltarackas and P. Šulcas at the Constitutional
Court hearing): the technical possibilities to replicate such
documents in a digital format increased in 1996, when the state
land cadastre enterprise purchased a black-and-white scanner and
the sufficient technical possibilities appeared in 1998, when the
SE Distance Research and Geoinformatics Centre "GIS-Centras"
purchased the first colour scanner (the explanations of the
specialist A. Paltarackas at the Constitutional Court hearing).
3. In this constitutional justice case it was also
established that:
- Upon preparing the Scheme, the Institute of Architecture
and Construction of the Kaunas University of Technology
transferred two original copies thereof (textual and graphic
parts) to the then Ministry of Construction and Urban Planning,
and one original copy was left at the said institute (the
testimonies of the witnesses E. Blaževičius and R. Baškytė at the
Constitutional Court hearing);
- On 12 July 1995, the then Ministry of Construction and
Urban Planning transferred one original copy of the Scheme to the
mayor of the town of Neringa (the transfer-reception act of the
Planning Scheme (General Plan) of Curonian Spit National Park and
the principled plans of settlements of the park of 12 July 1995);
- the other original copy of the Scheme which was
transferred to the then Ministry of Construction and Urban
Planning is kept at the State Protected Areas Service under the
Ministry of Environment (the testimony of the witness R. Baškytė
at the Constitutional Court hearing);
- the officially approved copy of the Scheme is also kept
at the Environmental Protection Agency (the testimony of the
witness Ž. Mačerinskas).
4. It has also been established that all the persons who
wanted to familiarize themselves with the Scheme could do that
there were not and there are not any obstacles to read it, make
copies, etc. (the testimonies of the witnesses E. Blaževičius, R.
Baškytė and Ž. Mačerinskas at the Constitutional Court hearing).
Quite a number of citizens (as well as advocates) have applied to
the State Protected Areas Service under the Ministry of
Environment regarding the Scheme, the copies were made to them
free of charge (the testimony of the witness R. Baškytė at the
Constitutional Court hearing).
5. In this constitutional justice case, it has also been
established that while issuing the conditions of the detailed
planning (in Curonian Spit National Park), one has always
referred and refers to the Scheme, and the "extracts" of the
Scheme are "simply inserted" in the detailed plans (the testimony
of the witness R. Baškytė at the Constitutional Court hearing).
There is no information that while issuing the conditions of the
detailed planning (in Curonian Spit National Park) there would
have been any legal disputes regarding the accessibility of the
Scheme to the subjects of law or the authenticity of its
contents; thus, even though the entire Scheme was not published
in the official gazette "Valstybės žinios" (only the main
statements thereof were published in the official gazette
"Valstybės žinios"), it was universally recognized that it was
effective.
6. Thus, it needs to be held that the statement (at the
Constitutional Court hearing) of the group of Members of the
Seimas, the petitioner, that, purportedly, the persons (inter
alia the advocates) who wanted to familiarize themselves with the
Scheme, came across "insurmountable obstacles", is groundless.
III
1. In this constitutional justice case, it is requested to
investigate whether not what is established by Government
Resolution No. 1269 of 19 December 1994, i.e. not the contents of
this Government resolution or of the Scheme approved thereby, but
whether the way this Government resolution (part thereof) was
published is not in conflict with the Constitution, namely with
Paragraph 2 of Article 7 thereof, which establishes that only
laws which are published shall be valid, as well as with the
constitutional principle of a state under the rule of law.
2. While construing Paragraph 2 of Article 7 of the
Constitution, the Constitutional Court held in its acts that:
laws are not valid and may not be applied unless they are
officially promulgated (Constitutional Court ruling of 11 January
2001); official publication of laws is a necessary condition of
their coming into force (Constitutional Court ruling of 19 June
2002); the law must establish the procedure of publication of the
laws and the source of information in which the laws must be
published (Constitutional Court ruling of 29 October 2003);
publication of the laws must allow the subjects of the law to be
certain that the published law is exactly the law which has been
adopted by the Seimas or which has been adopted in a referendum;
such publishing of laws is their official publication
(Constitutional Court ruling of 29 October 2003); the official
publication of laws in pursuance with the procedure established
in the Constitution and laws is a necessary condition so that
laws be valid and that subjects of legal relations should know as
to what laws are valid, what their content is, and that they
might follow these laws (Constitutional Court rulings of 11
January 2001 and 29 October 2003); there may not be not published
laws in a democratic state under the rule of law (Constitutional
Court rulings of 11 January 2001 and 29 October 2003); laws must
be published publicly (Constitutional Court ruling of 29 October
2003); law may not be non-public (Constitutional Court rulings of
29 November 2001, 30 May 2003 and 29 October 2003).
The Constitutional Court has also held that taking account
of the constitutional requirement that law may not be non-public,
the notion "laws" which is employed in Paragraph 2 of Article 7
of the Constitution should not be construed only literallyit
should be construed in an expanding manner, as a notion that
includes not only legal acts, which have the power of the law,
but also other legal acts (Constitutional Court ruling of 29
October 2003). It was also held that the constitutional
requirement that only laws which are published can be valid is
one of essential elements of the constitutional principle of a
state under the rule of law and is an important precondition of
legal certainty (Constitutional Court rulings of 29 November
2001, 30 May 2003 and 29 October 2003).
3. The text of a legal act may include various elementsnot
only the normative provisions (norms, principles) which enshrine
the rules of conduct and the limits of freedom of conduct of the
subjects of law but also the descriptive statements or graphic
images (pictures or other visual information) that record the
existing situation and state certain legally significant facts.
4. Under Article 95 of the Constitution, the Government of
the Republic of Lithuania shall resolve the affairs of state
governance at its sittings by adopting resolutions by majority
vote of all the members of the Government (Paragraph 1); the
Government resolutions shall be signed by the Prime Minister and
the Minister of a corresponding branch (Paragraph 2).
In this context, it needs to be noted that the Constitution
does not expressis verbis establish the time period within which
the adopted Government resolution must be signed and officially
published. The time period in which the resolution adopted by the
Government must be signed and officially published must be
established by the law.
5. When construing Article 95 of the Constitution (also in
the context of other provisions of the Constitution), the
Constitutional Court held that under the Constitution, the
Government, while resolving affairs of state administration, must
always adopt resolutions, and they must be published regardless
of whether the legal acts adopted by the Government are normative
or individual, as well as regardless of the fact as to what
subjects or circles of subjects they are meant (Constitutional
Court rulings of 29 November 2001 and 30 May 2003). The procedure
of publication of Government resolutions and their coming into
force is established by the law (Constitutional Court ruling of
29 November 2001).
In this context, it needs to be emphasized that the
provisions of the official constitutional doctrine that the
Government, while resolving the affairs of state governance, must
always adopt resolutions and that they have to be officially
published irrespective of the fact whether the legal acts adopted
by the Government are normative or individual, as well as
irrespective of the fact for what subject or circle of subjects
they are designed, were formulated in the Constitutional Court
jurisprudence, inter alia the constitutional justice cases in
which it was investigated whether the legal acts (paragraphs
thereof) which had been issued yet before 14 August 2004, when
the Republic of Lithuania Constitutional Act "On the Membership
of the Republic of Lithuania in the European Union" which was
adopted on 13 July 2004 came into force, whereby the membership
of the Republic of Lithuania in the European Union was approved
in a constitutional manner (Constitutional Court rulings of 13
December 2004 and 14 March 2006) and which, according to Article
150 of the Constitution, is a constituent part of the
Constitution, were not in conflict with the Constitution.
Upon coming into force of the Constitutional Act "On the
Membership of the Republic of Lithuania in the European Union",
the formerly formulated official constitutional doctrine of the
Government acts is developed in the Constitutional Court
jurisprudence while taking account of the fact that Paragraph 4
of this Constitutional Act established that the Government shall
consider the proposals to adopt the acts of European Union law
following the procedure established by legal acts. As regards
these proposals, the Government may adopt decisions or
resolutions for the adoption of which the provisions of Article
95 of the Constitution are not applicable.
Thus, the provisions of the official constitutional
doctrine that the Government, while resolving the affairs of
state governance, must always adopt resolutions and that they
have to be officially published irrespective of the fact whether
the legal acts adopted by the Government are normative or
individual, as well as irrespective of the fact for what subject
or circle of subjects they are designed are not applicable to the
Government resolutions and the decisions which are adopted
pursuant to Paragraph 4 of the Constitutional Act "On the
Membership of the Republic of Lithuania in the European Union".
In the context of the constitutional justice case at issue,
it needs to be noted that this reservation may not be applied to
the disputed Government resolution.
6. Government resolutions, as well as other legal acts, may
differ according to the form, contents, structure, size, may have
various constituent parts (annexes). The legal act may include
not only the textual, but also the graphic parts (tables,
drawings, schemes, plans, cartograms, symbols, emblems, etc.). As
the Constitutional Court held in its ruling of 29 October 2003,
all parts of a normative legal act (as well as annexes)
constitute a whole, they are inseparably connected and have equal
legal power; the annexes may not be separated from a legal act
because, upon changing the legal regulation established therein,
the entire content of the legal regulation established in the
legal act is changed; the whole legal act with all its
constituent parts must be published; only those legal acts, which
have been published according to the requirements of official
publication and publicity which are consolidated in the
Constitution, as well as the constitutional requirement that the
whole legal act (all its constituent parts) should be published
may be recognized as corresponding with the requirements of
Paragraph 2 of Article 7 of the Constitution, therefore being
valid.
7. The official public publishing of the whole legal act is
not an end in itselfit is necessary so that the subjects of law
would know what the corresponding legal act is, would be able to
familiarize themselves with the whole legal act and to follow it.
Thus, the purpose and essence of the official public publishing
of an entire legal act is that it becomes accessible to the
subjects of law and no doubts remain regarding the authenticity
of its contents. The legislator must establish by the law such
legal regulation related to the official publishing of the legal
acts that the legal acts would be accessible for all subjects of
law. While doing so, the legislator has broad discretion: upon
taking account of the contents, peculiarities and variety of the
legal acts, as well as other circumstances, he may establish
various sources and ways of official publishing of the legal
acts. In this context, it needs to be noted that as the
Constitutional Court held in its ruling of 29 October 2003, the
Constitution does not establish expressis verbis sources of the
official publication of legal acts or all possible ways of their
publication; the legislator must establish it by the law; while
regulating these relations, the legislator, taking account of the
variety of legal acts and their contents, may establish a
differentiated legal regulation; while establishing it, the
legislator must heed the Constitution in all cases.
7.1. In the context of the constitutional justice case at
issue, it needs to be noted that while establishing the sources
and ways of the official publishing of legal acts, the legislator
has to take account of the technical possibilities to publish the
legal acts in a certain way. In this context, it also needs to be
noted that, as it was held by the Constitutional Court, fast
technological development determines the dynamism of the legal
acts regulating corresponding social relations (Constitutional
Court ruling of 21 December 2006), as well as that "electronic
communications and telecommunications are undergoing fast
development", thus, "the opportunities to seek, obtain and
disseminate information by making use of electronic information
technologies, inter alia the Internet, are constantly expanding",
"therefore, it is necessary that legislation not get behind with
the progress of information technologies and with changes in
respective social relations which are determined by such
progress" (Constitutional Court rulings of 19 September 2005 and
21 December 2006). These provisions are mutatis mutandis
applicable also to the publishing of legal acts.
Certainly, whatever advanced technologies are applied while
officially publishing legal acts, in all cases not only the
authenticity of the contents of these legal acts must be ensured
(thus, also guaranteed that the contents of the legal act will
not be deleted, changed, etc.) but also its accessibility to the
subjects of law. For instance, in itself the mere fact that legal
acts are published on the internet may not guarantee their
accessibility, thus, also the publicity of law, if the technical
possibilities to use the internet for the widest possible strata
of society are not ensured or if it costs too much for the
people.
7.2. In the context of the constitutional justice case at
issue, it is also to be noted that while establishing the sources
and ways of the official publishing of the legal acts, the
legislator may take account of the expenses of the publishing of
legal acts and the financial capabilities of the state. Here
rationality arguments must be heeded.
On the other hand, legal acts do not have to be officially
published so that while saving the funds of the tax payers which
would be necessary in order to publicly and officially publish
them as broadly as possible, the accessibility of any legal acts
to the subjects of law would be restricted, moreover, that the
access of some legal acts would in general be difficult for them.
8. The discussed as well as other circumstances which
determine the necessity to establish a differentiated legal
regulation of the official publishing of the legal acts may imply
that there is no necessary need to officially publish an entire
(with all the constituent parts thereof) legal act in the same
source (publication), even though it must be published in its
entirety (all its constituent parts). However, it is to be
emphasized that it does not mean that any part of the said legal
act may remain not published (non-public) at all, as well as that
any part (parts) thereof may be published in a way that its
(thus, also that of the all legal act as a whole) accessibility
to subjects of law would be restricted. The possibility to
officially publish the constituent parts of the legal act not in
the same source must be grounded by the legal regulation
established by the law. It also needs to be noted that in order
to ensure the clarity and comprehensibility of law, thus, also
the clarity and comprehensibility of the system of the legal
acts, one has to be able to ground constitutionally every case
when the constituent parts of the legal act are officially
published not in the same source.
Thus, in the cases when legal acts include not only the
textual (written), but also the graphic (drawings, etc.) parts,
especially if these legal acts are of large size and complex
structure and there appear big technical problems regarding the
publication of their graphic part (printing, replicating) (as
well as if the expenses of its publication (printing,
replicating) are groundlessly big (taking account of the
financial capabilities of the state, as well as of the fact to
what circle of subjects of law the legal regulation establishes
the rights and duties), one may establish by the law such
procedure of official publishing of these legal acts which
differs from the general (usual) official procedure of publishing
of the legal acts which are composed only of the written text. In
itself, the Constitution does not prohibit it. For instance, the
law may establish that the graphic part (or certain parts
thereof) of such legal acts shall be officially published
separately from the textual part (in a different source), as well
as that the graphic part (or certain parts thereof) shall be
officially published in a different way than the textual part.
The specified reasons (especially large size of the legal act,
complex structure, technical problems which arise due to the
publication of the graphic part) are to be considered as
sufficiently solid, thus, also constitutionally grounding (as the
Constitution does not require unreasonable things) a separate
official publishing of the textual and graphic parts of the legal
act, and/or their official publishing in different ways.
9. It needs to be especially emphasized that while
officially publishing the graphic part of a legal act
(irrespective of the fact whether it is published in the same
source as the textual part, or in a different one), it is very
important to ensure that it would be clear and legible. It is
obvious that minimum polygraphic requirements for the official
publishing of the textual part of the legal act are often less
strict than the corresponding requirements for the official
publishing of its graphic part (drawings, etc.) (if one wants
that this graphic part would be clear and legible). It goes
without saying that the quality of the official gazette
(publication) in which legal acts are officially published under
the general procedure is usually (not only in Lithuania) oriented
to the minimum polygraphic requirements for the publishing of the
textual part of the legal act (thus, to the smaller publication
expenses, which, taking account of inter alia the extent of
publication, is naturally understandable), and not to the far
bigger requirements set for the publication of its graphic part
(drawings, etc.), especially, when the biggest part of the legal
acts is comprised only of the written text.
It has been held in this Constitutional Court ruling that
the official public publishing of an entire legal act is not an
end in itself. Only the official publication of the graphic part
of the legal act in the official gazette, when due to not very
high printing quality of the drawings, tables, graphs, schemes,
maps or other parts are not possible to read and thus, the
possibility for the subjects of law to understand (to find out)
its contents in an adequate way is not ensured, may not be
considered as constitutionally grounded, such printing would not
comply with the constitutional concept of the official public
publishing of legal acts and with the requirements of clarity and
comprehensibility of law which stem from the constitutional
principle of a state under the rule of law.
10. In this context, it needs to be noted that the notion
"published" of Paragraph 2 of Article 7 of the Constitution may
not be construed as meaning that official public publishing of
legal acts is only printing of the text of these legal acts in a
traditional "paper" publication (official gazette, etc.) or that
in general their official public publishing is necessarily
related only to their printing in any publication. The legislator
may establish (but, under the Constitution, it is not obligatory
to him to do so) that legal acts, also including those which have
graphic parts, shall be officially published in a certain printed
publication. If it is constitutionally grounded, such legal acts
(their graphic parts) may be publicly and officially published in
other ways as well.
It is also to be emphasized that the necessity to ensure
the clarity and comprehensibility of law, thus, also the clarity
and comprehensibility of the system of legal acts also implies
that the discussed official publishing of the graphic part of
certain legal acts separately from the textual part (in different
source) and/or in other way than the textual part is to be
considered not as a rule, but as an exception. Such exceptions
must be expressis verbis provided for in the law. Otherwise,
preconditions would be created for appearance of disharmony in
the legal system, it would be difficult for the subjects of law
to find out the requirements of law.
11. It is also to be emphasized that also in the cases when
the graphic part of the legal act is published separately from
the textual part (in a different source) and/or in a different
way than the textual part, one must follow the requirements of
formality and publicity of publishing of legal acts which stem
from the Constitution, as well as one must ensure that due to the
separate publication of the textual and graphic parts of legal
acts, there would appear no preconditions to question the
authenticity of their contents.
First of all, it is necessary that by following the general
(usual) procedure of official publishing of legal acts in a
corresponding source one would announce that a corresponding
legislative decision has been adopted regarding a certain
question. Second, it should be clear from the legal acts
published in this source that a certain constituent part
(constituent parts) of this legal act has (have) not been
published therein. Third, it must be clear where one can
familiarize himself with the constituent part (constituent parts)
of the legal act which was (were) not published in the said
source. Finally, fourth, one must ensure in practice the
accessibility of the corresponding part of the legal act (thus,
also all the legal act as a whole) to the subjects of law,
moreover, no grounded doubts regarding the authenticity of the
contents of the constituent part (constituent parts) of the legal
act which was (were) not published in the said source should
arise for those subjects of law. If these conditions are
followed, and, certainly, if the non-publishing of a certain
constituent part (constituent parts)of the legal act may be
constitutionally grounded, in itself there are no grounds to
state that a certain legal act is "non-published" or that it is
"published", but it was done neither publicly, nor officially,
i.e. by failing to meet the requirements of Paragraph 2 of
Article 7 of the Constitution and by failing to heed the
constitutional principle of a state under the rule of law. Such
ensuring (in the specified cases) of the possibilities to
familiarize oneself with the contents of the constituent part
(constituent parts) of the legal act which was (were) not
published in the said source, thus, also of all the legal act as
a whole, if there are enough solid reasons for that, in itself
does not give grounds to question the compliance of the
corresponding legal act with the Constitution.
12. The provision that due to certain (solid enough)
reasons the textual and graphic parts of a legal act may be
officially published separately and/or in different ways is
mutatis mutandis applicable also to the situations when two or
more textual parts of the legal act are officially published in
different ways.
13. Under the Constitution, subjects of legal relations are
obliged to behave in good faith and without violating law. They
have a duty to try to find out by themselves the requirements of
law. It is required by the general principle of law bona fides,
which is inseparable from the constitutional principle of a state
under the rule of law.
Thus, if non-publishing of a certain constituent part
(constituent parts) of a legal act in the aforesaid source may be
constitutionally grounded, and if one follows the discussed
conditions (i.e. it is published in the official (usual) source
of publishing of legal acts that a corresponding legislative
decision has been adopted regarding a certain question; it is
clear from the legal acts published in this source that a certain
constituent part (constituent parts) of the legal act is (are)
not published in this source; it is clear where one may
familiarize himself with the constituent part (constituent parts)
of the legal act which is (are) not published in the said source;
the accessibility of the corresponding legal regulation for the
subjects of law is ensured in a practical way and no reasonable
doubts can arise to them regarding the authenticity of the
contents of the constituent part (constituent parts) of the legal
act which was (were) not published in the said source), no
subject of law can decide not to follow the requirements of law
only because of the fact that these requirements arise from such
part of the legal act which was published separately from others.
14. An especially big size of the legal act, its complex
structure, the technical problems which appear due to the
publication of the graphic partthese are not the only reasons
which may be considered as solid enough, thus, also
constitutionally grounding the separate official publishing of
the textual and graphic parts of the legal act and/or their
publishing in different ways. In general, the legislator may
regulate the official publishing of the legal acts in a
differentiated manner also on other grounds and to establish
alternative (in comparison with the general procedure of the
official publishing of the legal acts) sources, ways and
procedure of the official publishing of legal acts.
For instance, also such situations are possible when a
certain legal act must come into force immediately, right after
being issued. In such cases, one must ensure the necessary
expeditious and as fast as possible official publishing of legal
acts.
One may adopt also such legal acts which include the
information which composes the state secret or other classified
information. The Constitutional Court held that, under the
Constitution, the state has a duty to guarantee the secrecy of
the information which constitutes a state secret, disclosure of a
state secret may raise a threat or even inflict damage upon the
sovereignty of the state, its territorial integrity and upon
other especially important state interests and the bases of the
life of society and the state; when the relations linked with
state secrets (or other classified information) and their
protection are regulated by means of laws, one must establish
what persons, under what procedure and conditions, can dispose of
state secrets (or other classified information) (Constitutional
Court ruling of 15 May 2007). The legislator has the duty to
establish such ways and procedure of the official publishing of
the legal act which include the information which composes the
state secret or other classified information so that the
protection of secrecy of such information would be guaranteed, at
the same time without denying the imperatives of the publishing
of the legal acts which arise from the Constitution, inter alia
by ensuring the accessibility of the legal acts to the
corresponding subjects of law, the rights and duties of which are
enshrined in those legal acts. On the other hand, as the
Constitutional Court has held, the legal normative acts
regulating the relations linked with the constitutional human
rights and freedoms as well as their implementation should not in
general contain any classification markings (Constitutional Court
ruling of 5 April 2000).
15. Thus, also such legal situations are possible, when
upon establishing the only source for the official publishing of
legal acts and the only way of the official publishing of legal
acts, such legal regulation would be not only unreasonable, but
also legally deficient, constitutionally groundless, as it would
not enable the law enshrined in the corresponding legal acts to
reach its goals because it would be impossible to implement
certain legislative decisions in an expeditious way and as fast
as possible, the protection of the secrecy of corresponding
information would not be guaranteed, the provisions of the legal
act (for example, the graphic parts) would be understood
inadequately due to not very high quality of printing, etc. Thus,
one would deviate from the constitutional concept of the official
public publishing of legal acts (moreover, the expenses of the
publishing could be groundlessly big).
Thus, the ConstitutionParagraph 2 of Article 7 thereof
together with the constitutional principle of a state under the
rule of lawnot only allows, but also requires that not only the
general procedure of the official publishing of legal acts be
established, but also such differentiated legal regulation that
in the cases when due to an especially big size of a legal act,
its complex structure, technical problems which arise due to the
publication of the graphic part or other reasons solid enough,
which constitutionally ground the separate publishing of the
textual and graphic parts of the legal act and/or their
publishing in different ways, certain legal acts (parts thereof)
would be published while following an alternative (in comparison
with the general procedure of the official publishing of the
legal acts) procedure of the official publishing of legal acts,
in other sources and/or in other ways. It was mentioned that the
official publishing of certain graphic parts of legal acts
separately from the textual part (in a different source) and/or
in a different way than the textual part is to be considered not
as a rule, but as an exception; such exceptions must be expressis
verbis provided for in the law
All that is mutatis mutandis applicable also for the
situations when two or more textual parts of the legal act must
be published separately and/or in different ways.
IV
1. It was mentioned that in this constitutional justice
case one disputes the compliance of the Government resolution
which approved the Planning Scheme (General Plan) of Curonian
Spit National Park with the Constitution and 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 with subsequent
amendments and supplements), which, from 1 January 2003, has been
referred to as the Law on the Procedure of Publication and Coming
into Force of Laws and Other Legal Acts. In addition, not the
fact what this Government resolution establishes, i.e. not the
contents of this Government resolution and the Scheme approved
thereby is disputed, but the fact how this Government resolution
(paragraph thereof) was published, namely that the Scheme
approved thereby was not, according to the petitioners, published
in the official gazette "Valstybės žinios".
2. At the moment when the disputed Government resolution
was adopted, the Law "On the Procedure of Publication and Coming
into Force of Laws and Other Legal Acts of the Republic of
Lithuania" adopted by the Seimas on 6 April 1993 was effective.
This law was designed to regulate the relations linked to the
publishing and coming into force of the laws and other legal
acts. It inter alia defined what the official publishing of the
legal acts is, which legal act is official, it established what
legal acts must be published in the official gazette "Valstybės
žinios" and what legal acts may be not published in the official
gazette "Valstybės žinios", it defined the time of coming into
force of the legal acts, established in what cases and what legal
acts may be published not in the official gazette "Valstybės
žinios", but in other publications, as well as regulated the
relations linked to the structure of the publication "Valstybės
žinios" and its publishing.
It needs to be noted 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) inter alia
established: publishing of laws and other legal acts in the
official gazette "Valstybės žinios" shall constitute their
official publishing; the date of their publishing in the official
gazette "Valstybės žinios", which is indicated on the first page
of every publication, shall be the day of their release
(Paragraph 1 of Article 1); Government resolutions must be
published in the official gazette "Valstybės žinios" (Item 4 of
Paragraph 1 of Article 2); Government resolutions, in which legal
normative acts are not established, amended or acknowledged as no
longer valid, in the estimation of the persons who have signed
them, may remain unpublished in the official gazette "Valstybės
žinios"; however, regardless of whether or not these acts are
published in the official gazette "Valstybės žinios", they must
be sent out to the state institutions, enterprises, and
organizations, legal and natural persons mentioned in them
(Article 3); in case of urgency, the Republic of Lithuania laws,
other legal acts adopted by the Seimas, as well as the President
of the Republic decrees may be officially published in a special
publication of the Seimas or in the newspapers of the republic
through the Lithuanian Press Agency (ELTA) (Paragraph 1 of
Article 7); in such case, the laws and other acts adopted by the
Seimas shall come into force afterwards or the day after their
publishing, however, in the short time these legal acts shall
also be published in the official gazette "Valstybės žinios"
(Paragraph 2 of Article 7); the Government resolutions, by which
legal norms are established, amended or recognized as no longer
valid shall come into force the day after, when signed by the
Prime Minister and the corresponding minister, they are published
in the official gazette "Valstybės žinios" (Paragraph 1 of
Article 8); the Government regulations, by which legal norms are
not established, amended or recognized as no longer valid, as
well as the decrees of the Prime Minister, shall come into force
on the day of their signing provided a later date of their coming
into force has not been established in the resolutions or decrees
themselves (Paragraph 2 of Article 8).
Thus, at the time of adoption of the disputed Government
resolution, 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) provided for the only
official, under this law, source of publication of Government
resolutions to be publishedthe official gazette "Valstybės
žinios".
3. 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) has been amended and/or supplemented
more than once.
3.1. On 4 July 1996, the Seimas adopted the Republic of
Lithuania Law on Supplementing Article 3 of the Law "On the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts of the Republic of Lithuania", which came into force
on 17 July 1996. Its Article 1 supplemented Article 3 (wording of
6 April 1993) of the Law "On the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts of the Republic of
Lithuania" with Paragraph 2, wherein it was established that
"legal acts, which contain some information containing state or
official secrets, shall not be published in the official gazette
'Valstybės žinios'" and that "these acts must be sent to those
institutions, which, according to the procedure established by
laws, may dispose of the information involving state or official
secrets".
3.2. On 18 May 1999, the Seimas adopted the Republic of
Lithuania Law on Amending Articles 2, 3, 8, 9, 10, 15, 16 and 17
of the Law "On the Procedure of Publication and Coming into Force
of Laws and Other Legal Acts of the Republic of Lithuania",
Supplementing it with Article 10¹ and Recognizing Article 7 as no
Longer Valid, which came into force on 2 June 1999. The law
amended, supplemented and set forth Article 3 (wording of 4 July
1996) of the Law "On the Procedure of Publication and Coming into
Force of Laws and Other Legal Acts of the Republic of Lithuania"
in a new wording, as well as amended and set forth Article 8
(wording of 6 April 1993) of this law in a new wording.
Article 3 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 18 May 1999) established: legal acts
adopted by the Seimas of the Republic of Lithuania, except for
the laws, decrees of the President of the Republic, Republic of
Lithuania Government resolutions and resolutions of the Board of
the Bank of Lithuania, in which legal norms are not established,
amended or acknowledged as no longer valid, Constitutional Court
decisions of no general significance in the estimation of the
persons who have signed them, may remain unpublished in the
official gazette "Valstybės žinios"; regardless of whether or not
these acts are published in the official gazette "Valstybės
žinios", they must be sent out to the state institutions,
enterprises, and organizations, legal and natural persons
mentioned in them (Paragraph 1); the orders of ministers, heads
of Government establishments and other state governing
institutions and other legal acts confirmed by orders, which do
not establish, amend or acknowledge legal norms as no longer
valid, in the estimation of the persons who signed them, may be
published in the official gazette "Valstybės žinios" annex, the
"Information Bulletin" (Paragraph 2); legal acts, which contain
some information containing state or official secrets, shall not
be published in the official gazette "Valstybės žinios"; however,
these acts must be sent to those institutions, which, according
to the procedure established by laws, may dispose of the
information involving state or official secrets (Paragraph 3).
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 18 May 1999) established: the Government
resolutions, by which legal norms are established, amended or
recognized as no longer valid shall come into force the day
after, when signed by the Prime Minister and the corresponding
minister, they are published in the official gazette "Valstybės
žinios" provided a later date of their coming into force has not
been established in the resolutions or decrees themselves
(Paragraph 1); the Government resolutions, by which legal norms
are not established, amended or recognized as no longer valid, as
well as the decrees of the Prime Minister shall come into force
on the day of their signing, even if they were published in the
official gazette "Valstybės žinios" provided a later date of
their coming into force has not been established in the
resolutions or decrees themselves (Paragraph 2).
It also needs to be mentioned that Article 7 of the Law on
Amending Articles 2, 3, 8, 9, 10, 15, 16 and 17 of the Law "On
the Procedure of Publication and Coming into Force of Laws and
Other Legal Acts of the Republic of Lithuania", Supplementing it
with Article 10¹ and Recognizing Article 7 as no Longer Valid
supplemented the Law "On the Procedure of Publication and Coming
into Force of Laws and Other Legal Acts of the Republic of
Lithuania" with Article 10¹ which established the following: the
legal acts indicated in Article 2 of this law must appear in the
Internet websites of the Seimas as well as of the institution
which has adopted them, within three days of their formal
publication in the official gazette "Valstybės žinios" (Paragraph
1); the legal acts included in Paragraph 1 of Article 3 of this
law, must be published in the Internet websites of the
institution which has adopted them, within 3 days of the coming
into force thereof (Paragraph 2); the legal acts which contain
information comprising state or official secrets, shall not be
published in the Internet (Paragraph 3).
3.3. In the context of the constitutional justice case at
issue, it needs to be noted that, on 29 November 2001, the
Constitutional Court in the constitutional justice case
subsequent to the petition of a group of Members of the Seimas,
the petitioner, requesting to investigate whether the Government
Decision "On the request of the company 'Danisco Sugar' A/S to
acquire certain shares of sugar sector enterprises" entered into
the minutes of the sitting of 22 July 1998 of the Government of
the Republic of Lithuania is not in conflict with Paragraphs 1,
4 and 5 of Article 46 and Paragraph 1 of Article 95 of the
Constitution, Articles 6 and 11 of the Republic of Lithuania Law
on Competition (enacted on 15 September 1992), Article 2 of the
Law on the Government of the Republic of Lithuania, and Articles
2 and 8 of the Law "On Procedure of Publication and Coming Into
Force of Republic of Lithuania Laws and Other Legal Acts",
adopted the Ruling "On the compliance of the Government of the
Republic of Lithuania Decision 'On the request of the company
"Danisco Sugar" A/S to acquire certain shares of sugar sector
enterprises' entered into the minutes of the sitting of 22 July
1998 of the Government of the Republic of Lithuania with the
Constitution of the Republic of Lithuania and on the compliance
of the provisions of Articles 3 and 8 of the Republic of
Lithuania Law 'On Procedure of Publication and Coming Into Force
of Republic of Lithuania Laws and Other Legal Acts' with the
Constitution of the Republic of Lithuania", in which it inter
alia recognized that the provision of Article 3 of the Law "On
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts" (wordings of 4 July 1996 and
18 May 1999) whereby the resolutions of the Government in which
legal norms are not established, amended or acknowledged as no
longer valid may, in the estimation of the persons who have
signed them, remain unpublished officially, as well as the
provision of Paragraph 2 of Article 8 of the Law "On Procedure of
Publication and Coming Into Force of Republic of Lithuania Laws
and Other Legal Acts" (wordings of 6 April 1993 and 18 May 1999)
whereby the resolutions of the Government by which legal norms
are not established, amended or acknowledged as no longer valid
may come into force without their official publication, were in
conflict with the constitutional principle of a state under the
rule of law.
3.4. On 10 December 2002, the Seimas adopted 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", Article 1 whereof amended 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) and set it
forth in a new wording. The title of the said law was also
amendedit was given the title the Republic of Lithuania Law on
the Procedure of Publication and Coming into Force of Laws and
Other Legal Acts. The Law on the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts of the new wording
came into force on 1 January 2003.
The Law on the Procedure of Publication and Coming into
Force of Laws and Other Legal Acts (wording of 10 December 2002)
was designed to regulate the relations linked to the official
publishing of the Republic of Lithuania laws, other legal acts
adopted by the Seimas, President of the Republic decrees,
Government resolutions, Constitutional Court decisions and
rulings and other legal acts adopted by the institutions of state
power and governance and to the procedure of their coming into
force (Paragraph 1 of Article 1). This law also established the
structure of the official gazette "Valstybės žinios", the kinds
of legal acts to be published in the chapters of this gazette and
the procedure for submission of the signed laws and other legal
acts at the office of the official gazette "Valstybės žinios".
The Law on the Procedure of Publication and Coming into
Force of Laws and Other Legal Acts (wording of 10 December 2002)
inter alia establishes (established) the following: publication
of the laws and other legal acts in the publication "Valstybės
žinios" shall constitute their official publishing and the day of
their publication in the official gazette "Valstybės žinios"
shall be the day of their release; it is indicated on the first
page of every publication (Paragraph 1 of Article 2); the
official text of a law or another legal act shall be that which
before its publishing is signed by the official who has this
right in accordance with the laws (Paragraph 2 of Article 2);
according to this law, Government resolutions must be published
in the official gazette "Valstybės žinios" (Item 4 of Paragraph 1
of Article 3); the Republic of Lithuania laws, other legal acts
adopted by the Seimas, decrees of the President of the Republic,
Republic of Lithuania Government resolutions and the
Constitutional Court decisions, regardless of the fact that these
acts are published in the official gazette "Valstybės žinios",
must be sent out to the state institutions, enterprises, and
organizations, legal and natural persons mentioned in them
(Paragraph 1 of Article 4); Government resolutions shall come
into force the day after, when signed by the Prime Minister and
the corresponding minister, they are published in the official
gazette "Valstybės žinios" provided a later date of their coming
into force has not been established in the resolutions themselves
(Paragraph 1 of Article 9); the legal acts specified in Article 3
of this law must appear in the Internet websites of Seimas as
well as of the institution which has adopted them, within three
days of their formal publication in the official gazette
"Valstybės žinios" (Paragraph 1 of Article 13); legal acts
included in Paragraph 1 of Article 4 of this law, must be
published in the Internet websites of the institution which has
adopted them, within 3 days of the coming into force thereof
(Paragraph 2 of Article 13).
Thus, the provision that the only source for official
publishing of Government resolutions (all parts thereof) is the
official gazette "Valstybės žinios" was not abandoned.
3.5. The Law on the Procedure of Publication and Coming
into Force of Laws and Other Legal Acts (wording of 10 December
2002) was amended and supplemented by the Republic of Lithuania
Law on Amending and Supplementing Articles 1, 3, 4, 8, 10, 17,
18, 19 and 23 of the Law on the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts, which came into
force on 19 November 2003, adopted by the Seimas on 28 October
2003, however, the provision that the publishing of the laws and
other legal acts in the gazette "Valstybės žinios" shall
constitute their official publishing was not amended.
3.6. On 7 July 2005, the Seimas adopted 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 came into
force on 21 July 2005. Article 2 thereof 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 was established that the gazette "Valstybės žinios"
shall constitute the official publishing of laws and other legal
acts and the day of their publishing in the official gazette
"Valstybės žinios" shall be the day of their release, which is
indicated on the first page of every publication; in the cases
established by this law, the official publishing of other legal
acts shall be their publishing in the mass media or in the
Internet website of a corresponding institution, as well as their
sending to the institutions which, according to the procedure
established by laws, may dispose of the information involving
state or official secrets (Paragraph 1 (wording of 7 July 2005)
of Article 2). It was also established that Government
resolutions shall come into force the day after, when signed by
the Prime Minister and the corresponding minister, they are
published in the official gazette "Valstybės žinios" provided a
later date of their coming into force has not been established in
the resolutions themselves, and when the decisions provided for
in the legal acts of the Republic of Lithuania need to be adopted
immediately, Government resolutions shall come into force after
being published in the mass media; these resolutions must also be
published in the official gazette "Valstybės žinios" (Paragraph 1
of Article 9 (wording of 7 July 2005)). The following was also
established: Government decisions and Government resolutions
shall come into force on the day of their signing (Paragraph 2 of
Article 9 (wording of 7 July 2005)); the decrees of the Prime
Minister shall come into force on the day of their signing
provided a later date of their coming into force has not been
established in the decrees themselves, and the decrees of the
Prime Minister which are published in the official gazette
"Valstybės žinios" shall come the next day after their publishing
provided the later date of their coming into force has not been
established in the decrees themselves (Paragraph 3 of Article 9
(wording of 7 July 2005)); the legal acts specified in Article 3
of this law must be published in the Internet websites of Seimas
as well as of the institution which has adopted them, within
three days of their official publication in the official gazette
"Valstybės žinios" (Paragraph 1 of Article 13 (wording of 7 July
2005)); the legal acts specified in Paragraph 1 of Article 4 of
this law must be published in the Internet website of the
institution which has adopted them within three days of their
coming into force (Paragraph 2 of Article 13 (wording of 7 July
2005)); the legal acts specified in Paragraph 2 of Article 9 of
this law must in the Internet website of the Government
(www.lrv.lt) on the day of their signing (Paragraph 3 of Article
13 (wording of 7 July 2005)); the legal acts which include
information involving state or official secrets shall not be
published in the Internet websites (Paragraph 4 of Article 13
(wording of 7 July 2005)).
Thus, it was established that the official publishing of
the Government resolutions is not only their publishing in the
gazette "Valstybės žinios", but, in the cases established in the
Law on the Procedure of Publication and Coming into Force of Laws
and Other Legal Acts (wording of 10 December 2002 with the
amendments and supplements made in the 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), also their publishing in the mass media (after
they have been published in the official gazette "Valstybės
žinios").
3.7. On 16 January 2007, the Seimas adopted 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 came
into force on 30 January 2007. Paragraph 1 of Article 1 thereof
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, and Article 2
supplemented the said law with new Article 3¹.
Item 4 (wording of 16 January 2007) of Paragraph 1 of
Article 3 of the Law on the Procedure of Publication and Coming
into Force of Laws and Other Legal Acts established that, under
this law, the Government resolutions, save the cases provided for
in Article 3¹ of this law, must be published in the official
gazette "Valstybės žinios". 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).
4. It needs to be noted that certain relations linked to
the publishing of the Government resolutions are regulated by the
Work Regulations of the Government of the Republic of Lithuania,
which was approved by Item 1 (with subsequent amendments and
supplements) of Government Resolution No. 728 "On the Approval of
the Work Regulations of the Government of the Republic of
Lithuania" (which came into force on 18 August 1994) of 11 August
1994.
It needs to be noted that the Work Regulations of the
Government, which is a sub-statutory legal act, has to be
grounded on the law.
5. It is to be noted that the Scheme approved by the
disputed Government resolution is a territorial planning
document. Thus, while deciding whether the disputed Government
resolution is not in conflict with the Constitution and 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 with
subsequent amendments and supplements), which from 1 January 2003
has been referred to as the Law on the Procedure of Publication
and Coming into Force of Laws and Other Legal Acts, one must take
account not only of the fact how 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), which since 1 January
2003 has been referred to as the Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts,
regulated the relations linked to the official publishing and
coming into force of Government resolutions and the time when the
disputed Government resolution was adopted (and later), but also
of the fact how the preparation, registration, publishing and
coming into force of the territorial planning documents were
(are) regulated.
6. At the time when disputed Government Resolution No. 1269
"On the Planning Scheme (General Plan) of Curonian Spit National
Park" of 19 December 1994 was adopted, Government Resolution No.
161 "On the Territorial Planning of the Republic of Lithuania"
adopted on 12 March 1993, which came into force on 12 March 1993,
was effective. Article 2 thereof approved the Provisional
Regulations for the Territorial Planning of the Republic of
Lithuania. The provisional regulations defined territorial
planning, established the organizational principles of the
territorial planning, the objects, the subjects, the rights and
duties of the subjects, the competence of state institutions in
the area of territorial planning and the procedure of the
participation of the public in the process of territorial
planning.
Item 5 of the Provisional Regulations inter alia
established that "the territorial planning documents shall be the
following: 5.1. of state significance: <
>5.1.4. General plans of
the towns of Neringa, <
>; 5.2. of regional significance: <
> the
plans of the special purpose territories (land, forestry and
water economy, recreational, protected, etc.) and infrastructure
systems <
>".
Also the following was established: the Ministry of
Construction and Urban Planning shall establish the composition
and size of the general territorial planning documents, the
procedure of their preparation, co-ordination, amendment and
registration (Item 9.3), as well as collect and use the
information bank of the territorial planning documents and
administers their register (Item 9.6); the ordering customers of
the territorial planning documents (projects) must inform the
Ministry of Construction and Urban Planning about the terms of
preparation of a territorial planning document of state or
regional significance, while the same ordering customers must
inform the municipality about the terms of preparation of a
territorial planning document of the territory of the
municipality and of local significance, and register the approved
document (Item 19.1), to inform the society about the purposes of
the design works, their beginning and end, to establish the
deadlines for submitting claims (Item 19.2), to present the
society with the finished territorial planning document for
familiarization and to establish a time period for its
consideration, which would be not shorter than 2 months (Item
19.3); after the time for the consideration is over, the ordering
customer, within one month, shall analyze the remarks submitted
in writing, shall present the society with reasoned conclusions
and submit the document for approval (Item 19.3).
7. Minister of Construction and Urban Planning Decree No.
104 of 4 May 1994 approved the Provisional Rules for Discussion
of Draft Territorial Planning Documents with Society which came
into force on 19 May 1994. They established the "procedure for
discussion of the draft territorial planning documents prepared
for the territories of the municipality, part of municipality or
groups of municipality with society and the functions of the
territorial planning subjects" (Item 1). It was established that
"while discussing the draft territorial planning documents with
society, the citizens of the Republic of Lithuania living in that
territory, their associations, political and public organizations
may submit proposals, make remarks and claims" (Item 2) and that
"upon approval of the draft document under the established
procedure, within ten days the ordering customer shall inform the
society about the fact that the document was approved and comes
into force and specify where one can familiarize himself with it"
(Item 19).
8. It is clear from the discussed legal regulation that the
legal acts which were effective at the time when the disputed
Government resolution was adopted, and which regulated the
preparation of the territorial planning documents (which are not
a matter of investigation in this constitutional justice case),
consolidated the possibility for the natural and legal persons to
familiarize themselves with a territorial planning document,
which is undergoing preparation, before its approval; the society
had to be informed about the beginning and the end of the
drafting works, it had to be presented with the finished
territorial planning document for familiarization, one had to
establish the time period for consideration of such document
during which it was possible to make remarks; the territorial
planning document could be submitted for approval only upon
analyzing the said remarks and announcing reasoned conclusions to
the society; upon approving, under the established procedure, the
draft territorial planning document, the society had to be
informed about its approval and coming into force, as well as
about where it was possible to familiarize oneself with it.
9. Decree No. 32 "On the Data Banks of the Territorial
Planning" of the Minister of Construction and Urban Planning
dated 6 February 1995, which came into force on 16 February 1995,
approved the Provisional Regulations for the Register of the
Territorial Planning Documents until the Seimas adopts the
Republic of Lithuania Law on Territorial Planning (Item 2.3).
They were designed to regulate the relations linked to the
registration of the territorial planning documents which were
prepared and approbated under the established procedure,
determined the structure of the data about the territorial
planning documents, enshrined the principles of the data
collection, handling and updating, established the objects and
subjects of the register, the general rights and duties of the
subjects, and the requirements for the hardware and software for
collection and handling of the planning documents.
The said regulations inter alia established the following:
the objects of the register of the territorial planning documents
shall be the territorial planning documents of all levels which
were approved by the Government or the Ministry of Construction
and Urban Planning under the established procedure and were begun
to prepare, as well as the data about them, their ordering
customers and drafters (Item 3.1); the subjects of the register
of the territorial planning documents shall be the Seimas, the
Government, the Ministry of Construction and Urban Planning,
other ministries and state services, county administrations and
municipalities, ordering customers of the territorial planning
documents, design organizations and other natural and legal
persons of the Republic of Lithuania and foreign countries (Item
3.2.1); free and free of charge access to the data of the
register of the territorial planning documents shall be granted
to the state institutions of the highest hierarchical level
(subjects), as well as to the administrators of the registers of
the territorial planning documents of counties and
municipalities; they shall directly apply (submit applications)
to the responsible administrator of the register (Item 3.2.2);
other subjects (banks, design and other organizations concerned)
of the register of the territorial planning documents shall only
be provided with the information about the registered territorial
planning documents and who their general ordering customer is
(Item 3.2.3); the ordering customer, under whose order the
corresponding document was prepared shall provide the responsible
administrator of the register of the territorial planning
documents with the data about the approved territorial planning
documents of the corresponding level (Item 4.2); the ordering
customer, under whose order the preparation of the document was
begun, shall provide the responsible administrator of the
register of the territorial planning documents with the data
about the territorial planning documents of the corresponding
level the preparation of which was begun (Item 4.4); the natural
and legal persons who wish to familiarize themselves with the
data about the documents registered at the register of the
territorial planning documents shall apply to the responsible
administrators of the corresponding level, while the responsible
administrator of the register may collect a tax of the
established size for providing the information (Item 4.5).
The said regulations also established that the territorial
planning documents shall be collected and handled at the register
at three levels: state, county, municipalities (Item 6.1); in the
register, the territorial planning documents of state
significance are divided into three groups: the territory of the
whole country, national parks and towns of the republic (Item 6.
2); while registering the territorial planning documents in the
register of a corresponding level, the following data shall be
entered: registration number, title of the document, general
ordering customer of the document, other customers (if such
exist), general contractor of the document, other contractors (if
such exist), the one who approved the document (institution,
date, number of the document whereby the territorial planning
document was approved), repeated supplements, the place where the
original copy of the document is kept, the place where the
duplicates of the document are kept, the beginning of the
preparation of the document and the end of the preparation of the
document (Item 6.3).
10. On 12 December 1995, the Seimas adopted the Law on
Territorial Planning which came into force on 1 January 1996. On
the same day (12 December 1995), the Seimas adopted the Republic
of Lithuania Law "On Coming into Force of the Republic of
Lithuania Law on Territorial Planning" which came into force on
30 December 1995.
The Law on Territorial Planning was designed to regulate
the relations linked with the territorial planning of the
Republic of Lithuania, as well as interrelations of the natural
persons, legal persons and state institutions during this
process. It inter alia defined the purposes, levels, kinds of the
territorial planning, the objects, organizers, documents,
processes, preparation and validity of plans of the common,
special and detailed planning; it established the general
procedure of the co-ordination of the territorial planning
documents and of their submission for approval, defined their
registration, bank of the territorial planning data and
information sources, participation of the public in the process
of the territorial planning, public publishing of the territorial
planning documents, procedure of submission of the planning
tenders, publicity of the execution of the approved common plans,
as well as it regulated the state supervision of the territorial
planning and compensation for damage, and established liability
for violation of this law. Under Article 2 of the Law "On Coming
into Force of the Republic of Lithuania Law on Territorial
Planning", the Law on Territorial Planning (wording of 12
December 1995) had, "under the procedure established by the
Government", to be applied to all common and detailed plans and
special planning documents which were approved, begun and not
finished until the day of coming into force of the law.
The Law on Territorial Planning inter alia established: the
objects of special planning may be protected territories, their
systems, natural and immovable cultural values (Item 4 of
Paragraph 1 of Article 10); the documents of special planning may
be schemes of planning of national and regional parks (Item 5 of
Paragraph 1 of Article 12); solutions of the documents of special
planning must not contradict the valid general plans, they must
be co-ordinated and discussed publicly (Paragraph 2 of Article
14); prior to their presentation for approval, solutions of
common, special and detailed territorial planning documents must
be discussed in public (Item 2 of Paragraph 1 of Article 23).
Article 24 of this law regulated the registration of the
territorial planning documents; it established the following: the
register of territorial planning documents shall be set up for
the purpose of registration of territorial planning documents; it
is composed of the national, county and municipality registers of
the territorial planning documents (Paragraph 1); the management
of territorial planning registers shall be regulated by the
territorial planning register regulations approved by the
Government (Paragraph 2); all the approved territorial planning
documents shall be presented in the obligatory manner to the
register administrators for registration no later than within 15
days from their approval; the administrators of territorial
planning documents register shall within 15 days notify the
administrator of the land cadastre of the registered planning
document (Paragraph 3); the national territorial planning
documents register shall be managed by the Ministry of
Construction and Urban Planning, the county registerby the
county governor, the municipality registerby the chief architect
of the municipality (Paragraph 4); all natural and legal persons
of the Republic of Lithuania shall have the right of access to
the data of the register of the territorial planning documents at
the corresponding register management institution and, upon
paying a fixed stamp duty, receive copies thereof (Paragraph 5).
Article 25 of the Law on Territorial Planning, which regulated
the participation of the public in the process of the territorial
planning, inter alia established that general, detailed and
special territorial planning documents must be submitted for
public discussion (Paragraph 1), as well as that the general
procedure of the participation of the public in the process of
planning shall be regulated by the regulations for public
discussion of territorial planning document drafts, approved by
the Government (Paragraph 3). Article 26 of the discussed law,
which regulated public publishing of the territorial planning
documents, established: the purpose and terms of preparation of
general plans, also of national and county level territorial
planning documents shall be publicly published on the Lithuanian
radio and television, in the press, whereas those of detailed
plans and municipal level special territorial planning
documentsin the local mass media no later than within 10 days
from the passing of the decision to draft the plan; the
publishing shall specify the stages and procedure of public
discussion (Paragraph 1); all natural and legal persons of the
Republic of Lithuania shall have the right of access to the
territorial planning documents that are under preparation, also
those which have been approved, at the institution organizing the
planning and, upon paying a fixed stamp duty, receive copies of
extracts and drawings thereof, provided that the planning is
organized by a state or municipal institution; other organizers
of the planning shall provide copies for a charge fixed by mutual
agreement (Paragraph 2); the institution which organized the
planning shall acquaint the public with the prepared drafts of
territorial planning documents; they shall also be open for
public at open exhibitions (Paragraph 3); a period of at least
two months shall be assigned for the presentation to the public
of the drafted national, county and municipal general plans and
special planning documents with at least one month of the period
being allotted for public exposition (Paragraph 4); at least a
month's period shall be allotted for granting access to the
drafted detailed plan, with at least a week of the period being
assigned to public exposition (Paragraph 5); the organizers of
the planning must send a written notification of the drawn up
territorial planning document and its consideration procedure to
the land owners and other real estate owners, whose real estate
is reserved under the detailed plan or special planning documents
solutions for key national, county or municipal projects and for
the development of infrastructure, is set apart in order to be
taken for public needs or if it is intended to change its
condition, manner or purpose of use (Paragraph 6).
11. The Law on Territorial Planning (wording of 12 December
1995) has been amended and/or supplemented more than once,
however, the provisions specified therein, which are designed for
the relations linked to the public consideration of the special
planning documents, society's familiarization with the prepared
draft territorial planning documents, the right of natural and
legal persons to familiarize themselves with the territorial
planning documents which are being prepared and approved and to
their right to receive their extracts and copies of the drawings
have not been essentially amended or supplemented (even though
the textual expression of some of them was corrected).
12. It was mentioned that under Article 2 of the Law "On
Coming into Force of the Republic of Lithuania Law on Territorial
Planning", the Law on Territorial Planning (wording of 12
December 1995) had, "under the procedure established by the
Government", to be applied to all general and detailed plans and
special planning documents which were approved, begun and not
finished until the day of coming into force of the law.
On 24 May 1996, the Government adopted Resolution No. 617
"On Application of the Republic of Lithuania Law on Territorial
Planning to the Approved Territorial Planning Documents the
Preparation of Which was Begun and not Finished Before Coming
into Force of this Law", Article 5 whereof recognized the
Provisional Regulations which were approved by Government
Resolution No. 161 of 12 March 1993 as null and void. Government
Resolution No. 617 of 24 May 1996 came into force on 1 June 1996.
Item 1.1 of the said Government resolution established that
the general plans, detailed plans and projects and regeneration
projects and schemes of towns (or parts thereof), townlets and
villages (rural districts), projects and schemes of the
arrangement of networks and objects of the communication and
engineering infrastructure, projects and schemes of territorial
development, projects and schemes of lot marking and red lines,
planning schemes of state parks, land use planning and forestry
projects and other documents which provide for the conditions of
land use of the territories and development of the activity in
them, the rights and obligations of the land users, are
territorial planning documents, if they had been approved, under
the established procedure, before coming into force of the Law on
Territorial Planning; these documents must be registered at the
state register of the territorial planning documents until 30
March 1997, as it is established in the regulations of this
register.
Government Resolution No. 617 of 24 May 1996 has been
amended, but Item 1.1 thereof has not been amended.
13. By Item 1.1 of its Resolution No. 721 "On the Approval
of the Regulations for the Register of the Territorial Planning
Documents of the Republic of Lithuania and the Regulations for
the Data Bank of the Territorial Planning Documents of the
Republic of Lithuania" of 19 June 1996 (hereinafter also referred
to as Government Resolution No. 721 of 19 June 1996), the
Government approved the Regulations for the Territorial Planning
Documents of the Republic of Lithuania.
Under these regulations, the register of the territorial
planning documents was designed to register the territorial
planning documents which were approved under the procedure in
the Law on Territorial Planning, to enter their supplements and
amendments, as well as to register the territorial planning
documents the preparation of which was begun (as recommended)
(Item 5). The founder of the Register of the Territorial Planning
Documents shall be the Government (Item 3). The object of the
Register of the Territorial Planning Documents shall be the
approved common, special and detailed territorial planning
documents (Item 4). The central data base of the Register of the
Territorial Planning Documents and the database of the register
of the administrative levels shall be the databases of the
original (Item 8). The data of the Register of the Territorial
Planning Documents shall be inter alia the following: the data
about the approval of the document (title of the institution
which approved it, date, number of the document whereby the
territorial planning document was approved) (Item 14.5); the data
about the amendments and supplements of the document (title of
the institution, date, number of the document whereby these
supplements and amendments were approved) (Item 14.6); references
about the place where the original copy of the document is kept
(Item 15.5.1); and about the place where the duplicates of the
document are kept (15.5.2).
The said regulations also established that all legal and
natural persons of the Republic of Lithuania, upon paying a fixed
stamp duty (under the Republic of Lithuania Law on the Stamp Tax)
shall have the right to familiarize themselves with the data of
the register of the territorial planning documents at the
institution which administers the corresponding register and to
receive copies thereof (Item 42), as well as that the legal and
natural persons who wish to receive an extract (copy) from the
register of the territorial planning documents, shall submit
application to the administrator of the database of this
register, and the administrator must grant the application within
3 working days and to provide with the requested data (Item 45).
14. By Item 1.2 of Resolution No. 721 "On the Approval of
the Regulations for the Register of the Territorial Planning
Documents of the Republic of Lithuania and the Regulations for
the Data Bank of the Territorial Planning Documents of the
Republic of Lithuania" of 19 June 1996 the Regulations for the
Data Bank of the Territorial Planning Documents of the Republic
of Lithuania were approved.
The Regulations for the Data Bank of the Territorial
Planning Documents inter alia established that the data bank of
the territorial planning documents is designed to enter and keep
the solutions of the documents which are registered at the
register of the territorial planning documents, as well as to
keep graphic and textual data which are necessary while preparing
the territorial planning documents (Item 1). It was established
that the data of the data bank of territorial planning shall be
provided free of charge to the state institutions according to
the list approved by the Government (Item 24); other legal and
natural personsplanning organizersshall be provided with the
data of the data bank of territorial planning upon paying a fixed
stamp duty (under the Law on the Stamp Duty) (Item 25).
15. Government Resolution No. 721 of 19 June 1996 (and the
Regulations for the Register of the Territorial Planning
Documents and the Regulations for the Data Bank of the
Territorial Planning Documents approved thereby) have been
amended more than once, however, the provisions specified therein
have not been essentially amended or supplemented (even though
the textual expression of some of them was corrected).
16. On 15 January 2004, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on Territorial Planning, by
Article 1 of which the Law on Territorial Planning (wording of 12
December 1995 with subsequent amendments and supplements) was
amended and set forth in a new wording. The Law on Territorial
Planning of the new wording came into force on 1 May 2004.
The Law on Territorial Planning (wording of 15 January
2004) is designed to regulate the relations linked to the
territorial planning of the Republic of Lithuania and to the
planning of the rights and duties of the natural, legal persons
and state and municipal institutions in this process. This law
consolidates the provisions linked to the preparation, co-
ordination, approval, validity and registration of the
territorial planning documents, to the right of persons to
familiarize themselves with the data of the register of the
territorial planning documents and defines the participation of
the public in the process of the territorial planning and the
publicity of the territorial planning.
The Law on Territorial Planning (wording of 15 January
2004) inter alia establishes (established): the territorial
planning documents shall be registered at the register of the
territorial planning documents (Paragraph 1 of Article 28); all
natural and legal persons shall have the right to familiarize
themselves with the data of the register of the territorial
planning documents at the institution which administers the
corresponding register and to receive copies thereof upon paying
a fixed stamp duty (Paragraph 5 of Article 28); the general,
special and detailed territorial planning shall be public
(Paragraph 1 of Article 30); the organizer of the planning shall
perform the procedures which ensure the publicity of the planning
(publishing of the decision regarding the beginning of
preparation of the territorial planning documents and the
purposes of the planning, consultation, public consideration,
provision of information, etc.) (Paragraph 2 of Article 30); the
natural and legal persons shall have the right to familiarize
themselves with the prepared and approved territorial planning
documents at the institution which organized the territorial
planning and to receive the copies of the territorial planning
documents or parts thereof, as well as the copies of the drawings
upon paying a fee which is established by calculating the
expenses related to the preparation of these documents (copying,
publishing, etc.) (Paragraph 2 of Article 31); the organizers of
the planning have to announce about the prepared territorial
planning document, the procedure, time and date for
familiarization with it and its consideration in the mass media
(Paragraph 4 of Article 31).
In the context of the constitutional justice case at issue,
it needs to be noted that the Law on Territorial Planning
(wording of 15 January 2004) included the provisions which
expressis verbis regulated the relations linked to the publishing
and coming into force of the territorial planning documents,
namely: the common (general) plan of the county, which is
approved by the state, shall come into force the next day after
the decision on the approval of the general plan of the
institution which approves it is published in the official
gazette "Valstybės žinios", provided a later date of its coming
into force has not been established in the decision itself
(Paragraph 10 of Article 11); the approved special plan shall
come into force the next day after the decision of the Seimas,
the Government, ministries or Government institutions and other
state institutions regarding the approval of the special plan has
been published in the official gazette "Valstybės žinios", and
the decision of the institutions of governance of the higher
administrative units and municipalities regarding the approval of
the special plan has been published in the local press, unless
the decision itself establishes a later date of its coming into
force; the approved special plans shall be in force for unlimited
time (Paragraph 4 of Article 18).
The Law on Territorial Planning (wording of 15 January
2004) has been amended and/or supplemented more than once,
however, the provisions specified therein have not been
essentially amended or supplemented (even though the textual
expression of some of them was corrected) (until 5 April 2007,
when the Republic of Lithuania Law on Amending Articles 11, 18
and 26 of the Law on Territorial Planning, which was adopted by
the Seimas on 22 March 2007, came into force).
17. While summing up the legal regulation related to the
preparation of the territorial planning documents and their
publishing at the discussed time period, one needs to note that
the said legal regulation allowed various persons to participate
in consideration of the prepared, but not yet approved,
territorial planning documents, natural and legal persons had the
right to familiarize themselves with prepared and approved
territorial planning documents and to receive the copies of the
territorial planning documents or parts thereof and the copies of
the drawings. No obstacles for that were established in legal
acts. The persons could find out where the approved territorial
planning documents were kept from the register of the territorial
planning documents; such procedure of registration of the
territorial planning documents was established that the register
of the territorial planning documents had to provide where the
original copy and the duplicates of the territorial planning
document were kept.
18. The Regulations for the Register of the Territorial
Planning Documents and the Regulations for the Data Bank of the
Territorial Planning Documents approved by Government Resolution
No. 721 of 19 June 1996 were amended and set forth in a new
wording by Items 1.1 and 1.2 of Government Resolution No. 1428
"On Amending Government of the Republic of Lithuania Resolution
No. 721 'On the Approval of the Regulations for the Register of
the Territorial Planning Documents of the Republic of Lithuania
and the Regulations for the Data Bank of the Territorial Planning
Documents of the Republic of Lithuania' of 19 June 1996" (which
came into force on 14 November 2004).
Some of the items of the Regulations for the Register of
the Territorial Planning Documents (wording of 19 June 1996)
specified in this Constitutional Court ruling were set forth in
the Regulations for the Register of the Territorial Planning
Documents (wording of 10 November 2004) in a bit different
textual form (in addition, some of them were given different
numbers), however, the contents of the legal regulation remained
unchanged in most aspects. In the context of the constitutional
justice case at issue, it needs to be particularly emphasized
that the principled provision that every natural and legal person
have the right of access to the data of the register of the
territorial planning documents under the established procedure
remained. Also there remained the principled provision that the
data of the register of the territorial planning documents are
inter alia the data about the approval of the document, the data
about the amendments of the document, the data about the place
where the original copy of the document is kept and about the
place where the duplicates of the document are kept.
The purpose of the data bank of the territorial planning
documents specified in this Constitutional Court ruling remained
essentially unchanged. In addition, it was established that the
data of the data bank of territorial planning shall be provided
to the state and municipal institutions and establishments under
the procedure established by legal acts (Item 22); other legal
and natural persons shall be provided with the data of the data
bank of territorial planning under the data supply agreements
(Item 23). Thus, the principled provision that legal and natural
persons have the right of access to the data from the data bank
of the territorial planning documents under the established
procedure remained.
19. On 22 March 2007, the Seimas adopted the Republic of
Lithuania Law on Amending Articles 11, 18 and 26 of the Law on
Territorial Planning which came into force on 5 April 2007. Its
Article 2 amended Paragraph 8 of Article 18 (wording of 8 June
2006) of the Law on Territorial Planning and set it forth in a
new wording; the following was established: the approved special
plan shall come into force the next day after the decision of the
Seimas, the Government, the ministries or other institutions of
the Government, the institutions of governance of the higher
administrative units and other state institutions regarding the
approval of the special plan (in the cases established by the
laws) has been published in the official gazette "Valstybės
žinios", and the whole territorial planning document has been
published in the Internet website of the official gazette
"Valstybės žinios" (www.valstybes-zinios.lt), the special plan
approved by the municipality shall come into force the next day
after its publishing in the local press or the next day after the
official information report regarding the approval of the
territorial planning document has been published in the local
press and after the publishing of the whole territorial planning
document in the Internet website of the corresponding
municipality, unless the legal acts themselves establish a later
date of its coming into force; the approved special plans shall
be in force for unlimited time.
V
On the compliance of Government Resolution No. 1269 "On the
Planning Scheme (General Plan) of Curonian Spit National Park" of
19 December 1994 (wording of 19 December 1994) with Paragraph 2
of Article 7 of the Constitution, with the constitutional
principle of a state under the rule of law and 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).
1. It was mentioned that the Scheme approved by the
disputed Government resolution was amended by Government
Resolution No. 690 of 30 June 1997, as well as that Item 2 of the
Annex "The Main Statements of the Planning Scheme (General Plan)
of Curonian Spit National Park" of the disputed Government
resolution was amended and set forth in a new wording by
Government Resolution No. 1378 of 22 December 2005.
The petitioners do not dispute the legal regulation
established by Government Resolution No. 690 of 30 June 1997 and
by Government Resolution No. 1378 of 22 December 2005, it is not
a matter of investigation in this constitutional justice case.
2. 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 the petitioners request to investigate
whether the disputed Government resolution (part thereof) under
the procedure for 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 (by this title the Law "On the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts of
the Republic of Lithuania" has been referred since 1 January 2003
(wording of 6 April 1993 with subsequent amendments and
supplements)), set forth in the wording of 7 July 2005, the
Constitutional Court will not investigate in this constitutional
justice case whether the disputed Government resolution (part
thereof), under the procedure of its publishing 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.
3. One of essential elements of the constitutional
principle of a state under the rule of law is the principle
whereby a legal act, which is in conflict with a legal act of
higher power, may not be applied.
The Constitutional Court held that while administering
justice, the court must invoke only the laws and legal acts that
are not in conflict with the Constitution, it may not apply a
law, which is in conflict with the Constitution (Constitutional
Court rulings of 13 December 2004 and 16 January 2006). The
Constitutional Court also held that a virtually wrong presumption
would be made that, purportedly, a substatutory legal act must be
in line with an unconstitutional law; such presumption would deny
the concept of the hierarchy of legal acts which is entrenched in
the Constitution; thus, the essence of constitutional justice
itself would be distorted (Constitutional Court ruling of 16
January 2007). The Constitutional Court, having established that
the provisions of a law the compliance with the Constitution of
which is not disputed by the petitioner but by which the social
relations regulated by the disputed law are interfered with
conflict with the Constitution, must state so (Constitutional
Court ruling of 14 January 2002). Implementation of
constitutional justice pre-supposes the fact that a legal act
(part thereof) which conflicts with the Constitution must be
removed from the legal system (Constitutional Court ruling of 29
November 2001).
4. While deciding, subsequent to the petitions of the group
of Members of the Seimas, the Klaipėda Regional Administrative
Court, the Klaipėda City Local Court, the Supreme Administrative
Court of Lithuania and the Klaipėda Regional Court, the
petitioners, whether the disputed Government resolution was not
in conflict with the Constitution and 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), it is necessary
to elucidate whether this law itself (articles (their paragraphs)
thereof) complied with the Constitution.
5. It has been held in this Constitutional Court ruling
that the Constitution does not establish expressis verbis the
sources of the official publishing of legal acts or all possible
ways of their publishing; the legislator must establish it by the
law; while regulating these relations, the legislator may
establish a differentiated legal regulation; also such legal
situations are possible, when upon establishing the only source
for the official publishing of the legal acts and the only way of
the official publishing of the legal acts, such legal regulation
would be not only unreasonable, but also legally deficient,
constitutionally groundless, as it would not allow for the law
enshrined in the corresponding legal acts to reach its goals
because inter alia due to the fact that the provisions of the
legal act (for example, the graphic part) would be understood in
an inadequate manner due to not very high quality of printing, as
well as that it would be deviated from the constitutional concept
of the official public publishing of the legal acts (moreover,
the expenses of the publishing could be groundlessly big).
It has been also held that the ConstitutionParagraph 2 of
Article 7 thereof together with the constitutional principle of a
state under the rule of lawnot only allows, but it also requires
that not only the general procedure of the official publishing of
the legal acts, but also such differentiated legal regulation be
established that in the cases when due to especially large size
of the legal act, complex structure, technical problems which
arise due to the publication of the graphic part or other solid
enough reasons which constitutionally ground the separate
publishing of the textual and graphic parts of the legal act
and/or their publishing in different ways, certain legal acts
(parts thereof) would be published while following an alternative
(in comparison with the general procedure of the official
publishing of the legal acts) procedure of the official
publishing of the legal acts, in other sources and/or in other
ways; this is mutatis mutandis applicable also to the situations
when two or more textual parts of the legal act must be published
separately and/or in different ways.
It has also been held that only the official publication of
the graphic part of the legal act in the official gazette, when
due to not very high printing quality it is impossible to read
the drawings, tables, graphs, schemes, maps etc. and, thus, the
possibility for the subjects of law to understand (to find out)
its contents in an adequate way is not ensured, may not be
considered as constitutionally grounded, such printing would not
comply with the constitutional concept of the official public
publishing of legal acts and with the requirements of clarity and
comprehensibility of law which stem from the constitutional
principle of a state under the rule of law.
6. It was mentioned that at the time of adoption of the
disputed Government resolution, 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) provided for
the only official, under this law, source of publication of the
Government resolutionsthe 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"
(wording of 6 April 1993) did not include any provisions 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.
Neither did this law include any provisions 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 that
its size could differ from the usual size of the official gazette
"Valstybės žinios".
The non-establishment of such differentiated legal
regulation is constitutionally groundless as it does not comply
with the concept of the official public publishing of the
constitutional legal acts which is enshrined inter alia in
Paragraph 2 of Article 7 of the Constitution which, together with
the constitutional principle of a state under the rule of law,
implies the necessity to establish the differentiated legal
regulation of the official publishing of the Government
resolutions (and other legal acts).
Thus, the overall legal regulation established in 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), in this aspect, was deficient, constitutionally
groundless.
In this context, it also needs to be noted that, as it was
mentioned, 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 established that 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). Thus,
while establishing such legal regulation, the legislator also
recognized the necessity to differentiate the procedure of the
official publishing of the legal acts. It also needs to be noted
that 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 is not a matter of investigation in this
constitutional justice case.
7. Taking account of the arguments set forth, a conclusion
needs to be drawn 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.
8. Because of the fact that, as it has been held in this
constitutional court ruling, legal acts must be officially
published following the procedure of their official publishing,
which is established namely at the moment when they are issued,
and at the moment when the disputed Government resolution was
adopted, the Law "On the Procedure of Publication and Coming into
Force of Laws and Other Legal Acts of the Republic of Lithuania"
adopted by the Seimas on 6 April 1993 was in force and no
amendments or supplements had been made to it yet; thus, it needs
to be noted that this conclusion is drawn only regarding the said
law set forth in its original wording, i.e. the wording of 6
April 1993.
9. It was mentioned that Paragraph 1 of Article 1 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) established that the publication of the laws and
other legal acts in the official gazette "Valstybės žinios" shall
constitute their official publication; the date of their
publication in the official gazette "Valstybės žinios", which is
indicated on the first page of every publication, shall be the
day of their release; under Item 4 of Paragraph 1 of Article 2 of
this law, Government resolutions must be published namely in the
official gazette "Valstybės žinios"; Paragraph 1 of Article 8 of
the said law established that the Government resolutions, by
which legal norms are established, amended or recognized as no
longer valid shall come into force the day after, when signed by
the Prime Minister and the corresponding minister, they are
published in the official gazette "Valstybės žinios".
10. It needs to be noted that namely these provisions of
Paragraph 1 of Article 1 and Item 4 of Paragraph 1 of Article 2
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) specified in 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, as well as the
provision of Paragraph 1 of Article 8 of this law, specified in
the petitions of the group of Members of the Seimas, the Klaipėda
Regional Administrative Court, the Klaipėda City Local Court, the
Supreme Administrative Court of Lithuania and the Klaipėda
Regional Court, the petitioners, 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 is disputed, reflected the deficiency and constitutional
unreasonableness of the overall legal regulation which is
established in this law.
This statement may not be interpreted as meaning that,
purportedly, only the specified provisions 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 is
established in 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 legal regulation established in 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) is not a matter of investigation in this constitutional
justice case in any other aspect.
11. 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 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 is established in 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 will no longer investigate in
this 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).
Otherwise, 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;
thus, the essence of constitutional justice itself would be
distorted.
12. While deciding, subsequent to the petitions of the
petitioners, 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 and with the constitutional principle of a
state under the rule of law, it needs to be noted that, as it has
been held in this Constitutional Court ruling:
- the ConstitutionParagraph 2 of Article 7 thereof with
the constitutional principle of a state under the rule of law
requires to establish not only the general procedure of the
official publishing of the legal acts, but also such
differentiated legal regulation that in the cases when due to
especially large size of the legal act, complex structure,
technical problems which arise due to the publication of the
graphic part or other solid enough reasons which constitutionally
ground the separate publishing of the textual and graphic parts
of the legal act and/or their publishing in different ways,
certain legal acts (parts thereof) would be published while
following an alternative (in comparison with the general
procedure of the official publishing of the legal acts) procedure
of the official publishing of the legal acts in other sources
and/or in other ways; this is mutatis mutandis applicable also to
the situations when two or more textual parts of the legal act
must be published separately and/or in different ways;
- also in the cases when the graphic part of the legal act
is published separately from the textual part (in a different
source) and/or in a different way than the textual part, one must
follow the requirements of publicity and formality of publishing
of the legal acts which stem from the Constitution, as well as
one must ensure that due to the separate publication of the
textual and the graphic part of the legal acts, no preconditions
would appear to question the authenticity of their contents;
inter alia it is necessary that: by following the general (usual)
procedure of official publishing of the legal acts in the
corresponding source one would announce that the corresponding
legislative decision has been adopted regarding a certain
question. Second, it should be clear from the legal acts
published in this source that a certain constituent part
(constituent parts) of this legal act has (have) not been
published therein; that it would be clear where one can
familiarize himself with the constituent part (constituent parts)
of the legal act, which was (were) not published in the said
source; that one would ensure in practice the accessibility of
the corresponding part of the legal act (thus, also all the legal
act as a whole) to the subjects of law, moreover, no grounded
doubts regarding the authenticity of the contents of the
constituent part (constituent parts) of the legal act which was
(were) not published in the said source should arise for those
subjects of law; if these conditions are followed, and,
certainly, if the non-publishing of a certain constituent part
(constituent parts) of the legal act may be constitutionally
grounded, in itself there are no grounds to state that a certain
legal act is "non-published" or that it is "published" not
publicly, not officially, i.e. not meeting the requirements of
Paragraph 2 of Article 7 of the Constitution, and not heeding the
constitutional principle of a state under the rule of law;
- also such legal situations are possible, when upon
establishing the only source for the official publishing of legal
acts and the only way of the official publishing of legal acts,
such legal regulation would be not only unreasonable, but also
legally deficient, constitutionally groundless, as it would not
allow for the law enshrined in the corresponding legal acts to
reach its goals, because it would be impossible to implement
certain legislative decisions in an expeditious way and as fast
as possible, because the protection of the secrecy of the
corresponding information would not be guaranteed, also because
the provisions of the legal act (for example, the graphic part)
would be understood in an inadequate manner due to not very high
quality of printing, etc.; thus, one would deviate from the
constitutional concept of the official public publishing of legal
acts (besides, the expenses of the publishing could be
groundlessly big);
- under the Constitution, the subjects of legal relations
are bound to behave in good faith and without violating law. They
have the duty to try to find out by themselves the requirements
of law. It is required by the general principle of law bona
fides, which is inseparable from the constitutional principle of
a state under the rule of law; if the non-publishing of a certain
constituent part of a legal act may be constitutionally grounded,
and if one complies with the discussed conditions that the said
source must make it public that a corresponding legislative
decision has been adopted regarding a certain question; it must
be clear from the legal acts published in this source that a
certain constituent part of the legal act is not published in
this source; it must be clear where one can familiarize himself
with the constituent part of the legal act which is not published
in the said source; the accessibility of the corresponding legal
regulation to the subjects of law must be ensured in a practical
way and no doubts could arise to them regarding the authenticity
of the contents of the constituent part of the legal act which
was not published in the said source; no subject of law can
decide not to follow the requirements of law only because of the
fact that these requirements arise from such part of the legal
act which was published separately from others.
13. In this constitutional justice case it has been also
established that, as it has been mentioned:
- Government Resolution No. 1269 "On the Planning Scheme
(General Plan) of Curonian Spit National Park" of 19 December
1994, whereby the Planning Scheme (General Plan) of Curonian Spit
National Park was approved, was published in the official gazette
"Valstybės žinios"; the Annex to this Government resolution
titled "The Main Statements of the Planning Scheme (General Plan)
of Curonian Spit National Park" was also published, while the
entire Scheme was not published in the official gazette
"Valstybės žinios";
- the Scheme is of large size: it is composed of 18 volumes
(more than 1,400 pages) which include not only textual, but also
graphic parts (not only the written text, but also drawings,
etc.); moreover, the graphic part also includes drawings of large
size (51.5 x 226 cm, 51 x 221 cm, 59.5 x 100 cm, 43 x 161.5 cm,
59.5 x 167 cm, 59.5 x 171 cm, 59 x 189.5 cm, 59 x 207 cm, etc.);
- in December 1994, i.e. at the time when the Scheme was
approved by the Government and for quite a while afterwards,
virtually there were no technical possibilities to publish the
Scheme namely in the official gazette "Valstybės žinios" (and in
such edition and size, in which at that moment the official
gazette "Valstybės žinios" was printed and in which, pursuant to
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), Government resolutions had to be published
officially) in its entirety (all the constituent parts of the
Scheme) in such size in which the Scheme was approved by the
Government, i.e. without losing the information value (clarity,
quality, etc.) of the Scheme;
- from the legal acts which regulated the preparation,
registration, publishing and coming into force of the territorial
planning documents (some of them were issued soon after the
Scheme was approved by the Government), it is obvious that it had
to be (and it really was) clear for the subjects of law where to
familiarize themselves with the Scheme (its original copies and
duplicates) which had not been published in the official gazette
"Valstybės žinios";
- all persons who wanted to familiarize themselves with the
Scheme could do thatthey were not and are not hindered from
reading it, making copies, etc.;
- while issuing the conditions of the detailed planning (in
Curonian Spit National Park), one has always referred and refers
to the Scheme, and the "extracts" of the Scheme are "simply
inserted" in the detailed plans;
- while issuing the conditions of the detailed planning (in
Curonian Spit National Park) there were not any legal disputes
regarding the accessibility of the Scheme to the subjects of law
or the authenticity of its contents; thus, even though the entire
Scheme was not published in the official gazette "Valstybės
žinios" (only the main statements thereof were published in the
official gazette "Valstybės žinios"), it was universally
recognized that it was effective.
14. It has been held in this Constitutional Court ruling
that no decision related to the administration of the territory
of Curonian Spit National Park (inter alia with the detailed
plans of the settlements, forest management, land management,
water economy, planning of settlements, countryside regeneration,
road and engineering communications, etc.) could (or can at
present) be adopted without taking account of the said Scheme
approved by the Government and it could not (and cannot at
present) be in conflict with the solutions of the said Scheme.
Disregarding of these solutions, particularly knowing that the
State of Lithuania has always treated and treats the Curonian
Spit as a unique landscape complex created by nature and mana
territory which is to be protected and to which particular legal
treatment is to be established, which is a universally known
factwould not be in compliance with the general principle of law
bona fides.
15. It also needs to be noted that in this Constitutional
Court ruling a conclusion has been drawn 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.
16. Thus, because of all the circumstances specified
herein, the mere fact that the Planning Scheme (General Plan) of
Curonian Spit National Park which was approved by Government
Resolution No. 1269 "On the Planning Scheme (General Plan) of
Curonian Spit National Park" of 19 December 1994 was not
published in the official gazette "Valstybės žinios" as a whole,
in itself does not give grounds to state that the Scheme was "not
published" or "published" not in public and not officially, that
the access to it was not ensured for the subjects of law, and
that thus the requirements of Paragraph 2 of Article 7 of the
Constitution were violated and the constitutional principle of a
state under the rule of law was disregarded. Thus, taking account
of all the specified circumstances, there are no legal grounds to
state 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), as regards the procedure of
its publishing, is in conflict with Paragraph 2 of Article 7 of
the Constitution and with the constitutional principle of a state
under the rule of law.
17. Due to all the circumstances specified herein, the
legal situation analyzed in this constitutional justice case
virtually differs from the legal situation which was analyzed in
the constitutional justice case subsequent to the petition of the
Vilnius Regional Court, the petitioner, requesting to investigate
whether Government Resolution No. 458 "On the Approval of the
Methods for Calculation of Damage Inflicted on Nature as a Result
of Violation of Environmental Protection Laws" (hereinafter also
referred to as Government Resolution No. 458 of 8 November 1991)
of 8 November 1991 was not in conflict with Paragraph 2 of
Article 7, Paragraph 2 of Article 95 of the Constitution and
Paragraph 1 of Article 8 of the Republic of Lithuania Law "On the
Procedure of Publication and Coming Into Force of Republic of
Lithuania Laws and Other Legal Acts", in which, on 29 October
2003, the Constitutional Court adopted the Ruling "On the
Compliance of Government of the Republic of Lithuania Resolution
No. 458 'On the Approval of the Methods for Calculation of Damage
Inflicted on Nature as a Result of Violation of Environmental
Protection Laws' of 8 November 1991 with the Constitution of the
Republic of Lithuania", whereby it recognized that Government
Resolution No. 458 of 8 November 1991 was in conflict with
Paragraph 2 of Article 7 of the Constitution, Paragraph 2 of the
Law "On the Procedure of Entry into Effect of the Constitution of
the Republic of Lithuania" and with the constitutional principle
of a state under the rule of law, and which is referred to in the
petitions of the petitioners.
Such difference of these two legal situations is determined
inter alia by the fact that in the said previously considered
constitutional justice case one investigated whether the legal
act, whose size was not very large, whose structure was not
complex and, what is the most important, that legal act did not
have the graphic part regarding the publication of which in the
official gazette "Valstybės žinios" there would have arisen any
technical problems, was not in conflict with the Constitution. In
addition, the conflict of Government Resolution No. 458 of 8
November 1991 with the Constitution is reasoned in the
Constitutional Court ruling of 29 October 2003 on the fact that
upon coming into force of the Constitution, the Government had
not published the Methods for Calculation of Damage Inflicted on
Nature as a Result of Violation of Environmental Protection Laws
which was approved by its Resolution No. 458 "On the Approval of
the Methods for Calculation of Damage Inflicted on Nature as a
Result of Violation of Environmental Protection Laws" of 8
November 1991 in any official source of publication of the legal
acts at all, thus, it had not implemented its constitutional duty
to perform, within a reasonable time period, the review of this
legal act which had been issued before the coming into force of
the Constitution and which was still effective and to harmonize
it, as regards its publishing, with the provisions of the
Constitution in general.
18. Taking account of the arguments set forth, a conclusion
needs to be drawn that Government Resolution No. 1269 "On the
Planning Scheme (General Plan) of Curonian Spit National Park" of
19 December 1994, as regards the procedure of its publishing, is
not in conflict with Paragraph 2 of Article 7 of the Constitution
and with the constitutional principle of a state under the rule
of law.
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 recognize that 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) (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 Constitution of the Republic of Lithuania and with the
constitutional principle of a state under the rule of law.
2. To recognize that 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) (Official Gazette Valstybės
žinios, 1994, No. 99-1977), as regards the procedure of its
publishing, is not in conflict with the Constitution of the
Republic of Lithuania.
This ruling of the Constitutional Court 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
Toma Birmontienė
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Vytautas Sinkevičius
Stasys Stačiokas
Romualdas Kęstutis Urbaitis