Case No. 16/07-17/07-20/08
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 6 (WORDING OF 8 JUNE
2006) OF ARTICLE 22 OF THE REPUBLIC OF LITHUANIA LAW ON
TERRITORIAL PLANNING (WORDING OF 15 JANUARY 2004) WITH
THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, ON THE
COMPLIANCE OF ITEM 7.2 (WORDING OF 15 JANUARY 2004) OF
THE SCHEDULE OF THE PROCEDURE FOR TRANSFER OF RIGHTS
AND OBLIGATIONS OF THE ORGANISER OF DETAILED PLANNING
OF TERRITORIES AS WELL AS CONCLUSION OF CONTRACTS
APPROVED BY RESOLUTION OF THE GOVERNMENT OF THE
REPUBLIC OF LITHUANIA NO. 635 "ON APPROVAL OF THE
SCHEDULE OF THE PROCEDURE FOR TRANSFER OF RIGHTS AND
OBLIGATIONS OF THE ORGANISER OF DETAILED PLANNING OF
TERRITORIES AS WELL AS CONCLUSION OF CONTRACTS" OF 26
MAY 2004 WITH THE CONSTITUTION OF THE REPUBLIC OF
LITHUANIA, AS WELL AS WITH PROVISIONS OF THE REPUBLIC
OF LITHUANIA LAW ON TERRITORIAL PLANNING AND THE
REPUBLIC OF LITHUANIA LAW ON FORESTS, AND ON THE
COMPLIANCE OF ITEM 7.4 OF THE PROCEDURE FOR CONVERTING
FOREST LAND INTO OTHER LANDED PROPERTY AS APPROVED BY
ITEM 1 OF RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC
OF LITHUANIA NO. 641 "ON APPROVAL OF THE PROCEDURE FOR
CONVERTING FOREST LAND INTO OTHER LANDED PROPERTY" WITH
THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, AS WELL
AS PROVISIONS OF THE REPUBLIC OF LITHUANIA LAW ON
FORESTS AND THE REPUBLIC OF LITHUANIA LAW ON
TERRITORIAL PLANNING
22 June 2009
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis,
Algirdas Taminskas and Romualdas Kęstutis Urbaitis,
with the secretary of the sittingDaiva Pitrėnaitė,
in the presence of:
the representatives of the Seimas of the Republic of
Lithuania, a party concerned, who were Aurelija Stancikienė, a
Member of the Seimas, Darius Karvelis, the Head of the Office of
the Committee on Environment Protection of the Seimas, Daina
Petrauskaitė, the Head of the Civil Law Unit of the Legal
Department of the Office of the Seimas, as well as Neringa
Azguridienė, an Advisor at the Public Law Unit of the same
department,
the representatives of the Government of the Republic of
Lithuania, a party concerned, who were Robertas Klovas, the
Director of the Legal and Personnel Department of the Ministry of
Environment of the Republic of Lithuania, and Eglė Izokaitytė,
the Chief Specialist at the Law Application Division of the
aforementioned department,
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania, Article 1 of the Law on the Constitutional
Court of the Republic of Lithuania, in its public hearing on 8
June 2009 heard constitutional justice case No. 16/07-17/07-20/08
subsequent to:
1) the petition (No. 1B-08/2007) of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate:
- whether Paragraph 6 (wording of 8 June 2006) of Article 22
of the Republic of Lithuania Law on Territorial Planning (wording
of 15 January 2004) to the extent that, according to the
petitioner, it does not establish that detailed plans, under
which the main targeted purpose of utilisation of land is
converted from forestry land into land for other purposes, where
such conversion is provided for in general plans as well as in
special plans of a municipality or part thereof, is not in
conflict with Paragraph 3 of Article 46 and Paragraph 1 of
Article 54 of the Constitution of the Republic of Lithuania and
the constitutional principle of a state under the rule of law,
- whether Item 7.2 (wording of Government resolution No. 36
of 15 January 2004) of the Schedule of the Procedure for Transfer
of Rights and Obligations of the Organiser of Detailed Planning
of Territories as well as Conclusion of Contracts approved by
Resolution of the Government or the Republic of Lithuania No. 635
"On Approval of the Schedule of the Procedure for Transfer of
Rights and Obligations of the Organiser of Detailed Planning of
Territories as well as Conclusion of Contracts" of 26 May 2004 to
the extent that, according to the petitioner, it does not define
that the rights and obligations of the organiser of detailed
territorial planning may be transferred and the contract may be
concluded, as well as the main targeted land utilisation purpose
may be converted from forestry land into land for other
purposesconstruction of buildings or development of other
activitywhere such conversion is provided for in general plans
as well as in special plans of a municipality or part thereof
(cities, towns), is not in conflict with Paragraph 3 of Article
46, Paragraph 1 of Article 54 of the Constitution of the Republic
of Lithuania, the constitutional principle of a state under the
rule of law, Paragraph 4 (wording of 8 June 2006) of Article 24
of the Republic of Lithuania Law on Territorial Planning (wording
of 15 January 2004), as well as Paragraph 1 of Article 11 of the
Republic of Lithuania Law on Forests (wording of 10 April 2001),
- whether Item 7.4 of the Procedure for Converting Forest
Land into Other Landed Property approved by Item 1 of Resolution
of the Government or the Republic of Lithuania No. 641 "On
Approval of the Procedure for Converting Forest Land into Other
Landed Property" of 9 May 2002 is not in conflict with Article 54
of the Constitution, the constitutional principle of a state
under the rule of law, Paragraph 1 of Article 11 of the Republic
of Lithuania Law on Forests (wording of 10 April 2001), Paragraph
4 (wording of 8 June 2006) of Article 24 and Paragraph 3 (wording
of 8 June 2006) of Article 26 of the Republic of Lithuania Law on
Territorial Planning (wording of 15 January 2004);
2) the petition (No. 1B-17/2007) of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate:
- whether Paragraph 6 (wording of 8 June 2006) of Article 22
of the Republic of Lithuania Law on Territorial Planning (wording
of 15 January 2004) to the extent that, according to the
petitioner, it does not establish that detailed plans, under
which the main targeted purpose of utilisation of land is
converted from forestry land into land for other purposes, where
such conversion is provided for in general plans as well as in
special plans of a municipality or part thereof, is not in
conflict with Paragraph 3 of Article 46 and Paragraph 1 of
Article 54 of the Constitution of the Republic of Lithuania and
the constitutional principle of a state under the rule of law,
- whether Item 7.2 (wording of Government resolution No. 36
of 15 January 2004) of the Schedule of the Procedure for Transfer
of Rights and Obligations of the Organiser of Detailed Planning
of Territories as well as Conclusion of Contracts approved by
Resolution of the Government or the Republic of Lithuania No. 635
"On Approval of the Schedule of the Procedure for Transfer of
Rights and Obligations of the Organiser of Detailed Planning of
Territories as well as Conclusion of Contracts" of 26 May 2004 to
the extent that, according to the petitioner, it does not define
that the rights and obligations of the organiser of detailed
territorial planning may be transferred and the contract may be
concluded, as well as the main targeted land utilisation purpose
may be converted from forestry land into land for other
purposesconstruction of buildings or development of other
activitywhere such conversion is provided for in general plans
as well as in special plans of a municipality or part thereof
(cities, towns), is not in conflict with Paragraph 3 of Article
46, Paragraph 1 of Article 54 of the Constitution of the Republic
of Lithuania, the constitutional principle of a state under the
rule of law, Paragraph 4 (wording of 8 June 2006) of Article 24
of the Republic of Lithuania Law on Territorial Planning (wording
of 15 January 2004), as well as Paragraph 1 of Article 11 of the
Republic of Lithuania Law on Forests (wording of 10 April 2001),
- whether Item 7.4 of the Procedure for Converting Forest
Land into Other Landed Property approved by Item 1 of Resolution
of the Government or the Republic of Lithuania No. 641 "On
Approval of the Procedure for Converting Forest Land into Other
Landed Property" of 9 May 2002 is not in conflict with Article 54
of the Constitution, the constitutional principle of a state
under the rule of law, Paragraph 1 of Article 11 of the Republic
of Lithuania Law on Forests (wording of 10 April 2001), Paragraph
4 (wording of 8 June 2006) of Article 24 and Paragraph 3 (wording
of 8 June 2006) of Article 26 of the Republic of Lithuania Law on
Territorial Planning (wording of 15 January 2004);
3) the petition (No. 1B-21/2008) of the Vilnius Regional
Administrative Court, the petitioner, requesting to investigate:
- whether Paragraph 6 (wording of 8 June 2006) of Article 22
of the Republic of Lithuania Law on Territorial Planning (wording
of 15 January 2004) to the extent that, according to the
petitioner, it does not establish that detailed plans, under
which the main targeted purpose of utilisation of land is
converted from forestry land into land for other purposes, where
such conversion is provided for in general plans as well as in
special plans of a municipality or part thereof, is not in
conflict with Paragraph 3 of Article 46 and Paragraph 1 of
Article 54 of the Constitution of the Republic of Lithuania and
the constitutional principle of a state under the rule of law,
- whether Item 7.4 of the Procedure for Converting Forest
Land into Other Landed Property approved by Item 1 of Resolution
of the Government or the Republic of Lithuania No. 641 "On
Approval of the Procedure for Converting Forest Land into Other
Landed Property" of 9 May 2002 is not in conflict with Article 54
of the Constitution, the constitutional principle of a state
under the rule of law, Paragraph 1 of Article 11 of the Republic
of Lithuania Law on Forests (wording of 10 April 2001), Paragraph
4 (wording of 8 June 2006) of Article 24 and Paragraph 3 (wording
of 8 June 2006) of Article 26 of the Republic of Lithuania Law on
Territorial Planning (wording of 15 January 2004).
By the Constitutional Court Decision "On Joining the
Petitions" of 1 October 2007, petitions Nos. 1B-17/2007 and 1B-
08/2007 of the Vilnius Regional Administrative Court were joined
into one case and it was given reference No. 16/07-17/07.
By the Constitutional Court Decision "On Joining the
Petitions" of 21 April 2009, petition No. 1B-21/2008 of the
Vilnius Regional Administrative Court was also added to case No.
16/07-17/07; the case was given reference No. 16/07-07/07-20/08.
The Constitutional Court
has established:
I
1. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition (No. 1B-08/
2007) requesting to investigate:
- whether Paragraph 6 (wording of 8 June 2006) of Article 22
of the Law on Territorial Planning (wording of 15 January 2004)
to the extent that, according to the petitioner, it does not
establish that detailed plans, under which the main targeted
purpose of utilisation of land is converted from forestry land
into land for other purposes, where such conversion is provided
for in general plans as well as in special plans of a
municipality or part thereof, is not in conflict with Paragraph 3
of Article 46 and Paragraph 1 of Article 54 of the Constitution
and the constitutional principle of a state under the rule of
law,
- whether Item 7.2 (wording of 15 January 2004) of the
Schedule of the Procedure for Transfer of Rights and Obligations
of the Organiser of Detailed Planning of Territories as well as
Conclusion of Contracts (hereinafter also referred to as the
Schedule) approved by Government Resolution No. 635 "On Approval
of the Schedule of the Procedure for Transfer of Rights and
Obligations of the Organiser of Detailed Planning of Territories
as well as Conclusion of Contracts" of 26 May 2004 (hereinafter
also referred to as Government resolution No. 635 of 26 May 2004)
to the extent that, according to the petitioner, it does not
define that the rights and obligations of the organiser of
detailed territorial planning may be transferred and the contract
may be concluded, as well as the main targeted land utilisation
purpose may be converted from forestry land into land for other
purposesconstruction of buildings or development of other
activitywhere such conversion is provided for in general plans
as well as in special plans of a municipality or part thereof
(cities, towns), is not in conflict with Paragraph 3 of Article
46, Paragraph 1 of Article 54 of the Constitution, the
constitutional principle of a state under the rule of law,
Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law on
Territorial Planning (wording of 15 January 2004), as well as
Paragraph 1 of Article 11 of the Law on Forests (wording of 10
April 2001),
- whether Item 7.4 of the Procedure for Converting Forest
Land into Other Landed Property (hereinafter also referred to as
the Procedure) approved by Item 1 of Government Resolution No.
641 "On Approval of the Procedure for Converting Forest Land into
Other Landed Property" of 9 May 2002 (hereinafter also referred
to as Government resolution No. 641 of 9 May 2002) is not in
conflict with Article 54 of the Constitution, the constitutional
principle of a state under the rule of law, Paragraph 1 of
Article 11 of the Law on Forests (wording of 10 April 2001),
Paragraph 4 (wording of 8 June 2006) of Article 24 and Paragraph
3 (wording of 8 June 2006) of Article 26 of the Law on
Territorial Planning (wording of 15 January 2004).
2. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition (No. 1B-17/
2007) requesting to investigate:
- whether Paragraph 6 (wording of 8 June 2006) of Article 22
of the Law on Territorial Planning (wording of 15 January 2004)
to the extent that, according to the petitioner, it does not
establish that detailed plans, under which the main targeted
purpose of utilisation of land is converted from forestry land
into land for other purposes, where such conversion is provided
for in general plans as well as in special plans of a
municipality or part thereof, is not in conflict with Paragraph 3
of Article 46 and Paragraph 1 of Article 54 of the Constitution
and the constitutional principle of a state under the rule of
law,
- whether Item 7.2 (wording of 15 January 2004) of the
Schedule approved by Government resolution No. 635 of 26 May 2004
to the extent that, according to the petitioner, it does not
define that the rights and obligations of the organiser of
detailed territorial planning may be transferred and the contract
may be concluded, as well as the main targeted land utilisation
purpose may be converted from forestry land into land for other
purposesconstruction of buildings or development of other
activitywhere such conversion is provided for in general plans
as well as in special plans of a municipality or part thereof
(cities, towns), is not in conflict with Paragraph 3 of Article
46, Paragraph 1 of Article 54 of the Constitution, the
constitutional principle of a state under the rule of law,
Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law on
Territorial Planning (wording of 15 January 2004), as well as
Paragraph 1 of Article 11 of the Republic of Lithuania Law on
Forests (wording of 10 April 2001),
- whether Item 7.4 of the Procedure approved by Item 1 of
Government resolution No. 641 of 9 May 2002 is not in conflict
with Article 54 of the Constitution, the constitutional principle
of a state under the rule of law, Paragraph 1 of Article 11 of
the Law on Forests (wording of 10 April 2001), Paragraph 4
(wording of 8 June 2006) of Article 24 and Paragraph 3 (wording
of 8 June 2006) of Article 26 of the Law on Territorial Planning
(wording of 15 January 2004).
3. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling the said court suspended the consideration of the case and
applied to the Constitutional Court with a petition (No. 1B-21/
2008) requesting to investigate:
- whether Paragraph 6 (wording of 8 June 2006) of Article 22
of the Law on Territorial Planning (wording of 15 January 2004)
to the extent that, according to the petitioner, it does not
establish that detailed plans, under which the main targeted
purpose of utilisation of land is converted from forestry land
into land for other purposes, where such conversion is provided
for in general plans as well as in special plans of a
municipality or part thereof, is not in conflict with Paragraph 3
of Article 46 and Paragraph 1 of Article 54 of the Constitution
and the constitutional principle of a state under the rule of
law,
- whether Item 7.4 of the Procedure for Converting Forest
Land into Other Landed Property approved by Item 1 of Resolution
of the Government or the Republic of Lithuania No. 641 "On
Approval of the Procedure for Converting Forest Land into Other
Landed Property" of 9 May 2002 is not in conflict with Article 54
of the Constitution, the constitutional principle of a state
under the rule of law, Paragraph 1 of Article 11 of the Law on
Forests (wording of 10 April 2001), Paragraph 4 (wording of 8
June 2006) of Article 24 and Paragraph 3 (wording of 8 June 2006)
of Article 26 of the Law on Territorial Planning (wording of 15
January 2004).
II
1. The petitions (Nos. 1B-08/2007, 1B-17/2007 and 1B-21/
2008) of the Vilnius Regional Administrative Court, the
petitioner, requesting to investigate whether Paragraph 6
(wording of 8 June 2006) of Article 22 of the Law on Territorial
Planning (wording of 15 January 2004) to the indicated extent is
not in conflict with the Constitution, are based on the following
arguments.
According to the petitioner, the state must regulate
economic activity in order that the land intended for
agriculture, forestry and other purposes is utilised in line with
the conditions that are defined in territorial planning documents
and in order that the interests of the state, of the owner of the
forest and of the public are harmonised when, upon exception
procedure, the forest land is converted into other landed
property. In the opinion of the petitioner, these interests are
harmonised by carrying out the territorial planning of the
Republic of Lithuania, i.e. by drafting territorial planning
documents and by organising, upon the procedure defined by the
Government, a public discussion about drafts of the planning
documents. Various provisions of the Law on Territorial Planning
consolidate a principle that solutions of territorial planning of
lower level must be in line with the territorial planning
document of upper level, as well as with the laws and other legal
acts.
The disputed Paragraph 6 (wording of 8 June 2006) of Article
22 of the Law on Territorial Planning (wording of 15 January
2004) provides that the detailed plans that convert the main
purpose of utilisation of land are drafted in the event that such
conversion is provided for in general or special plans of a
municipality or part thereof, still this provision regulates
solely conversion of land for agricultural purposes to land for
other purposes and does not define conditions of drafting the
detailed plans, in which the main targeted purpose of utilisation
of land is converted from forestry into other purpose. The
petitioner has doubts whether the situation of the owners of land
lots intended for forestry and agriculture, who wish to convert
the main targeted purpose of such lots, becomes unequal due to
such legal regulation entrenched in the Law on Territorial
Planning, whether the principles of reconstructive and rational
management of forests are not violated, and whether legal
preconditions are created for proportional and fair harmonisation
of the interests of the owners of land lots intended for forestry
and the public interest, and for ensuring the rational
utilisation of forests.
The petitioner indicates that the reasons for his doubt
originate from inter alia the following provisions of the
official constitutional doctrine: land, forests, parks, water
bodies are special objects of ownership, the foundation of
welfare of the nation; their utilisation and protection is a
prerequisite of human existence as well as survival and
development of a human being and the society; environment
protection, rational utilisation and increase of natural
resources is the public interest, which must be guaranteed by the
state; special ecological, social and economic significance of
the forest causes certain restrictions of ownership right of the
owners of forest, which must be in proportion to the
constitutionally reasoned purpose; the ownership right may be
limited by means of a law, however, such limitations must be
necessary in a democratic society in order to preserve the values
that are entrenched in the Constitution, and the principle of
proportionality must be followed.
2. The petitions (Nos. 1B-08/2007, 1B-17/2007 and 1B-21/
2008) of the Vilnius Regional Administrative Court, the
petitioner, requesting to investigate whether Item 7.2 (wording
of 15 January 2004) of the Schedule approved by Government
resolution No. 635 of 26 May 2004 to the indicated extent is not
in conflict with the Constitution, the Law on Territorial
Planning and the Law on Forests (articles and paragraphs thereof)
are based on the following arguments.
Item 7.2 (wording of 15 January 2007), analogously to
Paragraph 6 of Article 22 of the Law on Territorial Planning,
provides for a condition related to converting the main targeted
purpose of utilisation of land for agricultural purposes into
land for other purposes that such conversion is possible only in
the event that this is defined in general and special plans of a
municipality or part thereof (cities, towns); meanwhile no such
condition is established concerning the converting of the main
targeted purpose of utilisation of land intended for forestry
purposes into land for other purposes. Therefore the petitioner
had a doubt whether this item of the Schedule is not in conflict
with the Constitution, the Law on Territorial Planning and the
Law on Forests to the extent that, according to the petitioner,
it does not define that the rights and obligations of the
organiser of detailed territorial planning may be transferred and
the contract may be concluded, as well as the main targeted land
utilisation purpose may be converted from forestry land into land
for other purposesconstruction of buildingswhere such
conversion is provided for in general plans as well as in special
plans of a municipality or part thereof (cities, towns).
3. The petitions (Nos. 1B-08/2007, 1B-17/2007 and 1B-21/
2008) of the Vilnius Regional Administrative Court, the
petitioner, requesting to investigate whether Item 7.4 of the
Procedure approved by Item 1 of Government resolution No. 641 of
9 May 2002, is not in conflict with the Constitution, the Law on
Territorial Planning and the Law on Forests (articles and
paragraphs thereof) are based on the following arguments.
Item 7.4 of the Procedure approved by Item 1 of Government
resolution No. 641 of 9 May 2002 defines that in the forests of
groups II and IV, which are not listed in Items 7.1 and 7.2 of
the Procedure, forest land may also be converted into other
landed property without general plans of the territory of a
municipality or parts of the territory of a municipality, which
are drafted and approved upon the procedure set in the Law on
Territorial Planning, or special documents on planningprojects
of forest management.
According to the petitioner, it is possible to harmonise the
interests of the state, of the owner of the forest and of the
public only by carrying out the procedures of territorial
planning of the Republic of Lithuania and following the principle
of general planning of territories whereby solutions of documents
of territorial planning of lower level should not violate the
laws and other legal acts, and be in line with territorial
planning documents of upper level. Therefore the petitioner has
doubts as to whether the legal regulation entrenched in Item 7.4
of the Procedure approved by Item 1 of Government resolution No.
641 of 9 May 2002, which regulates the drafting of detailed plans
that convert the main targeted purpose of the utilisation of land
from forestry into agriculture, ensured a rational, moderate
utilisation of natural resources (forest), as well as "whether
one did not violate the principles of continuous, rational
utilisation of the forest and reforestation, and whether a
proportion was maintained between the interests of the owners of
the forest and the public interest."
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from the representatives of the Seimas, a party concerned, who
were A. Stancikienė, a member of the Seimas, D. Karvelis, the
Head of the Office of the Committee on Environment Protection of
the Seimas, N. Azguridienė, an Advisor at the Public Law Unit of
the Legal Department of the Office of the Seimas, D.
Petrauskaitė, the Head of the Civil Law Unit of the same
department, former representatives of the Seimas, a party
concerned, who were Antanas Bosas, a former member of the Seimas
(pursuant to Ordinance No. PP-22 of the Speaker of the Seimas of
17 February 2009, A. Bosas lost the power to represent the Seimas
in this constitutional justice case), Bronius Bradauskas, the
former Chairman of the Seimas Committee on Environment Protection
(pursuant to Ordinance No. PP-23 of the Chairman of the Seimas of
17 February 2009, B. Bradauskas lost the power to represent the
Seimas in this constitutional justice case), as well as the
representatives of the Government, a party concerned, who were R.
Klovas, the Director of the Legal and Personnel Department of the
Ministry of Environment, A. Murauskaitė, the Head of the Law
Application Division of the same department (upon Ordinance No.
196 of the Prime Minister of 3 June 2009, A. Murauskaitė lost the
power to represent the Government in this constitutional justice
case), and E. Izokaitytė, the Chief Expert at the Law Application
Division of the aforementioned department, which state that the
disputed legal regulation is not in conflict with the respective
legal acts of higher power inter alia the Constitution.
1. In the written explanations of the representatives of the
Seimas, a party concerned, who were A. Bosas, B. Bradauskas and
D. Karvelis, one stated that Paragraph 6 (wording of 8 June 2006)
of Article 22 of the Law on Territorial Planning (wording of 15
January 2004) to the extent disputed by the petitioner is not in
conflict with the Constitution.
In the opinion of the representatives of the Seimas, the
disputed legal regulation that is established in the Law on
Territorial Planning should be assessed in a systemic way, by
taking into account other provisions of the same law and other
laws. Social relations of drafting the territorial planning
documents in case of converting the main targeted purpose of
utilisation are regulated without violating the principles of
protection, supervision, utilisation of natural environment,
fauna and flora as well as separate objects of nature and
especially valuable locations, those of restoration and increase
of natural resources.
According to the representatives of the Seimas, it is
obvious from the provisions of Paragraph 3 (wording of 8 June
2006) of Article 26, Paragraph 2 (wording of 8 June 2006) of
Article 7 and Paragraph 2 of Article 13 of the Law on Territorial
Planning (wording of 15 January 2004), which consolidate the
general (and are not disputed by the petitioner) "principles of
legal hierarchy of documents on territorial planning that are to
be approved by legal acts", that solutions of the detailed plan
may not contradict to solutions of the general or special plan,
that these principles apply to all detailed plans irrespective of
the established main targeted purpose of utilisation of land,
including the land meant for forestry.
In the opinion of the representatives of the Seimas, the
disputed Paragraph 6 (wording of 8 June 2006) of Article 22 of
the Law on Territorial Planning (wording of 15 January 2004)
consolidates a special provision on land for agricultural
purposes. This was made because social relations of converting
forest land into other landed property are regulated by Article
11 of the Law on Forests (wording of 10 April 2001), meanwhile,
conversion of land for agricultural purposes has not been clearly
regulated.
2. In the written explanations of N. Azguridienė and D.
Petrauskaitė, representatives of the Seimas, a party concerned,
it is maintained that Paragraph 6 (wording of 8 June 2006) of
Article 22 of the Law on Territorial Planning (wording of 15
January 2004) to the indicated extent is not in conflict with the
Constitution.
In the opinion of the representatives of the Seimas, the
main law that regulates planning of territories is the Law on
Territorial Planning. However, planning of territories is
regulated by other laws as well. The disputed Paragraph 6 of
Article 22 of the Law on Territorial Planning contains a special
provision that is applicable while drafting detailed plans when
the purpose of land for agricultural purposes is converted.
Having assessed the legal regulation that sets the procedure
of converting forest land into other landed property, the
representatives of the Seimas conclude that the rules for
converting forest land into other landed property are stricter in
comparison to the rules that apply to conversion of land for
agricultural purposes into other landed property. In their
opinion, the owners of forest land, who intend to convert the
purpose of the forest land, never enjoyed in the past or do not
enjoy at present more privileges in comparison to the owners of
land for agricultural purposes, and the fact that the procedure
of converting the main targeted purpose of forest land and land
for agricultural purposes is defined by different legal acts,
does not mean in itself that one group of owners of land enjoy
more rights in comparison to the other group.
3. In her written explanations A. Stancikienė, a
representative of the Seimas, a party concerned, basically
consents to the explanations of N. Azguridienė and D.
Petrauskaitė, representatives of the Seimas.
4. In the written explanations of A. Murauskaitė, a
representative of the Government, a party concerned, it is
maintained that Item 7.2 (wording of 15 January 2007) of the
Schedule approved by Government resolution No. 635 of 26 May 2004
to the indicated extent and Item 7.4 of the Procedure approved by
Item 1 of Government resolution No. 641 of 9 May 2002 were not in
conflict with the Constitution and laws.
4.1. According to the representative of the Government,
pursuant to the Law on Territorial Planning municipalities may,
upon the procedure defined by the Government, conclude contracts
with users of land lots on transfer of rights and obligations of
the organiser of detailed territorial planning. Such procedure is
defined in the Schedule (wording of 15 January 2007) approved by
Government resolution No. 635 of 26 May 2004. Pursuant to Item 3
of the Schedule, a municipality may conclude the contract only
when the objectives of planning that are indicated in the
applications of possessors or users of the land lots are not in
conflict with the requirements of laws and other legal acts and
solutions of general and special plans. Thus, the disputed legal
regulation entrenched in the Schedule (wording of 15 January
2007) approved by Government resolution No. 635 of 26 May 2004 is
not in conflict with the Constitution, the Law on Territorial
Planning and the Law on Forests.
According to the representative of the Government, the
Schedule (wording of 15 January 2007) approved by Government
resolution No. 635 of 26 May 2004 sets only the procedure of
transferring the rights and obligations of the organiser of
territorial planning and terms of concluding the contract,
therefore this legal act should not be regarded as a legal act
that sets conditions and restrictions for converting the main
targeted purpose of utilisation of land.
4.2. The representative of the Government notes that,
according to the legal regulation, entrenched in Item 7.4 of the
Procedure approved by Item 1 of Government resolution No. 641 of
9 May 2002, a possibility was provided to convert the forest land
located in the forests of groups III and IV, which are not listed
in Items 7.1 and 7.2 of the Procedure, into other landed property
even in the absence of general plans of the territory of a
municipality or parts of the territory of a municipality, which
are drafted and approved upon the procedure defined in the Law on
Territorial Planning, or in the absence of special documents on
planningprojects of forest management. Such possibility was not
provided for in Paragraph 4 (wording of 8 June 2006) of Article
24 and Paragraph 3 (wording of 8 June 2006) of Article 26 of the
Law on Territorial Planning (wording of 15 January 2004) (the
compliance of Item 7.4 of the Procedure approved by Item 1 of
Government resolution No. 641 of 9 May 2002 with the said
paragraph is disputed the petitioner).
Moreover, according to the representative of the Government,
one should distinguish between the cases where nature is harmed
by illegal actions, and where forest land is converted into other
landed property in line with the procedure defined in legal acts.
It is impossible to state that, after forest is converted into
other landed property, the object as a valuable ceases to exist,
because land for agricultural purposes (meadow, ploughland) also
constitutes a valuable, and, having converted the purpose of land
from one type to another, one satisfies the interests related to
obtaining a residential space and development of economic
activity. The existing legal regulation guarantees a balance and
possibility to live in a harmonious and well-balanced
environment.
5. R. Klovas and E. Izokaitytė, representatives of the
Government, a party concerned, submitted written explanations in
which they basically consented to the explanations of A.
Murauskaitė.
IV
At the Constitutional Court hearing, A. Stancikienė, a
member of the Seimas, D. Karvelis, N. Azguridienė, D.
Petrauskaitė, representatives of the Seimas, a party concerned,
as well as R. Klovas and E. Izokaitytė, representatives of the
Government, a party concerned, virtually reiterated the arguments
set forth in their written explanations and answered the
questions given by the justices of the Constitutional Court as
well as presented additional explanations.
The Constitutional Court
holds that:
I
1. Although the Vilnius Regional Administrative Court, the
petitioner, requests inter alia (petitions Nos. 1B-08/2007, 1B-
17/2007, and 1B-21/2008) to investigate as to whether Paragraph 6
(wording of 8 June 2006) of Article 22 of the Law on Territorial
Planning (wording of 15 January 2004 with subsequent amendments
and supplements) is not in conflict with the Constitution to the
extent that, according to the petitioner, it does not establish
that detailed plans, under which the main targeted purpose of
utilisation of land is converted from forestry land into land for
other purposes, where such conversion is provided for in general
plans as well as in special plans of a municipality or part
thereof, however it is obvious from the argumentation of the
petition and the material of the cases that it has doubts as to
whether Paragraph 6 (wording of 8 June 2006) of Article 22 of the
Law on Territorial Planning (wording of 15 January 2004 with
subsequent amendments and supplements) is not in conflict with
the Constitution to the extent that, according to the petitioner,
it does not establish that detailed plans, under which the main
targeted purpose of utilisation of land is converted from
forestry land into land for other purposes meant for construction
of buildings, are drafted, where such conversion is provided for
in general plans as well as in special plans of a municipality or
part thereof.
2. Although the Vilnius Regional Administrative Court, the
petitioner, requests inter alia (petitions Nos. 1B-08/2007, 1B-
17/2007, and 1B-21/2008) to investigate as to whether Item 7.2
(wording of 15 January 2004) of the Schedule approved by
Government resolution No. 635 of 26 May 2004 to the extent that,
according to the petitioner, it does not define that the rights
and obligations of the organiser of detailed territorial planning
may be transferred and the contract may be concluded, as well as
the main targeted land utilisation purpose may be converted from
forestry land into land for other purposesconstruction of
buildings or development of other activitywhere such conversion
is provided for in general plans as well as in special plans of a
municipality or part thereof (cities, towns), is not in conflict
with the Constitution and laws (articles and paragraphs thereof),
however it is obvious from the argumentation of the petitions and
the material of the cases that it has doubts as to whether Item
7.2 (wording of 15 January 2007) of the Schedule is not in
conflict with the Constitution and the laws (articles and
paragraphs thereof) to the extent that, according to the
petitioner, the Schedule does not establish that the rights and
obligations of the organiser of detailed territorial planning may
be transferred and the contract may be concluded, as well as the
main targeted land utilisation purpose may be converted from
forestry land into land for other purposesconstruction of
buildingswhere such conversion is provided for in general plans
as well as in special plans of a municipality or part thereof.
3. The Vilnius Regional Administrative Court, the
petitioner, requests inter alia (petitions Nos. 1B-08/2007, 1B-
17/2007, and 1B-21/2008) to investigate as to whether Item 7.4 of
the Procedure approved by Item 1 of Government resolution No. 641
of 9 May 2002, which provides: "7.4. In the forests of groups III
and IV, which are not listed in Items 7.1 and 7.2 of the
Procedure, forest land may be converted into other landed
property even in the absence of general plans of the territory of
a municipality or parts of the territory of a municipality,
drafted and approved upon the procedure defined in the Republic
of Lithuania Law on Territorial Planning, or in the absence of
special documents on planningprojects of forest management;",
was not in conflict with the Constitution and laws (articles and
paragraphs thereof).
It should be noted that on 27 February 2007, the Government
adopted Resolution No. 238 "On Amendment of Resolution of the
Government or the Republic of Lithuania No. 641 'On Approval of
the Procedure for Converting Forest Land into Other Landed
Property' of 9 May 2002" (hereinafter also referred to as
Government resolution No. 238 of 27 February 2007) (which came
into force on 11 March 2007), in Item 1 of which it decided to
amend Government resolution No. 641 of 9 May 2002 and to set it
forth in a new wording; alongside, the title of the legal act,
which was approved by this resolution, was amended and it was
given the following title: The Schedule of Procedure for
Converting Forest Land into Other Landed Property (hereinafter
referred to as the Schedule of Procedure). In Item 6.3 of the
Schedule of Procedure (wording of 27 February 2007) it was inter
alia established: "6.3. <...> In the forests of groups III and
IV, which are not listed in Items 6.1 and 6.2 of the Schedule,
forest land may be converted into other landed property where
this is provided for in the general plans of the territory of a
municipality or parts of the territory of a municipality, which
are drafted and approved upon the procedure defined in the
Republic of Lithuania Law on Territorial Planning. <...>;".
Having compared the legal regulation which is set forth in
Item 7.4 of the Procedure with the one set forth in Item 6.3 of
the Schedule of Procedure (wording of 27 February 2007), one can
notice that it became different in essence: according to the
previous legal regulation established in Item 7.4, it was allowed
to convert forest land into other landed property even in the
absence of general plans of the territory of a municipality or
parts of the territory of a municipality, which are drafted and
approved upon the procedure defined in the Law on Territorial
Planning, or in the absence of special documents on planning
projects of forest management. Meanwhile pursuant to the legal
regulation which is set forth in Item 6.3, it may be done only in
the event that this is provided for in the general plans of the
territory of a municipality or parts of the territory of a
municipality, which are drafted and approved upon the procedure
defined in the Law on Territorial Planning.
Thus the provision of Item 7.4 of the Procedure approved by
Item 1 of Government resolution No. 641 of 9 May 2002 is not
valid at present.
Pursuant to Paragraph 4 of Article 69 of the Law on the
Constitutional Court, the annulment of the disputed legal act
shall be grounds to adopt a decision to dismiss the instituted
legal proceedings. The Constitutional Court has held that this
can be said also about the situations, when the disputed legal
act (part thereof) was not repealed, however, the legal
regulation established in it was changed (Constitutional Court
ruling of 4 March 2003, decisions of 14 March 2006 (cases Nos.
3/05 and 14/03), rulings of 30 March 2006, 14 April 2006 and 21
September 2006, as well as decision of 28 May 2007)
However, as it was held in the jurisprudence of the
Constitutional Court more than once, when a court investigating a
case applies to the Constitutional Court after it has doubts
concerning the compliance of a law or other legal act applicable
in the case with the Constitution (other legal act of higher
power), the Constitutional Court has a duty to investigate the
request of the court regardless of the fact whether the disputed
law or other legal act is valid or not.
4. The petitioner requests inter alia to investigate, as to
whether Item 7.2 (wording of 15 January 2007) of the Schedule
approved by Government resolution No. 635 of 26 May 2004, to the
indicated extent is not in conflict (petitions Nos. 1B-08/2007,
1B-17/2007), and whether Item 7.4 of the Procedure approved by
Item 1 of Government resolution No. 641 of 9 May 2002, was not in
conflict (petitions Nos. 1B-08/2007, 1B-17/2007 and 1B-21/2008)
with Paragraph 4 (wording of 8 June 2006) of Article 24 of the
Law on Territorial Planning (wording of 15 January 2004 with
subsequent amendments and supplements), however it is obvious
from the argumentation of the petitions and the material of the
cases that it has doubts concerning the compliance of Item 7.2 of
the Schedule (wording of 15 January 2007) to the indicated
extent, and of Item 7.4 of the Procedure with not entire
Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law on
Territorial Planning (wording of 15 January 2004 with subsequent
amendments and supplements), but solely with the provision of
this paragraph "Detailed plans may not be drafted in the event
that the objectives of planning are in conflict with the
requirements of laws and other legal acts".
5. Thus in this constitutional justice case the Vilnius
Regional Administrative Court, the petitioner, has doubts as to
whether:
- Paragraph 6 (wording of 8 June 2006) of Article 22 of the
Law on Territorial Planning (wording of 15 January 2004 with
subsequent amendments and supplements) to the extent that,
according to the petitioner, it does not establish that detailed
plans, under which the main targeted purpose of utilisation of
land is converted from forestry land into land for other purposes
intended for construction, are drafted, where such conversion is
provided for in general plans as well as in special plans of a
municipality or part thereof, is not in conflict with Paragraph 3
of Article 46 and Paragraph 1 of Article 54 of the Constitution
and the constitutional principle of a state under the rule of law
(petitions Nos. 1B-08/2007, 1B-17/2007 and 1B-21/2008),
- Item 7.2 (wording of 15 January 2007) of the Schedule
approved by Government resolution No. 635 of 26 May 2004, to the
extent that, according to the petitioner, it does not establish
that the rights and obligations of the organiser of detailed
territorial planning may be transferred and the contract may be
concluded, as well as the main targeted purpose of utilisation of
land may be converted from forestry land into land for other
purposes meant for construction of buildings, if such conversion
is provided for in general plans as well as special plans of a
municipality or part thereof, is not in conflict with Paragraph 3
of Article 46, Paragraph 1 of Article 54 of the Constitution, the
constitutional principle of a state under the rule of law, the
provision "Detailed plans may not be drafted in the event that
the objectives of planning are in conflict with the requirements
of laws and other legal acts" of Paragraph 4 (wording of 8 June
2006) of Article 24 of the Law on Territorial Planning (wording
of 15 January 2004 with subsequent amendments and supplements),
as well as Paragraph 1 of Article 11 of the Law on Forests
(wording of 10 April 2001) (petitions Nos. 1B-08/2007 and 1B-17/
2007).
- Item 7.4 of the Procedure approved by Item 1 of Government
resolution No. 641 of 9 May 2002 was not in conflict with Article
54 of the Constitution, the constitutional principle of a state
under the rule of law, Paragraph 1 of Article 11 of the Law on
Forests (wording of 10 April 2001), the provision "Detailed plans
may not be drafted in the event that the objectives of planning
are in conflict with the requirements of laws and other legal
acts" of Paragraph 4 (wording of 8 June 2006) of Article 24 and
Paragraph 3 (wording of 8 June 2006) of Article 26 of the Law on
Territorial Planning (wording of 15 January 2004 with subsequent
amendments and supplements) (petitions Nos. 1B-08/2007, 1B-17/
2007 and 1B-21/2008).
II
1. On 12 December 1995, the Seimas adopted the Law of
Territorial Planning which came into force on 1 January 1996.
This law regulated planning of territories of the Republic of
Lithuania as well as inter-relations of private persons, legal
persons and state institutions in this process (Article 1).
Pursuant to Article 16 of the Law of Territorial Planning
(wording of 12 December 1995), organisers of detailed planning
where: 1) owners of land, 2) users of land, 3) possessors of
state-owned land, 4) municipal boards (mayors). According to
Paragraph 2 of Article 17 of this law, the owners, possessors and
users of land holdings and forest holdings or owners of their
groups, as well as municipalities (according to the functional
purpose of lots) had to draft detailed plans only when the
intended activity was inter alia construction, reconstruction or
demolition, converting of the main targeted purpose of
utilisation of land, establishment or converting of building-up
regime, and that of the purpose of buildings or constructions.
In this context it should be noted that Paragraph 3 of
Article 5 of the Law on Land (wording of 26 April 1994)
established that, according to the main targeted purpose of land
utilisation, the stock of land of the Republic of Lithuania
consisted of inter alia land for agricultural purposes, land for
forestry purposes, and land for other purposes. Later the Law on
Land (wording of 26 April 1994) has been amended and/or
supplemented more than once, however, the legal regulation,
according to which the stock of land of the Republic of Lithuania
consisted of inter alia land for agricultural purposes, land for
forestry purposes, and land for other purposes, remained
unchanged.
2. Thus, pursuant to the legal regulation established in the
Law on Territorial Planning (wording of 12 December 1995 with
subsequent amendments and supplements), which was effective till
1 May 2004:
- the conditions of drafting detailed plans, when the main
targeted purpose of land utilisation was changed, were the same
for the land of any targeted purpose of utilisation;
- when the main targeted purpose of land utilisation (inter
alia of land for agriculture and forestry) was converted (inter
alia into land for other purposesconstruction of buildings), it
was the owners of the land, the users of the land, the possessors
of the state-owned land, and the municipal boards (mayors) who
were organisers of detailed planning. According to the legal
regulation, that was effective at that moment, it was not
provided that contracts are concluded on transfer of rights and
obligations of the organiser of detailed territorial planning.
3. The Law on Territorial Planning (wording of 12 December
1995) was amended and supplemented more than once, inter alia
Paragraph 2 of Article 17 of the Law on Territorial Planning was
amended and set forth in a new wording by Paragraph 1 of Article
5 of the Republic of Lithuania Law on Amending and Supplementing
Articles 2, 4, 9, 14, 17, 20, 21, 22, 23, 24, 26 and 32 of the
Law on Territorial Planning which was adopted by the Seimas on 12
October 2000 (it came into force on 31 October 2000), however,
the legal regulation remained unchanged in the aspect that when
the main targeted purpose of land utilisation was converted,
conditions of drafting detailed plans were the same for the land
of any designation; when the main targeted purpose of land
utilisation (inter alia of land for agriculture and forestry) was
converted (inter alia into land for other purposesconstruction
of buildings), it was the owners of the land, the users of the
land, the possessors of the state-owned land, and the municipal
boards (mayors) who were organisers of detailed planning.
4. On 15 January 2004, the Seimas adopted the Republic of
Lithuania Law on Amending the Law on Territorial Planning, which
came into force (except Articles 2 and 3 thereof) as from 1 May
2004 (Article 4 of the law). By Article 1 of the law, the Law on
Territorial Planning (wording of 12 December 1995 with subsequent
amendments and supplements) was set forth in a new wording, and
Article 3 provided that "municipalities <...> draft general plans
of the territories of municipalities or parts thereof till 31
December 2007".
According to Article 20 of the Law on Territorial Planning
(wording of 15 January 2004 with subsequent amendments and
supplements), it is the director of the administration of a
municipality and the possessors of state-owned land who are the
organisers of detailed territorial planning (Paragraph 1); upon
the procedure defined by the Government, and in the cases and
under conditions defined by the latter, municipality could
conclude a contract on transfer of rights and obligations of the
organiser of the detailed planning to the owner, possessor or
user of land (Paragraph 2). Under Paragraph 1 of Article 22 of
this law, detail plans were inter alia drafted: when the main
targeted purpose of utilisation of land was converted into that
of construction of buildings
5. In the context of the constitutional justice case at
issue, having compared the legal regulation which is established
in the Law on Territorial Planning (wording of 15 January 2004)
with the one established in the Law on Territorial Planning
(wording of 12 December 1995 with subsequent amendments and
supplements made till 1 May 2004), it becomes obvious that:
- the conditions of drafting of the detailed plans, when
converting the main targeted purpose of land utilisation, were
the same for the land of any purpose;
- the legal regulation changed in the way, so that it did
not provide that land users are the organisers of detailed
planning, it was established that the director of the
administration of a municipality instead the municipal board
(mayor) becomes the organiser of the detailed planning;
- the Law on Territorial Planning (wording of 15 January
2004) already consolidated an opportunity to conclude a contract
on transfer of rights and obligations of the organiser of
detailed territorial planning.
6. On 28 September 2004, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 4, 12, 15,
22 and 24 of the Law on Territorial Planning, which came into
force on 16 October 2004.
By Article 2 of Paragraph 4 of this law amendments were made
to Paragraph 6 of Article 22 "Drafting of Detailed Plans" of the
Law on Territorial Planning (wording of 15 January 2004 with
subsequent amendments and supplements) and it was set forth as
follows:
"6. The detailed plans that convert the main targeted
purpose of land utilisation from land for agricultural purposes
into land for other purposes shall be drafted if such conversion
is provided for in the general plans as well as in special plans
of a municipality or part thereof. In the event that general or
special plans have not been drafted, only the director of the
administration of a municipality or the possessor of the state-
owned land may be the organiser of drafting of the detailed
plans."
In this context it should be mentioned that at the time when
Paragraph 6 (wording of 28 September 2004) of Article 22 of the
Law on Territorial Planning (wording of 15 January 2004 with
subsequent amendments and supplements) came into force, according
to Article 20 of this law, as already mentioned, the director of
the administration of a municipality or the possessor of the
state-owned land were the organisers of drafting of the detailed
plans (Paragraph 1); upon the procedure, in the events and under
conditions defined by the Government, the municipality could
conclude a contract on transfer of rights and obligations of the
organiser of detailed territorial planning to the owner,
possessor or user of the land (Paragraph 2); according to
Paragraph 1 of Article 22 of this law, detailed plans were inter
alia drafted, when the main targeted purpose of land utilisation
was converted into land for construction of buildings (Item 3);
according to Paragraph 1 (wording of 28 September 2004) of
Article 24, drafting of detailed plans when forming land lots for
blocks or groups of residential houses (more than 3 residential
houses) was only possible when this was provided for in the
general plans of the territory of a municipality or part thereof,
or in special plans of protected territories or their zones, and
arrangement of residential territories.
7. In the context of the constitutional justice case at
issue, when construing the legal regulation established in
Paragraph 6 (wording of 28 September 2004) of Article 22 of the
Law on Territorial Planning (wording of 15 January 2004 with
subsequent amendments and supplements), together with the one
established in Paragraph 1 (wording of 15 January 2004) of
Article 22 of the same law, it should be noted that this legal
regulation is related to drafting of the detailed plans by which
the main targeted purpose of land utilisation is converted from
agricultural land into land for other purposes (inter alia
construction of buildings) is changed:
- when converting the main targeted purpose of land
utilisation, if such conversion from agricultural land (as well
as from land for any other purpose) to land for other purposes
(inter alia for construction of buildings) was provided for in
the general plans as well as in special plans of a municipality
or part thereof, it was the director of the administration of a
municipality and the possessors of state-owned land who were the
organisers of detailed planning. The municipality, upon the
procedure, in the cases and under conditions established by the
Government, could conclude a contract on transfer of rights and
obligations of the organiser of detailed territorial planning to
the owner, possessor or user of the land;
- when converting the main targeted purpose of utilisation
of land from agricultural land into land for other purposes
(inter alia construction of buildings) in the event that general
or special plans of a municipality have not been drafted, it was
only the director of the administration of a municipality or the
possessor of state-owned land who could become the organisers of
detailed planning;
- drafting of detailed plans when forming land lots for
blocks or groups (more than 3 residential houses) of residential
houses was only possible when this was provided for in the
general plans of the territory of a municipality or part thereof,
as well as in special plans of protected territories or their
zones, and arrangement of residential territories.
8. On 8 June 2006, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 1, 2, 7, 10,
12, 15, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32,
34, 35 and 36 of the Law on Territorial Planning, which came into
force on 13 June 2006. By Paragraph 2 of Article 11 of this law
one amended Paragraph 6 (wording of 28 September 2004) of Article
22 of the Law on Territorial Planning (wording of 15 January 2004
with subsequent amendments and supplements) and set it fort in a
new wording. Paragraph 6 (wording of 8 June 2006) of Article 22
"Drafting of Detailed Plans" of the said law, to the indicated
extent is disputed by the petitioner, provides:
"6. The detailed plans, which convert the main targeted
purpose of land utilisation from agricultural land into land for
other purposes shall be drafted if such conversion is provided
for in the general plans as well as in special plans of a
municipality or part thereof. In the event that general or
special plans have not been drafted it is only the director of
the administration of a municipality or the possessor of the
state-owned land, who may be the organiser of drafting of the
detailed plans. Where the possessor or user of land intends to
convert the main targeted purpose of land utilisation from
agricultural land into land for other purposes, in which
construction of important objects of municipal infrastructure
(except residential houses) is planned, by 31 December 2007, when
general plans of the territories of municipalities or parts
thereof (cities, towns) must be drafted, the director of the
administration of a municipality, in the presence of a decision
of the municipal council and consent of the chief of the county,
upon the procedure defined by the Government concludes a contract
on transfer of rights and obligations of the organiser of
detailed territorial planning to the possessor or user of the
land."
In the context of the constitutional justice case at issue
it should be noted that it becomes obvious from both Article 3 of
the aforementioned Law on Amending the Law on Territorial
Planning and Paragraph 6 (wording of 8 June 2006) of Article 22
of the Law on Territorial Planning (wording of 15 January 2004
with subsequent amendments and supplements) that general plans of
the territories of municipalities and parts thereof (towns and
cities) had to be drafted by 31 December 2007.
Having compared the legal regulation established in
Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on
Territorial Planning with the one established in Paragraph 6
(wording of 28 September 2004) of Article 22 of the said law, it
becomes obvious that Paragraph 6 (wording of 28 September 2004)
of Article 22 of this law was supplemented with a new provision,
according to which the director of the administration of a
municipality, upon the procedure established by the Government,
could conclude a contract on transfer of rights and obligations
of the organiser of detailed territorial planning to the
possessor or user of the land, if a decision of the municipal
council was adopted on such transfer of rights and obligations
and the chief of the county gave his consent. Such rights and
obligations could be transferred only in the event that the
possessor or user of the land decided to convert the main
targeted purpose of land utilisation from agricultural land into
land for other purposes (inter alia for construction of
buildings), in which it was planned to build significant objects
of municipal infrastructure (except residential houses), by 31
December 2007, when general plans of the territories of
municipalities or parts thereof (cities, towns) had to be
drafted.
Article 22 (wording of 8 June 2006) of the Law on
Territorial Planning was amended, however, its Paragraph 6 has
not been amended and/or supplemented.
9. It has been mentioned that the petitioner disputes the
compliance of Paragraph 6 (wording of 8 June 2006) of Article 22
of the Law on Territorial Planning (wording of 15 January 2004
with subsequent amendments and supplements) with the Constitution
to the extent that, according to the petitioner, this paragraph
does not establish that the detailed plans converting the main
targeted purpose of land utilisation from forestry land into land
for other purposesconstruction of buildingsare drafted, if such
conversion is provided for in the general plans as well as in
special plans of the municipality or part thereof. According to
the petitioner, such legal regulation is in conflict with the
Constitution, since forestry land enjoys less protection than
agricultural land.
It should be noted that the relations linked to the
conversion of the main targeted purpose of land utilisation are
regulated not only by the Law on Territorial Planning, but inter
alia by the Law on Land and the Law on Forests, as well.
10. In the context of the constitutional case at issue the
following provisions of the Law on Land (wording of 27 January
2004) are to be mentioned:
- according to Item 10 of Article 2, landed property is
areas of land differing from other areas by their characteristic
natural properties or peculiarities of economic utilisation;
- Paragraph 2 of Article 3 provides that, according to the
main targeted land utilisation purpose, the stock of land of the
Republic of Lithuania consists of: 1) land for agricultural
purposes, 2) land for forestry purposes, 3) land for conservation
purposes, and 4) land for other purposes;
- according to Article 24, the main targeted purpose of land
utilisation shall be set upon the procedure defined by the
Government when forming new land lots; the main targeted purpose
of land utilisation established for such land lots shall be
converted upon application of owners of land, trustees of state-
owned land or other entities in cases defined in the laws, in
line with detailed or special documents on territorial planning
(Paragraph 1); land owners may utilise the land for the purpose
other than established at the moment of acquisition of the land
into their ownership only in the event that the chief of the
county adopts a decision to convert the main targeted purpose of
land utilisation (Paragraph 2).
11. Summing up the aforementioned provisions of the Law on
Land (wording of 27 January 2004 with subsequent amendments and/
or supplements) in the context of the constitutional justice case
at issue, it should be held that, according to the main targeted
purpose of land utilisation the stock of land of the Republic of
Lithuania consists of inter alia land for agricultural purposes,
land for forestry purposes and land for other purposes; the
established main targeted purpose of land utilisation is
converted according to detailed or special documents of
territorial planning.
In this context it should be noted that, according to
Paragraph 4 of Article 26 of the Law on Land (wording of 27
January 2004 with subsequent amendments and/or supplements)
reforestation in land for forestry purposes, as well as
protection and utilisation of forest resources, is established by
the Law on Forests.
12. In the context of the constitutional justice case at
issue one should note the following provisions of the Law on
Forests (wording of 10 April 2001 with subsequent amendments
and/or supplements):
- the purpose of the Law on Forests (wording of 10 April
2001) is to regulate reforestation, protection and utilisation,
and to create legal preconditions for administering forests of
all forms of ownership according to unified principles of stable
and well-balanced forestry, by ensuring rational utilisation of
forest resources when supplying industry with raw material,
preservation of biological variety, increase of productivity of
forests, stability of landscape and quality of environment,
possibility to perform ecological, economic and social functions
at present and in the future without harm to other eco-systems
(Article 1);
- forest is a tract of land the area of which is not less
than 0.1 ha, covered by trees, the adult height of which in their
growth place reaches not less than 5 meters, other forest
vegetation, including sparse area or area that lost vegetation
due to human activity or natural causes (cutting areas, burned
areas, clearings). Clusters of trees in fields, by roadsides,
water bodies, within towns and rural settlements, a well as
cemeteries, narrowup to 10 metres in widthtree belts, hedges,
single trees and shrubs, as well as parks planted by man, which
are situated within towns and rural settlements, shall not be
considered as forest. The procedure of care, protection and
utilisation of the said planted areas shall be established by the
Ministry of Environment (Paragraph 1 of Article 2);
- forest land is land covered with forest (stands) or not
covered with forest (cutting areas, perished stands, forest
clearings, arboreta, nurseries, forest seed plantations, as well
as raw shrubbery and plantations). Also to be rated as forest
land are forest roads, forest compartment lines, technological
and fire-prevention belts, piling places and areas taken up by
facilities related to forest, rest spots, points for feeding wild
animals, as well as land allocated for afforestation (Paragraph 3
of Article 2);
- according to the purposes of forestry, the regime of
forestry and the main functional mission, forests were and are
divided into forest reservations (I group), special purpose
forests (ecosystem preserving forests and recreational forests)
(II group), protective forests (III group), as well as commercial
forests (IV group) (Article 3 (wordings of 10 April 2001 and 26
June 2007));
- forest land may be converted into other landed property
only in exceptional cases, striking a balance between the
interests of the state, the forest owner and society, and in the
manner prescribed by the Government (Paragraph 1 of Article 11);
forest cutting to meet technological and production needs for
forestry (to establish seed-plots, to build roads related to
forestry, to construct fire prevention-belts, technological
strips, recreation areas and timber landings, in the established
manner to dig gravel and sand for economic needs, etc.) shall not
be considered as forest land conversion (Paragraph 2 of Article
11).
13. Summing up the said provisions entrenched in the Law on
Forests (wording of 10 April 2001 with subsequent amendments
and/or supplements), the following conclusions are to be made:
- the Law on Forests (wording of 10 April 2001 with
subsequent amendments and/or supplements) establishes what landed
property is recognised as forest land;
- according to the purposes of forestry, the regime of
forestry and the main functional mission were and are divided
into reservation forest (I group), special purpose forests
(ecosystem preserving forests and recreational forests) (II
group), protective forests (III group), as well as commercial
forests (IV group);
- Paragraph 1 of Article 11 of the Law on Forests (wording
of 10 April 2001) consolidates two provisions: first, forest land
may be converted into other landed property only in exceptional
cases; second, when transferring forest land into other landed
property, a balance should be kept between the interests of the
state, the forest owner and society, and this should be done upon
the procedure established by the Government;
- having established the legal regulation both in Paragraph
1 of Article 11 of the Law on Forests (wording of 10 April 2001)
and in other articles of this law, one does not set the cases of
converting forest land into other landed property that should be
treated as exceptional or/and the criteria, according to which
such cases would be defined.
14. On 9 May 2002, the Government adopted Resolution No. 641
"On Approval of the Procedure for Converting Forest Land into
Other Landed Property", which came into force on 15 May 2002, by
Item 1 of which it approved the Procedure for Converting Forest
Land into Other Landed Property, the compliance of Item 7.4 of
which with the Constitution and the laws is disputed by the
petitioner in this constitutional justice case.
14.1. Pursuant to Item 1 of the Procedure, forest land could
be transferred into other landed property only in exceptional
cases, striking a balance between the interests of the state, the
forest owner and society; these interests are balanced when
drafting documents on territorial planning and in the course of
conducting the public discussion upon the procedure set forth in
Government Resolution No. 1079 "On Approval of Regulations
Related to Discussing with the Society Draft Documents on
Territorial Planning" of 18 September 1996.
On 18 September 1996, the Government adopted Resolution No.
1079 "On Approval of the Regulations Related to Discussing About
Draft Documents on Territorial Planning with Society", which came
into force on 26 September 1996, by Item 1 whereof it approved
the Regulations Related to Discussing About Draft Documents on
Territorial Planning with Society (hereinafter referred to as the
Regulations). In the context of the constitutional case at issue
it should be noted that, according to the Regulations, a public
discussion, inter alia coordination, had to be conducted upon the
procedure established in the Regulations, while following the
principle of publicity of drafting documents on planning. The
Regulations have been amended more than once, however, the said
provision remained unchanged.
14.2. Item 7 of the Procedure approved by Item 1 of
Government resolution No. 641 of 9 May 2002, inter alia
established:
"7. Forest land shall be transferred into other landed
property and the main targeted purpose of utilisation of forest
land shall be converted according to the following requirements:
7.1. it shall be prohibited to transfer forest land into
other landed property in the forests of group I, those of group
IIecosystem preserving forests, those of group IIIforests of
reservations and other forests, located within one kilometre from
the Baltic Sea and Curonian Lagoon, the coastal protection zones
of surface water bodies, sub-zones of physical protection of
objects of heritage;
7.2. in the forests of group IIrecreation forestsas well
as forests of group III and IV which are located in the preserved
territories that are not listed in Item 7.1. of the procedure,
one may convert forest land into other landed property only for
the purposes related to protection, care and recreational
utilisation of the preserved territories, if this is provided for
in the documents on planning of the preserved territories;
7.3. in the forests of group IIrecreation forestsnot
listed in Items 7.1 and 7.2 of the Procedure, forest land may be
converted into other landed property if this is provided for in
the general plans of the territory of a municipality or parts of
the territory of a municipality or special documents on
planningprojects of forest or land managementwhich are drafted
and approved upon the procedure established in the Republic of
Lithuania Law on Territorial Planning;
7.4. in the forests of groups III and IV, which are not
listed in Items 7.1 and 7.2 of the Procedure, forest land may be
converted into other landed property even in the absence of
general plans of the territory of a municipality or parts of the
territory of a municipality or special documents on planning
projects of forest or land managementwhich are drafted and
approved upon the procedure established in the Republic of
Lithuania Law on Territorial Planning;
7.5. forest land may be converted into other landed property
only when documents on territorial planning, as listed in Items
7.2 and 7.3 of the Procedure (if any are necessary), are approved
and detailed plans are drafted and <
> approved upon the
established procedure."
14.3. According to Item 8 of the Procedure, priority in the
course of converting to other landed property is given to the
forest land, which is not covered with forest (clearings,
perished stands, cutting areas), as well as areas covered with
stands comprising soft deciduous trees that are of low efficiency
and are damaged by natural disaster or are sparse due to other
reasons; in all cases one had to take account of the importance
of forest in view of environment protection.
15. Summing up the provisions of the Regulations approved by
Government resolution No. 1079 of 18 September 1996, and the
Procedure approved by Item 1 of Government resolution No. 641 of
9 May 2002, the following conclusions are to be made:
- pursuant to the Regulations (wording of 18 September 1996
with subsequent amendments) approved by Government resolution No.
1079 of 18 September 1996, the public discussion, inter alia
coordination, had to be conducted upon the procedure established
in the Regulations and in line with the principle of publicity of
drafting the documents on territorial planning;
- Item 7.4 of the Procedure approved by Item 1 of Government
resolution No. 641 of 9 May 2002, established the legal
regulation, according to which forest land located in forests of
group III (protective forests), where these forests were not
considered to be forests of reservations and other forests,
located within one kilometre from the Baltic Sea and Curonian
Lagoon, the coastal protection zones of surface water bodies,
sub-zones of physical protection of objects of heritage, as well
as in the forests of group III (protection forests) and group IV
(economic forests) and provided these forests were not situated
in preserved territories, could be converted into other landed
property even in the absence of general plans of the territory of
a municipality or parts of the territory of a municipality or
special documents on planningprojects of forest managementwhich
were drafted and approved upon the procedure established in the
Law on Territorial Planning.
16. In the context of the constitutional justice case at
issue the following provisions of the Law on Territorial Planning
(wording of 15 January 2004 with subsequent amendments and
supplements) were mentioned:
- a general plan is a document of complex planning of
territories, in which, having considered the levels and tasks of
territorial planning, one establishes the spatial concept of
development of the territory to be planned and principles of
utilisation and protection of the territory (Paragraph 1 of
Article 2 (wording of 8 June 2006));
- documents of general planning of territories are: 1)
general (master) plan of the territory of the state; 2) general
(master) plan of the territory of a county, 3) general plan of
the territory of a municipality, 4) general plan of the territory
of a part of a municipality (city or town) (Paragraph 2 of
Article 9). General plans are compulsory to all owners,
possessors or users of real estate located within the territory
subject to planning (Paragraph 2 of Article 9);
- a special plan (project) is a document of territorial
planning, which, having taken into account the levels and
objectives of territorial planning, sets forth the trends,
measures and requirements of the development, infrastructure
management and/or protection of the territories that are
necessary for individual spheres of activity (Paragraph 27 of
Article 2 (wording of 8 June 2006));
- objects of special planning inter alia comprise land for
agricultural purposes and forest land (Paragraph 1 of Article
13);
- according to Paragraph 1 (wording of 8 June 2006) of
Article 15, documents of special territorial planning comprise
inter alia schemes of forest management;
- a detailed plan is a document on territorial planning,
which sets forth boundaries of land lots, the regime of
management and utilisation of territory (compulsory conditions
for construction and other activity) (Paragraph 3 of Article 2
(wording of 8 June 2006));
- objects of detailed territorial planning are as follows:
1) parts of territories of cities, towns, 2) territories of
villages, 3) a land lot and groups of lots (Paragraph 1 of
Article 19);
- as mentioned, according to Paragraph 1 of Article 20, the
organisers of detailed territorial planning are the director of
the administration of a municipality and possessors of state-
owned land, and, according to Paragraph 2 (wording of 8 June
2006) of the same article, a municipality, upon the procedure, in
cases and under conditions established by the Government, may
conclude a contract on transfer of rights and obligations of the
organiser of detailed territorial planning to the possessor or
user of the land lot;
- as mentioned, according to Paragraph 1 of Article 22,
detailed plans are inter alia drafted when the main targeted
purpose of utilisation of land is converted into land for
construction of buildings (Item 3);
- one may draft detailed plans in the course of forming land
lots for contraction of residential houses and building or
constructions meant for other purposes only in the event that
construction is provided for in general plans of the territory of
a municipality or part thereof or in special plans of arrangement
of preserved territories or their zones, preserved objects of
heritage, as well as residential and other territories. Where
general plans are not drafted by 31 December 2007, when general
plans of the territories of municipalities and parts thereof
(cities, towns) must be ready, it is permitted to draft detailed
plans for construction of important objects of municipal
infrastructure (except residential houses) under decision of the
municipal council and upon the consent of the head of the county
(Paragraph 1 (wording of 8 June 2006) of Article 24);
- detailed plans inter alia may not be drafted if the
objectives of planning are in conflict with requirements of laws
and other legal acts (Paragraph 4 (wording of 8 June 2006) of
Article 24);
- solutions of the detailed plan must not be in conflict
with special requirements on land utilisation, which are set
forth in the laws, Government resolutions, valid solutions of
general plans of the territory of a municipality and its parts,
as well as special plans (except land management projects under
land reform, the solutions of which are replaced by the detailed
plans), and other legal acts (Paragraph 3 (wording of 8 June
2006) of Article 26).
17. To sum up the indicated provisions of the Law on
Territorial Planning (wording of 15 January 2004 with subsequent
amendments and supplements), in the context of the constitutional
justice case at issue the following conclusions are to be made:
- this law regulates the relations linked to drafting
detailed plans, inter alia when the main targeted purpose of land
utilisation is converted into land for other purposes
construction of buildings; it sets forth conditions for drafting
such detailed plans and cases, where municipality may conclude a
contract on transfer of rights and obligations of the organiser
of detailed territorial planning to the owner, possessor or user
of the land;
- detailed plans, inter alia when the main targeted purpose
of land utilisation is converted into land for other purposes
construction of buildingsinter alia may not be drafted: if
construction is not provided for in general plans of the
territory of a municipality or part thereof, or in special plans
of arrangement of preserved territories or their zones, preserved
objects of heritage, as well as residential and other territories
(except cases, where, under a decision of the municipal council
and upon the consent of the chief of the county, one could draft
detailed plans for construction of important objects of municipal
infrastructure (except residential houses), if general plans have
not been drafted by 31 December 2007); if the objectives of
planning are in conflict with requirements of laws and other
legal acts;
- in the Law on Territorial Planning (wording of 15 January
2004 with subsequent amendments and supplements), in the course
of regulating the relations where the main targeted purpose of
land utilisation is converted into land for other purposes (inter
alia for construction of buildings), alongside with general legal
regulation, Paragraph 6 (wording of 8 June 2006) of Article 22 of
this law establishes a separate, special legal regulation
designated for drafting detailed plans under which the main
targeted purpose of land utilisation is converted from
agricultural land into land for other purposes (inter alia for
construction of buildings); moreover, it establishes as to who
may become the organiser of detailed territorial planning, in
what cases and under what conditions in the course of drafting
the aforementioned detailed plans one may conclude a contract on
transfer of the rights and obligations of the organiser of
detailed territorial planning to the possessor or user of the
land lots.
18. Having assessed the legal regulation entrenched in the
provisions of the Law on Land (wording of 27 January 2004 with
subsequent amendments and/or supplements), the Law on Territorial
Planning (wording of 15 January 2004 with subsequent amendments
and supplements), and the Law on Forests (wording of 10 April
2001 with subsequent amendments and supplements), in the context
of the constitutional justice case at issue one is to draw the
following conclusions.
18.1. In the Law on Territorial Planning (wording of 15
January 2004 with subsequent amendments and supplements), when
regulating relations where the main targeted purpose of land
utilisation is converted into land for other purposes (inter alia
for construction of buildings), alongside with general legal
regulation, Paragraph 6 (wording of 8 June 2006) of Article 22 of
this law establishes a separate, special legal regulation,
designated for drafting detailed plans, under which the main
targeted purpose of land utilisation is converted from land for
agricultural purposes into land for other purposes (inter alia
for construction of buildings); moreover, it establishes as to
who may become the organiser of detailed territorial planning, in
what cases and under what conditions in the course of drafting
the aforementioned detailed plans one may conclude a contract on
transfer of the rights and obligations of the organiser of
detailed territorial planning to the possessor or user of the
land lots.
18.2. The legal regulation establishing conditions of
converting the targeted purpose of land utilisation from forestry
land into land for other purposes (inter alia the land for other
purposesconstruction of buildings), are set forth not in
Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on
Territorial Planning (wording of 15 January 2004 with subsequent
amendments and supplements), but in other articles (parts
thereof) of this and other laws, inter alia in Paragraph 2 of
Article 20, Item 3 of Paragraph 1 of Article 22, Paragraph 1 of
Article 24 of the Law on Territorial Planning (wording of 15
January 2004 with subsequent amendments and supplements),
Paragraph 1 of Article 11 of the Law on Forests (wording of 10
April 2001 with subsequent amendments and/or supplements), and in
Paragraph 1 of Article 24 of the Law on Land (wording of 27
January 2004 with subsequent amendments and/or supplements).
III
On the compliance of Item 7.4 of the Procedure for
Converting Forest Land into Other Landed Property approved by
Item 1 of Government Resolution No. 641 "On Approval of the
Procedure for Converting Forest Land into Other Landed Property"
of 9 May 2002 with Article 54 of the Constitution, the
constitutional principle of a state under the rule of law,
Paragraph 1 of Article 11 of the Law on Forests (wording of 10
April 2001), the provision "Detailed plans may not be drafted in
the event that the objectives of planning are in conflict with
the requirements of laws and other legal acts" of Paragraph 4
(wording of 8 June 2006) of Article 24 and Paragraph 3 (wording
of 8 June 2006) of Article 26 of the Law on Territorial Planning
(wording of 15 January 2004 with subsequent amendments and
supplements).
1. It has been mentioned that, on 9 May 2002, the Government
adopted Resolution No. 641 "On Approval of the Procedure for
Converting Forest Land into Other Landed Property", which came
into force on 15 May 2002. By this resolution the Government,
while following Article 11 of the Law on Forests (wording of 10
April 2001), approved the procedure for converting forest land
into other landed property.
2. As mentioned, Item 7 of the Procedure inter alia
established:
"7. Forest land shall be transferred into other landed
property and the main targeted purpose of utilisation of forest
land shall be converted according to the following requirements:
7.1. it shall be prohibited to transfer forest land into
other landed property in the forests of group I, those of group
IIecosystem preserving forests, those of group IIIforests of
reservations and other forests, located within one kilometre from
the Baltic Sea and Curonian Lagoon, the coastal protection zones
of surface water bodies, sub-zones of physical protection of
objects of heritage;
7.2. in the forests of group IIrecreation forestsas well
as forests of group III and IV which are located in the preserved
territories that are not listed in Item 7.1. of the procedure,
one may convert forest land into other landed property only for
the purposes related to protection, care and recreational
utilisation of the preserved territories, if this is provided for
in the documents on planning of the preserved territories;
7.3. in the forests of group IIrecreation forestsnot
listed in Items 7.1 and 7.2 of the Procedure, forest land may be
converted into other landed property if this is provided for in
the general plans of the territory of a municipality or parts of
the territory of a municipality or special documents on
planningprojects of forest or land managementwhich are drafted
and approved upon the procedure established in the Republic of
Lithuania Law on Territorial Planning;
7.4. in the forests of groups III and IV, which are not
listed in Items 7.1 and 7.2 of the Procedure, forest land may be
converted into other landed property even in the absence of
general plans of the territory of a municipality or parts of the
territory of a municipality or special documents on planning
projects of forest or land managementwhich are drafted and
approved upon the procedure established in the Republic of
Lithuania Law on Territorial Planning;
7.5. forest land may be converted into other landed property
only when documents on territorial planning, as listed in Items
7.2 and 7.3 of the Procedure (if any are necessary), are approved
and detailed plans are drafted and <
> approved upon the
established procedure."
3. It has also been mentioned that Item 8 of the Procedure
inter alia established that priority in the course of converting
to other landed property is given to the forest land which is not
covered with forest (clearings, perished stands, cutting areas)
as well as areas covered with stands comprising soft deciduous
trees that are of low efficiency and are damaged by natural
disaster or are sparse due to other reasons; in all cases one had
to take account of the importance of forest in view of
environment protection.
4. In the context of the constitutional justice case at
issue it should be noted that, as already mentioned, in Item 7.4
of the Procedure approved by Item 1 of Government resolution No.
641 of 9 May 2002, the compliance of which with the Constitution
and the laws (articles and paragraphs thereof) is disputed by the
petitioner, one established the legal regulation according to
which the forest land located in the forests of group III
(protective forests), where these forests were not attributed to
forests of reservations and other forests located within one
kilometre from the Baltic Sea and Curonian Lagoon, the coastal
protection zones of surface water bodies, the sub-zones of
physical protection of objects of heritage, as well as the forest
land located in the forests of group III (protection forests) and
group IV (economic forests) and these forests were not situated
in the preserved territories, could be converted into other
landed property even in the absence of general plans of the
territory of a municipality or parts of the territory of a
municipality or special documents on planningprojects of forest
managementwhich were drafted and approved upon the procedure
established in the Law on Territorial Planning.
Thus, the Government established that the forest land
located in the forests of groups III and IV (save the indicated
exceptions) could be converted into other landed property even in
the absence of general plans of the territory of a municipality
or parts of the territory of a municipality or special documents
on planningprojects of forest managementwhich were drafted and
approved upon the procedure established in the Law on Territorial
Planning.
5. It has been mentioned that Government Resolution No. 641
"On Approval of the Procedure for Converting Forest Land into
Other Landed Property" of 9 May 2002 was adopted on the grounds
of Article 11 of the Law on Forests (wording of 10 April 2001),
inter alia Paragraph 1 thereof.
It has also been mentioned that the Vilnius Regional
Administrative Court, the petitioner, requests to investigate as
to whether Item 7.4 of the Procedure approved by Item 1 of
Government resolution No. 641 of 9 May 2002 was not in conflict
with the Constitution and the laws (articles and paragraphs
thereof), inter alia Paragraph 1 of Article 11 of the Law on
Forests (wording of 10 April 2001).
6. When examining, pursuant to the petitions of the Vilnius
Regional Administrative Court, the petitioner, whether the
disputed Item 7.4 of the Procedure approved by Item 1 of
Government resolution No. 641 of 9 May 2002 was not in conflict
with Paragraph 1 of Article 11 of the Law on Forests (wording of
10 April 2001), one must find out whether Paragraph 1 of Article
11 of the Law on Forests (wording of 10 April 2001) is not in
conflict with the Constitution.
7. The Constitutional Court has held that, while
administering justice, the court must follow 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, 16 January
2006, 27 June 2007, and 2 March 2009). 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 rulings of 16 January
2007, 27 June 2007 and 17 December 2007).
One of the major elements of the principle of a state under
the rule of law is a requirement not to apply a legal act that is
in conflict with a legal act of higher power.
8. Paragraph 1 of Article 11 of the Law on Forests (wording
of 10 April 2001) provides: "1. Forest land may be converted into
other landed property only in exceptional cases, striking a
balance between the interests of the state, the forest owner and
society, and in the manner prescribed by the Government."
By the aforementioned legal regulation, according to which
forest land may be converted into other landed property only in
exceptional cases, striking a balance between interests of the
state, the forest owner and society, and in the manner prescribed
by the Government, one strives, on the one hand, to ensure the
protection of the forest as a national valuable of universal
importance, and, on the other hand, preconditions are created to
restrict ownership rights of forest owners.
9. In its acts the Constitutional Court has held more than
once that Article 23 of the Constitution (inter alia Paragraphs 1
and 2 thereof) consolidates the inviolability and protection of
ownership; laws should protect the rights of ownership of all
owners, including the state (as the organisation of the entire
society) and municipalities.
Moreover, the Constitutional Court has held more than once
that ownership performs a social function as well, and that
ownership includes obligations.
The Constitutional Court has held also that, under the
Constitution, the right of ownership is not absolute, it can be
limited by means of a law due to the character of the object of
ownership, due to committed deeds, which are contrary to law,
and/or due to the need which is necessary to the society and
constitutionally grounded; when one limits the rights of
ownership, in all cases the following conditions must be
followed: it may be limited only by invoking the law; the
limitations must be necessary in a democratic society in order to
protect the rights and freedoms of other persons, the values
established in the Constitution and the objectives which are
necessary to society and which are constitutionally grounded; one
must pay heed to the principle of proportionality (Constitutional
Court rulings of 21 December 2000, 14 March 2002, 19 September
2002, 4 March 2003, 30 September 2003, 13 May 2005, 14 March
2006, 10 April 2009, and 8 June 2009).
In the context of the constitutional justice case at issue
it should be noted that forests are special objects of ownership
law. According to the Constitution, land, forests, water bodies
may belong to various entities by right of ownershipto the
state, municipalities, legal and natural persons. In its ruling
of 1 June 1998, the Constitutional Court has held that forest is
one of the chief natural resources; it is part of the indivisible
ecological system, it serves for the welfare of society and
people, it preserves the stability of the landscape and improves
the quality of the environment; the common principles of
environmental protection are applied to forest as a constituent
part of environment: environmental protection is the concern and
obligation of the state and the population; both public and
private interests should be devoted to improve the quality of the
environment; diminishing of the negative impact upon the
environment, striving for ecological production; efficient and
combined utilisation of natural resources, in the valid legal
acts special duties are established to forest owners, managers
and users, as: to protect the forests from fire, pests, diseases
and other negative factors, to restore the felled forest in due
time and properly, to utilise the forest in such a way which
could diminish the negative impact upon the environment, to
rationally manage the woodland, to preserve its biological
diversity, etc. One may legislatively establish a special,
exceptional legal regime in regard of forests if compared with
other objects (Constitutional Court ruling of 14 March 2006).
10. While construing the provisions, which originate from
the Constitution, that ownership includes obligations, and that
the right of ownership is not absolute, together with Article 54
of the Constitution, the Constitutional Court has held that all
owners, possessors and users of land lots, forests and water
bodies, must pay heed to the constitutional imperative of the
protection of natural environment and protect the natural
environment, not deteriorate its state, and not inflict harm upon
the natural environment (Constitutional Court ruling of 14 March
2006); proper and rational use of land, forests and water bodies
is a public interest protected by the Constitution
(Constitutional Court ruling of 13 May 2005); the state, being
under constitutional obligation to act so that the protection of
natural environment and of its individual objects, moderate use
of natural resources and their restoration and augmentation are
guaranteed, may legislatively establish the legal regulation
under which the use of individual objects (natural resources) of
natural environment be restricted (Constitutional Court rulings
of 6 September 2007 and 4 July 2008); a special ecologic, social
and economic significance of the forest to the environment and
public interests determines certain limitations and restrictions
of the right of ownership of the owners of the forest
(Constitutional Court rulings of 1 June 1998, 13 May 2005, 14
March 2006 and 6 September 2007). In its ruling of 14 March 2006,
the Constitutional Court also held that on the basis of the
provision of Paragraph 2 of Article 23 of the Constitution that
the rights of ownership shall be protected by laws, the provision
of Article 54 that the state must take care of the protection of
the natural environment, individual objects of nature and
especially areas of particular value, as well as other provisions
of the Constitution, a conclusion is to be drawn that respective
measures of protection, including all restrictions of ownership
right and freedom of economic activity, and prohibitions, must be
established by means of a law.
11. The Constitutional Court has held: the Constitution does
not prohibit grouping of land and other objects of natural
environment according to various criteria, inter alia according
to the purpose of their use; this must be done when taking
account of characteristics of corresponding natural objects and
other factors of natural environment; when regulating the
relations in a differentiated manner, which are linked with the
ownership and utilisation of land, forests, parks, water bodies,
including those that are in areas of particular value, the
legislator may ascribe land and other objects of natural
environment to certain kinds (categories), establish the legal
regime related with such objects, inter alia the conditions,
limitations and prohibitions linked with the ownership, use,
economic and other activity; the said limitations and
prohibitions must be constitutionally grounded (Constitutional
Court rulings of 14 March 2006 and 30 March 2006).
12. The Constitutional Court has also held that it is
permitted to make changes in the ascribing of land lots to
agricultural land or to land of other purpose (inter alia after
qualitative changes in corresponding resources of land take
place); in order to preserve the useful characteristics of
agricultural land, the legislator has a duty to establish clear
criteria of converting agricultural land into land of other
purpose, while in the course of converting the purpose of land
one must pay heed to the public interest (Constitutional Court
ruling of 30 March 2006); this is mutatis mutandis applicable
also when regulating relations linked to converting the
designation of land lots as forest land.
Thus, according to the Constitution, the legislator may
establish such legal regulation, according to which the
attribution of land lots to land for forestry purposes may be
altered, and forest land may be converted into other landed
property (inter alia after qualitative changes in corresponding
resources of land take place). Under the Constitution, inter alia
Articles 23 and 54 thereof, the legislator, when regulating
relations linked to converting the designation of land lots as
land for forestry purposes into land for other purposes, as well
as relations linked to converting forest land into other landed
property, is obligated to establish clear criteria of converting
the designation of land lots as land for forestry into land for
other purposes, as well as converting forest land into other
landed property. While doing so, one must pay heed to
peculiarities of forest as a natural object, general principles
of environment protection (inter alia diminishing negative impact
upon environment, efficient and combined utilisation), and the
public interest. In this context it should be noted that the
legal regulation where the conversion of attributing land lots to
forest land into land for other purposes, as well as conversion
of forest land into other landed property is established by means
of a law, may be differentiated, inter alia by taking account of
the forest value, the functional purpose and the impact upon the
ecosystem.
13. The Constitutional Court has also held that one of the
basic elements of the principle of a state under the rule of law,
which is consolidated in the Constitution, is legal certainty and
clearness. The imperative of legal certainty and clearness
presupposes certain obligatory requirements to legal regulation.
Legal regulation must be clear and harmonious, legal norms must
be formulated precisely and not contain any ambiguities
(Constitutional Court rulings of 30 May 2003, 26 January 2004 and
24 December 2008).
14. In its ruling of 14 March 2006, the Constitutional Court
held that when regulating, by means of legal acts, the relations
linked with the ownership and utilisation of land, forests, parks
and water bodies, as well as those which are in areas of
particular value, one must pay heed to the norms and principles
of the Constitution, inter alia the constitutional principle of a
state under the rule of law. The Constitutional Court has also
held that the constitutional principle of a state under the rule
of law implies the hierarchy of all legal acts and does not
permit that substatutory legal acts regulate the relations which
can be regulated only by the law, nor does it permit that
substatutory legal acts establish any such legal regulation which
would compete with that established in the law or that such legal
regulation would not be based upon laws (Constitutional Court
ruling of 14 March 2006), because otherwise, the supremacy of
laws in respect to substatutory acts, which is established in the
Constitution would be violated (Constitutional Court ruling of 21
August 2002).
15. It has been mentioned that Paragraph 1 of Article 11 of
the Law on Forests (wording of 10 April 2001) provides: "1.
Forest land may be converted into other landed property only in
exceptional cases, striking a balance between the interests of
the state, the forest owner and society, and in the manner
prescribed by the Government."
It should be noted that, as mentioned, two provisions are
consolidated in Paragraph 1 of Article 11 of the Law on Forests
(wording of 10 April 2001): first, forest land may be converted
into other landed property only in exceptional cases; second,
when converting forest land into other landed property, a balance
should be kept between the interests of the state, the forest
owner and society, and this should be done upon the procedure
established by the Government.
16. It has also been mentioned that in the explanatory
provision of Paragraph 1 of Article 11 of the Law on Forests
(wording of 10 April 2001), according to which forest land may be
converted into other landed property only in exceptional cases,
one entrenches a general rule that forest land may not be
converted into other landed property; this may be done "only in
exceptional cases".
In the context of the constitutional case at issue, it
should be noted that the fact that forest land may be converted
into other landed property only in exceptional cases corresponds
to a special legal status of forest as a national value of
exceptional importance.
Alongside, it should be noted that in the course of
consolidation of legal regulation the content of the applied
formulation "only in exceptional cases" was disclosed neither
Paragraph 1 of Article 11 of the Law on Forests (wording of 10
April 2001), nor other articles of this law. Thus, the meaning of
the formulation "only in exceptional cases", which basically
determines the converting of forest land into other landed
property, is not defined and is unclear.
It should also be noted that, as mentioned, in the course of
consolidation of the legal regulation, the cases of converting
forest land into other landed property that are to be treated as
exceptional and/or criteria of defining such cases are set forth
neither in Paragraph 1 of Article 11 of the Law on Forests
(wording of 10 April 2001), nor in other articles of this law.
In this context it is to be held that the legal regulation
entrenched in Paragraph 1 of Article 11 of the Law on Forests
(wording of 10 April 2001), according to which the interests of
the state, the forest owner and society should be coordinated
under the procedure defined by the Government in the course of
converting forest land into other landed property, should be
assessed as the establishment of certain procedures for
coordination of interests; such procedures may not be construed
so that, purportedly, the legislator in this way permits setting
the cases of converting forest land into other landed property,
which are to be treated as exceptional.
17. It has been mentioned that the laws must protect the
ownership rights of all owners; under the Constitution, the
ownership right is not absolute, it may be limited by means of a
law due to the character of object of ownership, due to the need
which is necessary to the society and constitutionally grounded.
It has also been mentioned that forests are special objects of
the ownership right; the special ecological, social and economic
importance of forest in relation to the environment and the
public interests causes certain limitations and restrictions of
the ownership rights of forest owners, however, the ownership
rights may be limited only on the grounds of a law.
It has also been mentioned that, according to the
Constitution, the law may entrench the legal regulation according
to which one may convert the purpose of forestry land; according
to the Constitution, inter alia Articles 23 and 54 thereof, when
regulating the relations linked to converting the purpose of
forestry land, as well as relations linked to converting forest
land into other landed property, the legislator has the
obligation to establish clear criteria of converting forest land
into other landed property; while doing so, one must pay heed to
peculiarities of forest as an object of nature, to the general
principles of environment protection (inter alia diminishing a
negative impact upon the environment, efficient and combined
utilisation of natural resources), as well as to public interest;
the legal regulation where one establishes, in a law, the change
of designation of land lots as forest land, and converting of
forest land into other landed property, may be differentiated,
inter alia by paying heed to the forest value, the functional
purpose, and the impact upon the ecosystem.
It has also been mentioned that one of the major elements of
the principle of a state under the rule of law is legal certainty
and legal clearness; the imperative of legal certainty and legal
clearness implies certain additional requirements to the legal
regulation: it must be clear and harmonious.
It is to be held that having failed to establish, in
Paragraph 1 of Article 11 of the Law on Forests (wording of 10
April 2001), the cases and/or criteria of converting forest land
into other landed property that are to be considered as
exceptional, one deviates from the requirements that originate
from Articles 23 and 54 of the Constitution and the
constitutional principle of a state under the rule of law.
18. Taking into account the aforementioned arguments, one is
to draw a conclusion that Paragraph 1 of Article 11 of the Law on
Forests (wording of 10 April 2001) to the extent that it does not
establish the cases of converting forest land into other landed
property which are to be considered as exceptional cases, and/or
that it does not establish any criteria of determining of such
cases is in conflict with Articles 23 and 54 of the Constitution
and the constitutional principle of a state under the rule of
law.
19. Having held that Paragraph 1 of Article 11 of the Law on
Forests (wording of 10 April 2001) to the extent that it does not
establish the cases of converting forest land into other landed
property which are to be considered as exceptional cases, and/or
that it does not establish any criteria of determining of such
cases is in conflict with Articles 23 and 54 of the Constitution
and the constitutional principle of a state under the rule of
law, in this constitutional justice case the Constitutional Court
will not examine as to whether Item 7.4 of the Procedure approved
by Item 1 of Government resolution No. 641 of 9 May 2002 was not
in conflict with Paragraph 1 of Article 11 of the Law on Forests
(wording of 10 April 2001).
Otherwise (if the compliance of Item 7.4 of the Procedure
approved by Item 1 of Government resolution No. 641 of 9 May 2002
with Paragraph 1 of Article 11 of the Law on Forests (wording of
10 April 2001) was investigated), one would deny the notion of
hierarchy of legal acts as entrenched in the Constitution, the
principle of supremacy of the Constitution, and, in addition, the
very essence of constitutional justice would be distorted.
20. It has been mentioned that the Vilnius Regional
Administrative Court, the petitioner, requests to investigate as
to whether Item 7.4 of the Procedure approved by Item 1 of
Government resolution No. 641 of 9 May 2002, which provides that
"in the forests of groups III and IV, which are not listed in
Items 7.1 and 7.2 of the Procedure, forest land may be converted
into other landed property even in the absence of general plans
of the territory of a municipality or parts of the territory of a
municipality, drafted and approved upon the procedure defined in
the Republic of Lithuania Law on Territorial Planning, or in the
absence of special documents on planningprojects of forest
management" was not in conflict with Article 54 of the
Constitution and the constitutional principle of a state under
the rule of law.
21. When deciding whether Item 7.4 of the Procedure approved
by Item 1 of Government resolution No. 641 of 9 May 2002 was not
in conflict with the Constitution, it should be noted that, as
already mentioned, the Government therein established that forest
land located in the forests of group III and IV (save the
indicated exceptions) could be converted into other landed
property even in the absence of general plans of the territory of
a municipality or parts of the territory of a municipality,
drafted and approved upon the procedure defined in the Law on
Territorial Planning, or in the absence of special documents on
planningprojects of forest management.
22. It was held in this ruling that:
- according to the Constitution, inter alia Articles 23 and
54 thereof, the legislator, when regulating the relations linked
to converting the designation of forestry land, as well as the
relations linked to converting forest land into other landed
property is obligated to establish criteria of converting forest
land into land for other purposes;
- in the course of consolidation of the legal regulation,
the cases of converting forest land into other landed property
that are to be treated as exceptional and/or criteria of defining
such cases are set forth neither in Paragraph 1 of Article 11 of
the Law on Forests (wording of 10 April 2001), nor in other
articles of this law;
- when regulating, by laws, the legal relations linked to
the ownership and utilisation of land, forests, parks, water
bodies, including those that are situated in especially valuable
locations, one must pay heed to the norms and principles of the
Constitution, inter alia the constitutional principle of a state
under the rule of law; the principle of a state under the rule of
law implies the hierarchy of all legal acts and does not permit
that substatutory legal acts regulate the relations which can be
regulated only by the law, nor does it permit that substatutory
legal acts establish any such legal regulation which would
compete with that established in the law or that such legal
regulation would not be based upon laws, because, otherwise, the
supremacy of laws in respect to substatutory acts, which is
established in the Constitution, would be violated;
- special ecological, social and economic importance of
forest in relation to environment and the public interests causes
certain limitations and restrictions of the ownership rights of
forest owners; when restricting ownership rights the following
conditions should be met in all cases: it may be limited only on
grounds of law; the restrictions must be necessary in a
democratic society in order to preserve the rights and freedoms
of other persons, the values that are entrenched in the
Constitution, and the constitutionally important objectives that
are necessary to the society; the principle of proportionality
must be followed.
23. It is to be held that by means of Item 7.4 of the
Procedure approved by Item 1 of Government resolution No. 641 of
9 May 2002, which provides that in the forests of groups III and
IV, which are not listed in Items 7.1 and 7.2 of the Procedure,
forest land may be converted into other landed property even in
the absence of general plans of the territory of a municipality
or parts of the territory of a municipality, which are drafted
and approved upon the procedure defined in the Law on Territorial
Planning, or in the absence of special documents on planning
projects of forest management, i.e. by means of a substatutory
act regulated the relations linked to limitation of the ownership
rights of the owner, i.e. the relations which, pursuant to the
Constitution, inter alia Articles 23 and 54 thereof, and the
constitutional principle of a state under the rule of law, may be
regulated only by means of a law.
24. Taking into account the aforementioned arguments, one is
to draw a conclusion that Item 7.4 of the Procedure approved by
Item 1 of Government resolution No. 641 of 9 May 2002 was in
conflict with Articles 23 and 54 of the Constitution and the
constitutional principle of a state under the rule of law.
25. Having held that Item 7.4 of the Procedure approved by
Item 1 of Government resolution No. 641 of 9 May 2002 was in
conflict with Articles 23 and 54 of the Constitution and the
constitutional principle of a state under the rule of law, in
this constitutional justice case the Constitutional Court will
not examine as to whether Item 7.4 of the Procedure approved by
Item 1 of Government resolution No. 641 of 9 May 2002 was not in
conflict with the provision "Detailed plans may not be drafted in
the event that the objectives of planning are in conflict with
the requirements of laws and other legal acts" of Paragraph 4
(wording of 8 June 2006) of Article 24, as well as Paragraph 3
(wording of 8 June 2006) of Article 26 of the Law on Territorial
Planning (wording of 15 January 2004 with subsequent amendments
and supplements).
IV
On the compliance of Paragraph 6 (wording of 8 June 2006) of
Article 22 of the Law on Territorial Planning (wording of 15
January 2004 with subsequent amendments and supplements) with
Paragraph 3 of Article 46, Paragraph 1 of Article 54 of the
Constitution, and the constitutional principle of a state under
the rule of law.
1. It has been mentioned that the Vilnius Regional
Administrative Court, the petitioner, has doubts as to whether
Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on
Territorial Planning (wording of 15 January 2004 with subsequent
amendments and supplements) to the extent that, according to the
petitioner, it does not establish that the detailed plans, under
which the main targeted purpose of utilisation of land is
converted from forestry land into land for other purposes, are
drafted, where such conversion is provided for in general plans
as well as in special plans of a municipality or part thereof, is
not in conflict with Paragraph 3 of Article 46 and Paragraph 1 of
Article 54 of the Constitution and the constitutional principle
of a state under the rule of law (petitions Nos. 1B-08/2007, 1B-
17/2007, and 1B-21/2007).
2. The doubts of the petitioner concerning the compliance of
the disputed legal regulation with Paragraph 3 of Article 46 and
Paragraph 1 of Article 54 of the Constitution and the
constitutional principle of a state under the rule of law are
based on the fact, that, according to him, the disputed Paragraph
6 (wording of 8 June 2006) of Article 22 of the Law on
Territorial Planning (wording of 15 January 2004 with subsequent
amendments and supplements) does not establish the legal
regulation, under which the main targeted purpose of land
utilisation is converted from forestry land into land for other
purposesconstruction of buildingswhereas this norm contains the
legal regulation whereby the main targeted purpose of land
utilisation is converted from agricultural land into land for
other purposesconstruction of buildings; therefore, according to
the petitioner, such legal regulation is in conflict with the
Constitution, because land for forestry purposes enjoys less
protection than land for agricultural purposes.
3. It has been mentioned that Paragraph 6 (wording of 8 June
2006) of Article 22 "Drafting of Detailed Plans" of the Law on
Territorial Planning (wording of 15 January 2004 with subsequent
amendments and supplements), which in this constitutional justice
case to the indicated extent is disputed by the petitioner,
provides:
"6. The detailed plans, which convert the main targeted
purpose of land utilisation from agricultural land into land for
other purposes shall be drafted if such conversion is provided
for in the general plans as well as in special plans of a
municipality or part thereof. In the event that general or
special plans have not been drafted it is only the director of
the administration of a municipality or the possessor of the
state-owned land, who may be the organiser of drafting of the
detailed plans. Where the possessor or user of land intends to
convert the main targeted purpose of land utilisation from
agricultural land into land for other purposes, in which
construction of important objects of municipal infrastructure
(except residential houses) is planned, by 31 December 2007, when
general plans of the territories of municipalities or parts
thereof (cities, towns) must be drafted, the director of the
administration of a municipality, in the presence of a decision
of the municipal council and consent of the chief of the county,
upon the procedure defined by the Government concludes a contract
on transfer of rights and obligations of the organiser of
detailed territorial planning to the possessor or user of the
land."
4. It has also been mentioned that in the Law on Territorial
Planning (wording of 15 January 2004 with subsequent amendments
and supplements), in the course of regulating the relations where
the main targeted purpose of land utilisation is converted into
land for other purposes (inter alia for construction of
buildings), alongside with the general legal regulation,
Paragraph 6 (wording of 8 June 2006) of Article 22 of this law
establishes a separate, special legal regulation designated for
drafting detailed plans, under which the main targeted purpose of
land utilisation is converted from agricultural land into land
for other purposes (inter alia for construction of buildings);
moreover, it establishes as to who may become the organiser of
detailed territorial planning, in what cases and under what
conditions, in the course of drafting the aforementioned detailed
plans, one may conclude a contract on transfer of the rights and
obligations of the organiser of detailed territorial planning to
the possessor or user of the land lots.
5. It should be noted that, as already mentioned, the legal
regulation establishing conditions of converting the targeted
purpose of land utilisation from forest land into land for other
purposes (inter alia for construction of buildings), is set forth
not in Paragraph 6 (wording of 8 June 2006) of Article 22 of the
Law on Territorial Planning (wording of 15 January 2004 with
subsequent amendments and supplements), but in other articles
(parts thereof) of this and other laws. For example, as already
mentioned, the Law on Territorial Planning (wording of 15 January
2004 with subsequent amendments and supplements) provides that
"upon the procedure defined by the Government, and in the cases
and under conditions defined by the latter, a municipality can
conclude a contract on transfer of rights and obligations of the
organiser of the detailed planning to the owner, the possessor or
the user of land" (Paragraph 2 of Article 20), "detailed plans
shall be drafted: <...> 3) when the main targeted purpose of land
utilisation is converted into construction of buildings <...>"
(Item 3 of Paragraph 1 of Article 22), "one may draft detailed
plans in the course of forming land lots for construction of
residential houses and buildings or constructions meant for other
purposes only in the event that construction is provided for in
general plans or in special plans of territory of a municipality
or part thereof <...>. Where general plans are not drafted by 31
December 2007, <...> one may permit to draft detailed plans for
construction of important objects of municipal infrastructure
(except residential houses) under decision of the municipal
council and upon the consent of the chief of the county
(Paragraph 1 of Article 24); it has also been mentioned that the
Law on Forests (wording of 10 April 2001 with subsequent
amendments and/or supplements) provides that "forest land may be
converted into other landed property only in exceptional cases,
while coordinating the interests of the state, the forest owner
and society, and in the manner prescribed by the Government"
(Paragraph 1 of Article 11); it has also been mentioned that the
Law on Land (wording of 27 January 2004 with subsequent
amendments and supplements) provides that "the established main
targeted purpose of land utilisation is converted <...> according
to detailed or special documents of territorial planning"
(Paragraph 1 of Article 24).
Thus it is obvious from the indicated legal regulation that
conditions of converting the main targeted land utilisation from
forestry land into land for other purposes (inter alia for
construction of buildings) are established not in Paragraph 6
(wording of 8 June 2006) of Article 22 of the Law on Territorial
Planning (wording of 15 January 2004 with subsequent amendments
and supplements), but in other articles (parts thereof) of this
and other laws, inter alia in Paragraph 2 of Article 20, Item 3
of Paragraph 1 of Article 22, Paragraph 1 of Article 24 of the
Law on Territorial Planning (wording of 15 January 2004 with
subsequent amendments and supplements), Paragraph 1 of Article 11
of the Law on Forests (wording of 10 April 2001 with subsequent
amendments and/or supplements), and in Paragraph 1 of Article 24
of the Law on Land (wording of 27 January 2004 with subsequent
amendments and/or supplements).
6. In this context it should be noted that the petitioner,
when requesting to investigate the compliance of Paragraph 6
(wording of 8 June 2006) of Article 22 of the Law on Territorial
Planning (wording of 15 January 2004 with subsequent amendments
and supplements) with the Constitution to the extent that,
according to the petitioner, it does not establish that the
detailed plans, under which the main targeted purpose of
utilisation of land is converted from forestry land into land for
other purposes (for construction of buildings), are drafted,
where such conversion is provided for in general plans as well as
in special plans of a municipality or part thereof, challenges,
as already mentioned, not the legal regulation entrenched in
Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on
Territorial Planning (wording of 15 January 2004 with subsequent
amendments and supplements), but the fact that it does not
establish something that should have been established; thus, in
this case it is the issue of legislative omission that is raised.
7. The Constitutional Court has held that a legal gap, inter
alia legislative omission, always means that the legal regulation
of corresponding social relations is established neither
explicitly, nor implicitly, neither in the said legal act (part
thereof), nor any other legal acts, even though there exists a
need for legal regulation of these social relations, while the
said legal regulation, in case of legislative omission, must be
established, while heeding the imperatives of the consistency and
inner uniformity of the legal system stemming from the
Constitution and taking account of the content of these social
relations, precisely in that legal act (precisely in that part
thereof), since this is required by a certain legal act of higher
power, inter alia the Constitution itself (Constitutional Court
decisions of 8 August 2006, 5 November 2008, and ruling of 2
March 2009).
8. It has been mentioned that the legal regulation
establishing the conditions of converting the targeted land
utilisation from forestry land (inter alia into land for other
purposesconstruction of buildings) is provided for inter alia in
Paragraph 2 of Article 20, Item 3 of Paragraph 1 of Article 22,
Paragraph 1 of Article 24 of the Law on Territorial Planning
(wording of 15 January 2004 with subsequent amendments and
supplements), Paragraph 1 of Article 11 of the Law on Forests
(wording of 10 April 2001 with subsequent amendments and/or
supplements), and in Paragraph 1 of Article 24 of the Law on Land
(wording of 27 January 2004 with subsequent amendments and/or
supplements).
9. Therefore, there are no legal grounds to state that the
legal regulation indicated by the petitioner, whereby the
detailed plans under which the main targeted land utilisation
purpose is converted from forestry land into land for other
purposesconstruction of buildingsare drafted, where such
conversion is provided for in general plans as well as in special
plans of a municipality or part thereof, ought to be established
precisely in Paragraph 6 (wording of 8 June 2006) of Article 22
of the Law on Territorial Planning (wording of 15 January 2004
with subsequent amendments and supplements).
It means that the legislative omission indicated by the
petitioner does not exist in Paragraph 6 (wording of 8 June 2006)
of Article 22 of the Law on Territorial Planning (wording of 15
January 2004 with subsequent amendments and supplements)there is
no such legal gap, which is prohibited by the Constitution.
10. It has been held in this Constitutional Court ruling
that Paragraph 1 of Article 11 of the Law on Forests (wording of
10 April 2001) to the extent that it does not establish the cases
of converting forest land into other landed property which are to
be considered as exceptional cases, and/or that it does not
establish any criteria of determining of such cases, is in
conflict with the Constitution. Alongside, it should be noted
that the mere fact that Paragraph 1 of Article 11 of the Law on
Forests (wording of 10 April 2001) to the respective extent is
recognised to be in conflict with the Constitution, does not mean
that the legal regulation indicated by the petitioner had to be
established precisely in Paragraph 6 (wording of 8 June 2006) of
Article 22 of the Law on Territorial Planning (wording of 15
January 2004 with subsequent amendments and supplements).
11. Taking into account the aforementioned arguments, one is
to draw a conclusion that Paragraph 6 (wording of 8 June 2006) of
Article 22 of the Law on Territorial Planning (wording of 15
January 2004 with subsequent amendments and supplements) to the
extent that, according to the petitioner, it does not establish
that detailed plans, under which the main targeted purpose of
utilisation of land is converted from forestry land into land for
other purposes, are drafted, where such conversion is provided
for in general plans as well as in special plans of a
municipality or part thereof, is not in conflict with Paragraph 3
of Article 46 and Paragraph 1 of Article 54 of the Constitution
and the constitutional principle of a state under the rule of
law.
V
On the compliance of Item 7.2 (wording of 15 January 2004)
of the Schedule of the Procedure for Transfer of Rights and
Obligations of the Organiser of Detailed Planning of Territories
as well as Conclusion of Contracts approved by Government
Resolution No. 635 "On Approval of the Schedule of the Procedure
for Transfer of Rights and Obligations of the Organiser of
Detailed Planning of Territories as well as Conclusion of
Contracts" of 26 May 2004 with Paragraph 3 of Article 46,
Paragraph 1 of Article 54 of the Constitution, the constitutional
principle of a state under the rule of law, the provision
"Detailed plans may not be drafted in the event that the
objectives of planning are in conflict with the requirements of
laws and other legal acts" of Paragraph 4 (wording of 8 June
2006) of Article 24 of the Law on Territorial Planning (wording
of 15 January 2004), as well as Paragraph 1 of Article 11 of the
Law on Forests (wording of 10 April 2001).
1. It has been mentioned that the Vilnius Regional
Administrative Court, the petitioner, has doubts as to whether
Item 7.2 (wording of 15 January 2004) of the Schedule approved by
Government resolution No. 635 of 26 May 2004, to the extent that,
according to the petitioner, it does not define that the rights
and obligations of the organiser of detailed territorial planning
may be transferred and the contract may be concluded, as well as
the main targeted land utilisation purpose may be converted from
forestry land into land for other purposesconstruction of
buildingswhere such conversion is provided for in general plans
as well as in special plans of a municipality or part thereof, is
not in conflict with Paragraph 3 of Article 46, Paragraph 1 of
Article 54 of the Constitution, the constitutional principle of a
state under the rule of law, the provision "Detailed plans may
not be drafted in the event that the objectives of planning are
in conflict with the requirements of laws and other legal acts"
of Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law
on Territorial Planning (wording of 15 January 2004 with
subsequent amendments and supplements), as well as Paragraph 1 of
Article 11 of the Law on Forests (wording of 10 April 2001)
(petitions Nos. 1B-08/2007 and 1B-17/2007).
2. The doubts of the petitioner concerning the compliance of
the disputed legal regulation with the Constitution and laws are
based on the fact, that, according to him, disputed Item 7.2
(wording of 15 January 2004) of the Schedule approved by
Government resolution No. 635 of 26 May 2004, to the extent that
it does not establish the legal regulation, according to which
the rights and obligations of the organiser of detailed
territorial planning may be transferred and a contract may be
concluded, as well as the main targeted purpose of utilisation of
land may be converted from forestry land into land for other
purposesconstruction of buildingswhere such conversion is
provided for in general plans as well as in special plans of a
municipality or part thereof, is in conflict with the
Constitution and laws, because under the established regulation
land for forestry purposes enjoys less protection than land for
agricultural purposes.
3. It should be noted that the petitioner, when requesting
to investigate the compliance of Item 7.2 (wording of 15 January
2007) of the Schedule with Paragraph 3 of Article 46, Paragraph 1
of Article 54 of the Constitution, the constitutional principle
of a state under the rule of law, the provision "Detailed plans
may not be drafted in the event that the objectives of planning
are in conflict with the requirements of laws and other legal
acts" of Paragraph 4 (wording of 8 June 2006) of Article 24 of
the Law on Territorial Planning (wording of 15 January 2004 with
subsequent amendments and supplements), as well as Paragraph 1 of
Article 11 of the Law on Forests (wording of 10 April 2001), does
not challenge the legal regulation entrenched in Item 7.2
(wording of 15 January 2007) of the Schedule. Instead, the
petitioner challenges the fact that it does not establish
something that should have been established, thus, it is the
issue of legislative omission that is raised.
4. The Constitutional Court has held that a legal gap always
means that the legal regulation of corresponding social relations
is established neither explicitly, nor implicitly, neither in the
said legal act (part thereof), nor any other legal acts, even
though there exists a need for legal regulation of these social
relations (Constitutional Court decisions of 8 August 2006, 5
November 2008, and ruling of 2 March 2009).
5. On 26 May 2004, the Government, pursuant to Paragraph 2
of Article 20 of the Law on Territorial Planning, adopted
Resolution No. 635 "On Approval of the Schedule of the Procedure
for Transfer of Rights and Obligations of the Organiser of
Detailed Planning of Territories as well as Conclusion of
Contracts", which came into force on 29 May 2004. By this
resolution the Government approved the Schedule of the Procedure
for Transfer of Rights and Obligations of the Organiser of
Detailed Planning of Territories as well as Conclusion of
Contracts.
The aforementioned schedule regulated the procedure and
conditions of transfer of rights and obligations of the organiser
of detailed planning of territories to the owner, the possessor
or the user of the land, as well as the procedure and conditions
of concluding contracts on transfer of rights and obligations of
the organiser of the detailed planning (Item 1).
6. On 15 January 2007, the Government adopted Resolution No.
36 "On Amending Resolution of the Government or the Republic of
Lithuania No. 635 'On Approval of the Schedule of the Procedure
for Transfer of Rights and Obligations of the Organiser of
Detailed Planning of Territories as well as Conclusion of
Contracts' of 26 May 2004" (hereinafter also referred to as
Government resolution No. 36 of 15 January 2007), which came into
force on 19 January 2007. Item 1 of the said resolution amended
the Preamble to Government Resolution No. 635 "On Approval of the
Schedule of the Procedure for Transfer of Rights and Obligations
of the Organiser of Detailed Planning of Territories as well as
Conclusion of Contracts" of 26 May 2004 and it indicated that the
Schedule is approved on the basis not only of Paragraph 2 of
Article 20 of the Law on Territorial Planning but of Paragraph 6
of Article 22 of this law as well. By this resolution one inter
alia amended Item 7.2, the provisions of which are disputed in
this constitutional justice case.
6.1. In the context of the constitutional justice case at
issue it should be noted that Chapter II "Conditions of Transfer
of Rights and Obligations of the Organiser of the Detailed
Planning" (wording of 26 May 2004 with amendments made by
Government resolution No. 36 of 15 January 2007) of the Schedule,
the compliance of Item 7.2 of which with the Constitution and
laws (articles and paragraphs thereof) to the indicated extent is
disputed by the petitioner, inter alia provides:
"7. The rights and obligations of the organiser of detailed
territorial planning shall be transferred and a contract shall be
concluded, where it is planned:
<...>
7.2. to convert the main targeted land utilisation purpose
into the land for construction of buildings and development of
other activity. The main targeted land utilisation purpose may be
converted from agricultural land into land for other purposes,
where such conversion is provided for in general plans as well as
in special plans of a municipality or part thereof (cities,
towns). The director of the administration of a municipality
concludes a contract in the events and under conditions
established in Paragraph 6 of Article 22 of the Law on
Territorial Planning, and upon procedure defined in this
Schedule;".
6.2. Government resolution No. 635 (wording of 15 January
2007) of 26 May 2004 and the Schedule approved by this
resolution, inter alia Item 7.2 (wording of 15 January 2007)
thereof, have not been further amended and/or supplemented.
7. It has been mentioned that Paragraph 6 (wording of 8 June
2006) of Article 22 "Drafting of Detailed Plans" of the Law on
Territorial Planning (wording of 15 January 2004 with subsequent
amendments and supplements) provides:
"6. The detailed plans, which convert the main targeted
purpose of land utilisation from agricultural land into land for
other purposes shall be drafted if such conversion is provided
for in the general plans as well as in special plans of a
municipality or part thereof. In the event that general or
special plans have not been drafted it is only the director of
the administration of a municipality or the possessor of the
state-owned land, who may be the organiser of drafting of the
detailed plans. Where the possessor or user of land intends to
convert the main targeted purpose of land utilisation from
agricultural land into land for other purposes, in which
construction of important objects of municipal infrastructure
(except residential houses) is planned, by 31 December 2007, when
general plans of the territories of municipalities or parts
thereof (cities, towns) must be drafted, the director of the
administration of a municipality, in the presence of a decision
of the municipal council and consent of the chief of the county,
upon the procedure defined by the Government concludes a contract
on transfer of rights and obligations of the organiser of
detailed territorial planning to the possessor or user of the
land."
8. It is to be held that the legal regulation entrenched in
Item 7.2 (wording of 15 January 2007) of the Schedule whereby the
rights and obligations of the organiser of the detailed planning
may be transferred and a contract may be concluded in the course
of conversion of the main targeted land utilisation purpose from
agricultural land into land for other purposes, where such
conversion is provided for in general plans of a municipality or
part thereof (cities, towns), as well as in special plans, is
based on the legal regulation established in Paragraph 2 (wording
of 8 June 2006) of Article 22 of the Law on Territorial Planning
(wording of 15 January 2004 with subsequent amendments and
supplements) and is basically in line with it. It has been held
in this Constitutional Court ruling that Paragraph 6 (wording of
8 June 2006) of Article 22 of the Law on Territorial Planning
(wording of 15 January 2004 with subsequent amendments and
supplements) to the extent that, according to the petitioner, it
does not establish that detailed plans, under which the main
targeted purpose of utilisation of land is converted from
forestry land into land for other purposes, are drafted, where
such conversion is provided for in general plans as well as in
special plans of a municipality or part thereof, is not in
conflict with the Constitution.
9. It has been mentioned that the petitioner challenges not
the compliance of the legal regulation entrenched in Item 7.2
(wording of 15 January 2007) of the Schedule with the
Constitution and laws, but the fact that it does not establish
something that should have been established. According to the
petitioner, Item 7.2 (wording of 15 January 2007) of the Schedule
should also provide that the rights and obligations of the
organiser of detailed territorial planning may be transferred and
a contract may be concluded, as well as the main targeted land
utilisation purpose may be converted from forestry land into land
for other purposes, where such conversion is provided for in
general plans as well as in special plans of a municipality or
part thereof.
10. It should be noted that by such legal regulation whereby
the rights and obligations of the organiser of detailed
territorial planning may be transferred and a contract may be
concluded, as well as the main targeted land utilisation purpose
may be converted from forestry land into land for other purposes,
where such conversion is provided for in general plans as well as
in special plans of a municipality or part thereof, and the non-
establishment of which in Item 7.2 (wording of 15 January 2007)
of the Schedule, according to the petitioner, is in conflict with
the Constitution and laws, one would interfere in the
implementation of the ownership rights that are enjoyed by a
person in the aspect that preconditions would be created to limit
the ownership rights and thus to restrict the economic activity
of forest owners.
It should also be noted that neither the Law on Territorial
Planning (wording of 15 January 2004 with subsequent amendments
and supplements), nor the Law on Forests (wording of 10 April
2001 with subsequent amendments and/or supplements), nor any
other laws regulating the relations linked to conversion of the
main targeted land utilisation purpose establish that the rights
and obligations of the organiser of detailed territorial planning
may be transferred and a contract may be concluded, as well as
the main targeted land utilisation purpose may be converted from
forestry land into land for other purposesconstruction of
buildingswhere such conversion is provided for in general plans
as well as in special plans of a municipality or part thereof.
11. The Constitutional Court has held more than once that,
under the Constitution, the ownership right is not absolute, it
may be restricted by law inter alia due to the nature of the
object of ownership; when restricting the ownership rights the
following conditions should be met in all cases: it may be
limited only on grounds of a law; the restrictions must be
necessary in a democratic society in order to preserve rights and
freedoms of other persons, the values that are entrenched in the
Constitution, and constitutionally important objectives that are
necessary to the society; the principle of proportionality must
be followed. In this Constitutional Court ruling it has also been
held that forests are special objects of the ownership right;
special ecological, social and economic importance of forest in
relation to the environment and the public interests determines
certain limitations and restrictions of ownership rights of
forest owners, however, the ownership right may only be limited
only by means of a law. When construing Article 46 (inter alia
Paragraph 3 thereof) of the Constitution, the Constitutional
Court has held more than once that limitations of economic
activity are possible only if they are established by a law.
It has been mentioned that, when regulating the relations
linked to the ownership and utilisation of land, forests, parks
and water bodies by means of legal acts, one must pay heed to the
norms and principles of the Constitution, inter alia the
constitutional principle of a state under the rule of law; the
constitutional principle of a state under the rule of law implies
the hierarchy of all legal acts and does not permit that
substatutory legal acts regulate the relations which can be
regulated only by means of a law, nor does it permit that
substatutory legal acts establish any such legal regulation which
would compete with that established in the law or that such legal
regulation would not be based upon laws.
12. Thus, Item 7.2 (wording of 15 January 2004) of the
Schedule approved by Government resolution No. 635 of 26 May 2004
does not contain a gap of legal regulation as indicated by the
petitioner, because the Constitution, inter alia Articles 46 and
54 thereof, and the constitutional principle of a state under the
rule of law do not permit that substatutory legal acts regulate
the relations which can be regulated only by means of a law.
Thus, the legal regulation which, according to the petitioner,
should be established in Item 7.2 (wording of 15 January 2004) of
the Schedule, may not be entrenched either in this, or any other
substatutory legal act, because in the latter event it would not
be based on the law.
For this reason there are no arguments to maintain that Item
7.2 (wording of 15 January 2004) of the Schedule approved by
Government resolution No. 635 of 26 May 2004, in the aspect
indicated by the petitioner, is in conflict with Paragraph 3 of
Article 46, Paragraph 1 of Article 54 of the Constitution, the
constitutional principle of a state under the rule of law, as
well as the provision "Detailed plans may not be drafted in the
event that the objectives of planning are in conflict with the
requirements of laws and other legal acts" of Paragraph 4
(wording of 8 June 2006) of Article 24 of the Law on Territorial
Planning (wording of 15 January 2004 with subsequent amendments
and supplements).
13. In the constitutional justice case at issue it needs to
be noted that Item 3 (wording of 15 January 2007) of the Schedule
provides: "A municipality, represented by the director of the
administration of the municipality, while following the Republic
of Lithuania Law on Territorial Planning (Official Gazette '
Valstybės žinios', No. 107-2391; 2004, No. 21-617) and this
Schedule, may conclude a contract on transfer of rights and
obligations of the organiser of detailed territorial planning to
the possessor or user of the land lots (hereinafter referred to
as the Contract), where the objectives of planning, as indicated
in their applications, are not in conflict with the requirements
of laws and other legal acts, as well as solutions of general and
special plans".
When construing the provision of Item 7.2 (wording of 15
January 2007) that the rights and obligations of the organiser of
detailed territorial planning are transferred and the contract is
concluded when it is planned: "7.2. to convert the main targeted
land utilisation purpose of a land lot to be the land for
construction of buildings and development of other activity. The
main targeted land utilisation purpose may be converted from
agricultural land into land for other purposes, where such
transfer is provided for in general plans as well as in special
plans of a municipality or part thereof (cities, towns). The
director of the administration of a municipality concludes the
contract in the events and under conditions set forth in
Paragraph 6 of Article 22 of the Republic of Lithuania Law on
Territorial Planning, and upon procedure defined in this
Schedule" together with Item 3 (wording of 15 January 2007) of
the Schedule, it should be noted that the aforementioned
provision of Item 7.2 (wording of 15 January 2007) may not be
interpreted as the one that obligates the municipality to
conclude a contract on transfer of rights and obligations of the
organiser of detailed territorial planning to inter alia the
possessor or user of forest land and land lots in cases, when the
objectives of planning are not in line with the requirements of
laws and other legal acts.
14. Taking account of the aforementioned arguments, one is
to draw a conclusion that Item 7.2 (wording of 15 January 2004)
of the Schedule approved by Government resolution No. 635 of 26
May 2004, to the extent that, according to the petitioner, it
does not define that the rights and obligations of the organiser
of detailed territorial planning may be transferred and the
contract may be concluded, as well as the main targeted land
utilisation purpose may be converted from forestry land into land
for other purposesconstruction of buildingswhere such
conversion is provided for in general plans as well as in special
plans of a municipality or part thereof, is not in conflict with
Paragraph 3 of Article 46, Paragraph 1 of Article 54 of the
Constitution, the constitutional principle of a state under the
rule of law, and the provision "Detailed plans may not be drafted
in the event that the objectives of planning are in conflict with
the requirements of laws and other legal acts" of Paragraph 4
(wording of 8 June 2006) of Article 24 of the Law on Territorial
Planning (wording of 15 January 2004 with subsequent amendments
and supplements).
15. It has been mentioned that the petitioner requests to
investigate as to whether Item 7.2 (wording of 15 January 2004)
of the Schedule approved by Government resolution No. 635 of 26
May 2004, in the aspect indicated by him, is not in conflict with
Paragraph 1 of Article 11 of the Law on Forests (wording of 10
April 2001).
It has been held in this Constitutional Court ruling that
Paragraph 1 of Article 11 of the Law on Forests (wording of 10
April 2001) to the extent that it does not establish the cases of
converting forest land into other landed property which are to be
considered as exceptional cases, and/or that it does not
establish any criteria of determining of such cases, is in
conflict with articles 23 and 54 of the Constitution and the
constitutional principle of a state under the rule of law.
Having held that Paragraph 1 of Article 11 of the Law on
Forests (wording of 10 April 2001) to the extent that it does not
establish the cases of converting forest land into other landed
property which are to be considered as exceptional cases, and/or
that it does not establish any criteria of determining of such
cases, is in conflict with the Constitution, in this
constitutional justice case the Constitutional Court will not
investigate whether Item 7.2 (wording of 15 January 2004) of the
Schedule approved by Government resolution No. 635 of 26 May 2004
is not in conflict with Paragraph 1 of Article 11 of the Law on
Forests (wording of 10 April 2001).
Otherwise (if one investigated the compliance of Item 7.2
(wording of 15 January 2004) of the Schedule approved by
Government resolution No. 635 of 26 May 2004 with Paragraph 1 of
Article 11 of the Law on Forests (wording of 10 April 2001)), the
notion of the hierarchy of legal acts, as entrenched in the
Constitution, and the principle of supremacy of the Constitution
would be denied, as well as the very essence of constitutional
justice would be distorted.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that Paragraph 1 of Article 11 of the
Republic of Lithuania Law on Forests (wording of 10 April 2001,
Official Gazette "Valstybės žinios", 2001, No. 35-1161) to the
extent that it does not establish the cases of converting forest
land into other landed property which are to be considered as
exceptional cases, and/or that it does not establish any criteria
of determining of such cases, is in conflict with Articles 23 and
54 of the Constitution of the Republic of Lithuania and the
constitutional principle of a state under the rule of law.
2. To recognise that Item 7.4 (wording of 9 may 2002,
Official Gazette "Valstybės žinios", 2002, No. 48-1840) of the
Procedure for Converting Forest Land into Other Landed Property
approved by Item 1 of Resolution of the Government or the
Republic of Lithuania No. 641 "On Approval of the Procedure for
Converting Forest Land into Other Landed Property" of 9 May 2002
was in conflict with Articles 23 and 54 of the Constitution of
the Republic of Lithuania and the constitutional principle of a
state under the rule of law.
3. To recognise that Paragraph 6 (wording of 8 June 2006,
Official Gazette "Valstybės žinios", 2006, No. 66-2429) of
Article 22 of the Republic of Lithuania Law on Territorial
Planning (wording of 15 January 2004 with subsequent amendments
and supplements, Official Gazette "Valstybės žinios", 2004, No.
21-617) to the extent that it does not establish that detailed
plans, under which the main targeted purpose of utilisation of
land is converted from forestry land into land for other
purposes, are drafted, where such conversion is provided for in
general plans as well as in special plans of a municipality or
part thereof, is not in conflict with the Constitution of the
Republic of Lithuania.
4. To recognise that Item 7.2 (wording of 15 January 2004,
Official Gazette "Valstybės žinios", 2007, No. 7-281) of the
Schedule of the Procedure for Transfer of Rights and Obligations
of the Organiser of Detailed Planning of Territories as well as
Conclusion of Contracts approved by Resolution of the Government
or the Republic of Lithuania No. 635 "On Approval of the Schedule
of the Procedure for Transfer of Rights and Obligations of the
Organiser of Detailed Planning of Territories as well as
Conclusion of Contracts" of 26 May 2004 to the extent that it
does not define that the rights and obligations of the organiser
of detailed territorial planning may be transferred and the
contract may be concluded, as well as the main targeted land
utilisation purpose may be converted from forestry land into land
for other purposesconstruction of buildingswhere such
conversion is provided for in general plans as well as in special
plans of a municipality or part thereof (cities, towns), is not
in conflict with the Constitution of the Republic of Lithuania
and the provision "Detailed plans may not be drafted in the event
that the objectives of planning are in conflict with the
requirements of laws and other legal acts" of Paragraph 4
(wording of 8 June 2006) of Article 24 of the Republic of
Lithuania Law on Territorial Planning (wording of 15 January 2004
with subsequent amendments and supplements).
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis