Case No. 23/2007-38/2009
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF RESOLUTION OF THE GOVERNMENT OF
THE REPUBLIC OF LITHUANIA NO. 912 "ON APPROVING THE
PLANNING SCHEME OF TRAKAI HISTORICAL NATIONAL PARK"
OF 6 DECEMBER 1993 WITH THE CONSTITUTION OF THE
REPUBLIC OF LITHUANIA
9 February 2010
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, Egidijus Šileikis, and Romualdas
Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representatives of the Government of
the Republic of Lithuania, the party concerned, who were Agnė
Murauskaitė, Head of the Law Application Division of the Legal
Department of the Ministry of Environment of the Republic of
Lithuania, and Eglė Izokaitytė, the chief specialist of the said
division,
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its public
hearing on 5 February 2010 heard case No. 23/2007-38/2009
subsequent to:
1) the petition of the Supreme Administrative Court of
Lithuania, a petitioner, requesting to investigate whether
Resolution of the Government of the Republic of Lithuania No. 912
"On Approving the Planning Scheme of Trakai Historical National
Park" of 6 December 1993 is not in conflict with Paragraph 2 of
Article 7 of the Constitution of the Republic of Lithuania, the
constitutional principle of a state under the rule of law,
Article 2, Item 4 of Paragraph 1 of Article 3 and Paragraph 1 of
Article 9 of the Republic of Lithuania Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts
(wording of 7 July 2005), as well as whether the same resolution
of the Government of the Republic of Lithuania was not in
conflict with Paragraph 1 of Article 1, Item 4 of Paragraph 1 of
Article 2 and Paragraph 1 of Article 8 of the Republic of
Lithuania Law "On the Procedure of Publication and Coming into
Force of Republic of Lithuania Laws and Other Legal Acts"
(wording of 6 April 1993) (petition No. 1B-25/2007);
2) the petition of the Vilnius Regional Administrative
Court, a petitioner, requesting to investigate whether Resolution
of the Government of the Republic of Lithuania No. 912 "On
Approving the Planning Scheme of Trakai Historical National Park"
of 6 December 1993 according to the procedure of its publishing
is not in conflict with Paragraph 2 of Article 7 of the
Constitution of the Republic of Lithuania and the constitutional
principle of a state under the rule of law (petition No. 1B-50/
2009).
By the Constitutional Court Decision "On Joining Petitions
into One Case" of 23 December 2009, petition No. 1B-25/2007 (case
No. 23/07) of the Supreme Administrative Court of Lithuania and
petition No. 1B-50/2009 (case No. 38/2009) of the Vilnius
Regional Administrative Court were joined into one case and it
was given reference No. 23/2007-38/2009.
The Constitutional Court
has established:
I
1. The Supreme Administrative Court of Lithuania, a
petitioner, was investigating an administrative case. By its
ruling of 26 April 2007, the said court suspended the
consideration of the case and applied to the Constitutional Court
with a petition requesting to investigate whether Government
Resolution of No. 912 "On Approving the Planning Scheme of Trakai
Historical National Park" of 6 December 1993 (hereinafter also
referred to as Government resolution No. 912 of 6 December 1993)
is not in conflict with Paragraph 2 of Article 7 of the
Constitution, the constitutional principle of a state under the
rule of law, Article 2, Item 4 of Paragraph 1 of Article 3 and
Paragraph 1 of Article 9 of the Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts
(wording of 7 July 2005), as well as whether the same Government
resolution was not in conflict with Paragraph 1 of Article 1,
Item 4 of Paragraph 1 of Article 2 and Paragraph 1 of Article 8
of the Law "On the Procedure of Publication and Coming into Force
of Republic of Lithuania Laws and Other Legal Acts" (wording of 6
April 1993) (petition No. 1B-25/2007).
2. The Vilnius Regional Administrative Court, the
petitioner, was investigating an administrative case. By its
ruling of 7 October 2009, the said court suspended the
consideration of the case and applied to the Constitutional Court
with a petition requesting to investigate whether Government
Resolution No. 912 "On Approving the Planning Scheme of Trakai
Historical National Park" of 6 December 1993 according to the
procedure of its publishing is not in conflict with Paragraph 2
of Article 7 of the Constitution and the constitutional principle
of a state under the rule of law (petition No. 1B-50/2009).
II
The petitions of the Supreme Administrative Court of
Lithuania and the Vilnius Regional Administrative Court, the
petitioners, are substantiated by the following arguments.
Government resolution No. 912 of 6 December 1993 approved
the Planning Scheme of Trakai Historical National Park, which is
composed of the plan of the park territory with its functional
zones and the explanatory note. Subsequent to Order of the
Republic of Lithuania Ministry of Construction and Urban Planning
No. 212 "On Publishing the Planning Scheme of Trakai Historical
National Park" of 20 December 1993, not entire said scheme was
published in the official gazette "Valstybės žinios": a part of
this schemethe plan of the territory of the park with the
functional zoneshas not been announced publicly. The said order
of the Ministry of Construction and Urban Planning only specified
that it was possible to become familiarised with this plan at the
Ministry of Ministry of Construction and Urban Planning, at the
Board of the Trakai District and at the Directorate of Trakai
Historical National Park.
The Constitutional Court has held that all parts of a
normative legal act (including its appendices) constitute a
whole, they are inseparably interrelated and have equal legal
power; that it is impossible to separate the appendices form the
legal act, since when the legal regulation established in the
appendices is amended, then the entire content of the established
legal regulation is changed as well. The plan of the territory of
Trakai Historical National Park with the functional zones is an
inseparable part of the planning scheme of Trakai Historical
National Park, however, it has not been published in the official
gazette "Valstybės žinios", which is the official source of
publishing legal acts.
III
In the course of the preparation of the case for the
Constitutional Court hearing written explanations were received
from A. Murauskaitė, Head of the Law Application Division of the
Legal Department of the Ministry of Environment, and E.
Izokaitytė, the chief specialist of the same division, wherein it
was noted that the fact that the territories of the park with the
functional zones, which are a constituent part of the Planning
Scheme of Trakai Historical National Park (hereinafter also
referred to as the Scheme), was not published in the official
gazette "Valstybės žinios", the official source of publishing
legal acts, does not give grounds to assert that the requirements
for publishing legal acts as entrenched in the Constitution were
violated. The position of the representative of the party
concerned is substantiated by these arguments.
1. The legislator has been granted the right, while taking
account of the specificity of certain legal acts, to establish a
separate source and way of the publication of such legal acts, if
such legal regulation has to secure the requirements (which are
entrenched in the Constitution) of formality and publicity of
publishing legal acts, the constitutional requirement the legal
act be published in its entirety (including all its constituent
parts) and that legal acts be published in the state language
Lithuanian. While invoking the provisions of the Constitutional
Court ruling of 27 June 2007, one can draw a conclusion that at
the time of approving the Planning Scheme of Trakai Historical
National Park there were no technical possibilities to publish
the coloured scheme made from cardboard (4 mm in thickness),
whose measures were 1.6 m x 1.6 m (the scale of the main drawing
of the graphical part of the Scheme was 1 : 10 000) in the
official gazette "Valstybės žinios" (the only official source of
publishing legal acts) so that the legal subjects could decipher
it and understand its content. Thus, in the situation of
publishing the disputed document of territorial planning, the way
of publishing legal acts as established in the Law on the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts did not secure the adherence to the requirements for
publishing legal acts as entrenched in the Constitution. The non-
publishing of the plan of the territory of Trakai Historical
National Park with its functional zones in the official source of
publishing legal acts was constitutionally justifiable and was in
line with all the conditions specified in the Constitutional
Court ruling of 27 June 2007: it was announced in the official
(regular) source of publishing legal acts that by its resolution
the Government approved the Planning Scheme of Trakai Historical
National Park; it is clear from the published legal act that the
plan of the territory of Trakai Historical National Park with its
functional zones was not published in the said source; it was
specified where it was possible to familiarise oneself with the
non-published constituent part of the legal act; the access for
the legal subjects to the corresponding legal regulation is
secured in practice.
2. The Planning Scheme of Trakai Historical National Park
approved by disputed Government resolution No. 912 of 6 December
1993 is a special document of territorial planning with regard to
which the legislator, while taking account of the specific
content and extent of documents of territorial planning, had
established a separate procedure for its publishing and entry
into force, which secured the execution of publicity, formality
of legal acts and other requirements entrenched in the
Constitution. The Planning Scheme of Trakai Historical National
Park had been prepared and approved before the Republic of
Lithuania Law on Territorial Planning came into force. Upon
coming into force of the Law on Territorial Planning, the
question of the legal status of the Scheme was decided by
Government of the Republic of Lithuania Resolution No. 617 "On
Application of the Republic of Lithuania Law on Territorial
Planning to the Approved Territorial Planning Documents the
Preparation of Which was Begun and not Finished Before Coming
into Force of this Law" of 24 May 1996 (hereinafter also referred
to as Government resolution No. 617 of 24 May 1996), under Item 1
of which, the general plans, detailed plans and projects and
regeneration projects and schemes of towns (or parts thereof),
towns and villages (rural districts), projects and schemes of the
arrangement of communication and engineering infrastructure
networks and objects, projects and schemes of territorial
development, projects and schemes of lot marking and red lines,
planning schemes of state parks, land use planning and forestry
projects and other documents which provide for the conditions of
land use of the territories and development of the activity in
them, the rights and obligations of land users are territorial
planning documents, if they had been approved under the
established procedure before coming into force of the Law on
Territorial Planning. The said plans had to be registered at the
state register of territorial planning documents. The Planning
Scheme of Trakai Historical National Park was registered at the
state register of the territorial planning documents as a special
document of territorial planning, therefore, both under the Law
on Territorial Planning and the Regulations for the Register of
Territorial Planning Documents, all persons were able to
familiarise themselves with this territorial planning document
and receive all information concerning it.
3. The striving of the legislator for establishing a
separate procedure for publishing of documents of territorial
planning and their entry into force, which would secure the
publicity of publishing legal acts and other requirements
entrenched in the Constitution, is also shown by the fact that in
the course of changing the Law on Territorial Planning a special
procedure was established in order to secure publicity of
publishing territorial planning documents (Law on Territorial
Planning, wording of 7 February 2004) whereby the legislator did
not demand that a document of territorial planning be published
in the official source of publishing legal acts, whereas the
publicity of its publishing, under the legal regulation
established in the Law on Territorial Planning, had to be secured
by applying special procedures of participation of the public in
the process of drafting the documents of territorial planning, by
entering such a document into the register of documents of
territorial planning and by securing the right of all persons to
familiarise with it.
4. Realistic opportunities were created to all persons to
familiarise with the part of the legal act which had not been
published in the official gazette "Valstybės žinios": the Scheme
was registered in the register of territorial planning documents,
it was possible to familiarise with the plan at the Ministry of
Environment (at presentat the State Service for Protected Areas
under the Ministry of Environment), at the Trakai District
Municipality and the Directorate of Trakai Historical National
Park. A copy of the plan is also kept at the Ministry of Culture
of the Republic of Lithuania, whereas the electronic version of
the Scheme is available at the webpage of the Directorate of
Trakai Historical National Park (www.seniejitrakai.lt).
IV
In the course of the preparation of the case for the
Constitutional Court hearing the following was received:
- Letter of the Environment Protection Agency No. (15)-A4-
237 "Regarding the Information in Case No. 23/07" of 11 February
2008 giving the information that the Planning Scheme of Trakai
Historical National Park approved by Government resolution No.
912 of 6 December 1993 was registered in the register of
territorial planning documents and that, according to the
register of territorial planning documents, the original copy of
the said scheme is kept by the Government, while a copy of the
schemeat the State Service for Protected Areas under the
Ministry of Environment. Together with this letter an extract of
the register of territorial planning documents was sent,
confirming the information given in the letter.
- Letter of the Directorate of Trakai Historical National
Park No. S-103 "Regarding the Information in Case No. 23/07" of
12 February 2008 in which it is indicated that one of original
copies of the Planning Scheme of Trakai Historical National Park
is kept at the Directorate of Trakai Historical National Park. It
is also explained therein that the main drawing of the graphical
part of the said scheme is made from cardboard which is 4 mm in
thickness; the Scheme is composed of four parts, each of which is
0.8 x 0.8 m in size; the entire size of the Scheme is 1.6 x 1.6
m; the scale of the Scheme is 1 : 10 000; the Scheme is in
colour. It is asserted in the letter that one is able to
familiarise with an original copy of the Planning Scheme of
Trakai Historical National Park also at the Ministry of
Environment and at the Trakai District Municipality, whereas the
electronic version of the Scheme is available at the webpage of
the Directorate of Trakai Historical National Park (www.
seniejitrakai.lt).
- Letter of the Administration of the Trakai District
Municipality No. AP3-752 "Regarding the Information in Case No.
23/07" of 21 February 2008 wherein it is asserted that the
Planning Scheme of Trakai Historical National Park (either the
original, or a copy thereof) was not submitted to the Trakai
District Municipality and that the said scheme was never
available at the Trakai District Municipality and is not kept
there.
- Letter of the Directorate of Trakai Historical National
Park No. S-194 "Regarding Submission of Additional Information"
of 29 February 2008 wherein it is specified that the electronic
version of the Planning Scheme of Trakai Historical National Park
has been available at the webpage of the Directorate of Trakai
Historical National Park (www.seniejitrakai.lt) since December
2003. The Directorate of Trakai Historical National Park also
indicated that the Administration of the Trakai District
Municipality, when it submits requests to the Directorate of
Trakai Historical National Park regarding preparation of a digest
of conditions for projecting and planning, also submits extracts
of the Planning Scheme of Trakai Historical National Park. In
addition, the Administration of the Trakai District Municipality,
while executing the requirements of Article 28 of the Law on
Territorial Planning, has registered the Planning Scheme of
Trakai Historical National Park at the register of territorial
planning documents, number 110792000003.
- Letter of the Service of the Prime Minister of the
Republic of Lithuania No. 8-78/12 "Regarding Submission of
Information" of 31 December 2009 whereby copies of documents of
drafting Government resolution No. 912 of 6 December 1993 were
submitted.
- Letter of the Ministry of Culture No. S2-59 "Regarding the
Planning Scheme of Trakai Historical National Park" of 13 January
2010 wherein it is asserted that since 2000 when the functions of
the founder of Trakai Historical National Park were transferred
to the Ministry of Culture, a copy of the drawing of the Planning
Scheme of Trakai Historical National Park has been kept at the
Ministry of Culture (since September 2004at the Division of
Protected Territories and Protection of Heritage) and all those
willing were able to familiarise with the Scheme freely during
the working hours of the ministry. The copy of the drawing of the
Planning Scheme of Trakai Historical National Park kept at the
Ministry of Culture is composed of 4 sheets whose size is 870 x
817 mm.
- Letter of the State Service for Protected Areas under the
Ministry of Environment No. V3 2.8.-71 "Regarding Submission of
Information" of 15 January 2010 wherein it is indicated that the
State Service for Protected Areas under the Ministry of
Environment was founded on 1 January 2002 upon reorganisation of
the Department for Forests and Protected Territories and that
there is a diminished copy of the Planning Scheme of Trakai
Historical National Park in colour, whereas the said department
used to keep such a copy.
V
At the Constitutional Court hearing, A. Murauskaitė and E.
Izokaitytė, the representatives of the Government, the party
concerned, virtually reiterated the arguments set forth in their
written explanations and submitted additional explanations.
1. The representatives of the Government maintained that the
Planning Scheme of Trakai Historical National Park is displayed
in public at the Directorate of Trakai Historical National Park,
all persons who wish to familiarise with the said scheme have an
opportunity to do so, the plan's copies in colour and in black-
and-white as well as digital extracts of the Scheme are made.
2. As regards the keeping of the Planning Scheme of Trakai
Historical National Park at the Trakai District Municipality, the
representatives of the Government submitted information whereby
the Trakai District Municipality submits extracts of the Scheme
to the interested institutions. The representatives of the
Government also maintained that in administrative cases, inter
alia in case A-11 - 215/2007 of the Supreme Administrative Court
of Lithuania, the Trakai District Municipality refers to the
Scheme, therefore, it is to be presumed that the Trakai District
Municipality holds the Planning Scheme of Trakai Historical
National Park.
The Constitutional Court
holds that:
I
1. In the constitutional justice case at issue one disputes
the compliance of the Government resolution, whereby the Planning
Scheme of Trakai Historical National Park was approved, with the
Constitution and with corresponding articles (parts thereof) of
the Law "On the Procedure of Publication and Coming into Force of
Republic of Lithuania Laws and Other Legal Acts" (wording of 6
April 1993 with subsequent amendments and supplements), which, as
from 1 January 2003, is titled as the Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts.
2. On 23 April 1991, the Supreme Council of the Republic of
Lithuania adopted Resolution No. I-1244 "On Establishing of
Dzūkija, Curonian Spit and Žemaitija National Parks, Trakai
Historical National Park and Viešvilė State Nature Reserve" which
came into force on 1 May 1991. The said resolution, while seeking
"to preserve the most valuable Lithuanian landscape complexes and
ethno-cultural heritage for the people of Lithuania and for the
future generations", inter alia established: "To establish the
national parks and the state reserve (according to the prepared
schemes) which are provided for in the Complex Nature Protection
Scheme of the Republic of Lithuania: <
> Trakai Historical
National Parkarea of 8 thousand ha" (Sub-item 4 of Item 1); "To
commission the Government of the Republic of Lithuania, upon
submission of the Department of Environmental Protection of the
Republic of Lithuania and the Inspectorate of Cultural Heritage
<
> before 1 November 1991 to approve <
> the Regulations for
Trakai Historical National Park <
>" (Sub-item 1 of Item 2).
3. On 22 April 1992, the Government adopted Resolution No.
283 "On Approving the Provisional Regulations for Dzūkija,
Curonian Spit and Žemaitija National Parks and Trakai Historical
National Park and the Regulations for Viešvilė State Nature
Reserve", Item 1 of which approved inter alia the Provisional
Regulations for Trakai Historical National Park. This Government
resolution came into force on 22 April 1992.
Section 3 of Item 2 of the said provisional regulations
(wording of 22 April 1992) prescribed: "The territory of Trakai
Historical National Park shall be managed under the planning
scheme of this park approved by the Government and the projects
(prepared on the basis of this scheme and co-ordinated under
established procedure) concerning land management, forest
management, water management, settlements' planning, regeneration
of villages, recreation, roads and engineering communications as
well as other projects."
4. On 6 December 1993, the Government adopted Resolution No.
912 "On Approving the Planning Scheme of Trakai Historical
National Park" whose compliance with the Constitution and with
corresponding articles (parts thereof) of the Law "On the
Procedure of Publication and Coming into Force of Republic of
Lithuania Laws and Other Legal Acts" (wording of 6 April 1993
with subsequent amendments and supplements) (which, as from 1
January 2003, is titled as the Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts)
is disputed in the constitutional justice case at issue. This
Government resolution came into force on 11 December 1993.
4.1. Government resolution No. 912 of 6 December 1993
(wording of 6 December 1993) prescribed:
"The Government of the Republic of Lithuania shall resolve:
1. To approve the Planning Scheme of Trakai Historical
National Park (the plan of the park territory with its functional
zones and the explanatory note) submitted by the Department for
Monument Maintenance under the Ministry of Construction and Urban
Planning.
2. To commission the State Institute for Land Management to
mark the limits of the zones of Trakai Historical National Park
in the plans of land utilisation and in the plans of land
management in the land reform, as well as to compute the area of
these zones."
4.2. This Government resolution approved the Planning Scheme
of Trakai Historical National Park, which is composed of the plan
of the territory of the park with the functional zones (the
graphical part of the Scheme) and the explanatory note (the
textual part of the Scheme).
On 10 December 1993, only the Government resolution was
published in the official gazette "Valstybės žinios", whereas the
annexes approved by the said resolution were not printed.
On 4 February 1994, Order of the Ministry of Construction
and Urban Planning No. 212 "On Publishing the Planning Scheme of
Trakai Historical National Park" of 20 December 1993 was
published in the official gazette "Valstybės žinios", wherein it
was established: "To publish the Planning Scheme of Trakai
Historical National Park (the plan of the park territory with its
functional zones and the explanatory note) approved by Government
Resolution No. 912 'On Approving the Planning Scheme of Trakai
Historical National Park' of 6 December 1993."
The said order contained the following remark: "The plan
shall not be published. It is possible to familiarise with it at
the Ministry of Ministry of Construction and Urban Planning, at
the Board of the Trakai District and at the Directorate of Trakai
Historical National Park."
Thus, the graphical part of the Scheme (the plan of the
territory of the park with the functional zones) was not printed,
and only the textual part of the Scheme titled "The Planning
Scheme of Trakai Historical National Park" was published.
In this textual part of the Scheme the purposes of the
founding of this park as well as the structure of the Scheme and
its role in the legal regulation of the management of Trakai
Historical National Park are explained, the general principles of
planning and managing Trakai Historical National Park are
established, the zones of the park, the purposes of their
establishment, the utilisation and management as well as
development of these zones are defined, as well as the detail
programme (chart) of the most important projecting work for 1994-
1997 necessary in order to carry out the tasks and implement
concrete measures of Trakai Historical National Park is
presented.
5. On 4 April 2000, the Government adopted Resolution No.
388 "On Approving the Regulations for Trakai Historical National
Park" which came into force on 13 April 2000. By Item 1 of this
Government resolution the Regulations for Trakai Historical
National Park were approved, whereas by Item 5 of the same
resolution Government Resolution No. 283 "On Approving the
Provisional Regulations for Trakai Historic National Park" (Item
5.1) and Government Resolution No. 239 "On Partial Amendment of
the Provisional Regulations for Trakai Historical National Park"
of 13 February 1995 (Item 5.2) were recognised as no longer
valid.
Item 3 of the Regulations for Trakai Historical National
Park prescribed that the territory of the national park shall be
protected, managed and utilised in pursuance with the planning
scheme approved by Government resolution No. 912 of 6 December
1993, and with the territorial planning documents prepared on the
basis of this scheme and co-ordinated and approved under
established procedure.
6. On 28 May 2002, the Government adopted Resolution No. 760
"On Granting the Right of Land Possession to the Directorate of
Trakai Historical National Park and on Amending Resolution of the
Government of the Republic of Lithuania No. 912 of 6 December
1993 and Resolution of the Government of the Republic of
Lithuania No. 69 of 11 January 1996", which came into force on 1
June 2002. This Government resolution inter alia granted the
right to the Directorate of Trakai Historical National Park to
possess a 78.65-hectare land plot in the territory of the
homestead of the former Užtrakis manor (Item 1) and
correspondingly amended Sub-item 2.3 of Item 2 "Sanctuaries" of
Section I "The Conservation Zone" of the Chapter "The Zones of
Trakai Historical National Park" of the Scheme (Item 2).
On 21 October 2004, the Government adopted Resolution No.
1323 "On Amending Resolution of the Government of the Republic of
Lithuania No. 912 'On Approving the Planning Scheme of Trakai
Historical National Park' of 6 December 1993", which came into
force on 27 October 2004. By this resolution the Scheme was
partially amended and supplemented: Item 3 of Section III "The
Recreation Zone" of the Chapter "The Zones of Trakai Historical
National Park" was amendedit was provided to create new
recreation zones, whereas Annex 3 "Establishments of Rest and
Utilisation Thereof" of the Scheme was supplemented with the
Chart "New Establishments of Rest under Construction in the
Territory of Trakai Historical National Park".
7. On 31 March 1992 (when the accession document was
deposited with the Director-General of the United Nations
Educational, Scientific and Cultural Organisation (UNESCO)), the
Republic of Lithuania joined the Convention Concerning the
Protection of the World Cultural and Natural Heritage
(hereinafter referred to as the Convention) which was adopted on
16 November 1972 in Paris. In the Republic of Lithuania the
Convention came into force on 30 June 1992. Joining to the
Convention, the Republic of Lithuania took the obligation to
protect the cultural and natural heritage on its territory and
acquired the right to propose that properties in its territory be
inscribed in the UNESCO World Heritage List.
In 2002, UNESCO experts, while in Lithuania, paid attention
to the properties of Trakai Historical National Park, which
received their favourable evaluation, and recommended to prepare
for the nomination of this Lithuanian object for the UNESCO World
Heritage List. At the Conference "The Trakai Historical National
Parkon the UNESCO World Heritage Liststhe Need and
Opportunities" held on 3-4 April 2003 in Lithuania a resolution
was adopted wherein it was inter alia held that "Taking into
consideration the exclusive comprehensive value of landscape, the
Trakai Historical National Park could be nominated to the World
Heritage List of Mixed Properties" and it was decided to ask "the
Ministry of Culture to approve the inscription of the Trakai
Historical National Park in World Heritage List of Mixed
Properties, to approve by an order a working group and delegate
it with a task of preparing within the established terms the
submission of the Trakai Historical National Park to the World
Heritage Committee and allocate funds, necessary for this
purpose".
On 28 July 2003, upon submission by the Ministry of Culture
of the Republic of Lithuania, Trakai Historical National Park was
included into the tentative list of the UNESCO World Heritage
List (category of propertiesmixed).
8. Thus, the State of Lithuania has treated and treats
Trakai and its environs as a unique complex of landscape created
by nature and man, as a territory, which must be protected and
with whose regard a special legal regime must be created; this is
a universally known fact.
9. In the context of the constitutional justice case at
issue it also needs to be emphasised that, as mentioned, a
principled provision was entrenched in the Regulations for Trakai
Historical National Park approved by Government Resolution No.
388 "On Approving the Regulations for Trakai Historical National
Park" of 4 April 2000 whereby Trakai Historical National Park is
managed in pursuance with the planning scheme of Trakai
Historical National Park, which is approved by the Government.
Thus, any decisions related to administering the territory
of Trakai Historical National Park (inter alia with detailed
plans of settlements, forest management, land management, water
management, regeneration of villages, recreation, roads and
engineering communications etc.) could not (and cannot) be
adopted without taking account of the said Scheme approved by the
Government and could not (and cannot) be in conflict with
solutions of the Scheme. If one disregarded these solutions,
especially being aware of the fact that the State of Lithuania
treats Trakai and its environs as a unique complex of landscape
created by nature and man, as a territory, which must be
protected and with whose regard a special legal regime must be
created, and that this is a universally known fact, then the
general principle of law bona fides would be disregarded as well.
Otherwise, not only the identity and integrity of Trakai
Historical National Park as a unique complex of landscape created
by nature and man, as a territory, which must be protected, would
be violated, but also the imperatives of Articles 53 and 54 of
the Constitution, inter alia the provision of Paragraph 1 of
Article 54 of the Constitution that the state shall take care of
the protection of the natural environment, wildlife and plants,
individual objects of nature and areas of particular value and
shall supervise a sustainable use of natural resources, their
restoration and increase, and the provision of Paragraph 3 of
Article 53 thereof that the state and each person must protect
the environment from harmful influences, would be breached.
10. On the other hand, the requirement arising from the
Constitution to preserve Trakai Historical National Park does not
mean that institutions of the State of Lithuania are allowed to
disregard the provisions of the Constitution, inter alia the
constitutional concept of official and public publishing of legal
acts, when these institution regulate, by means of legal acts and
within their competence, the relations related to administering
the territory of Trakai Historical National Park (inter alia with
detailed plans of settlements, forest management, land
management, water management, regeneration of villages,
recreation, roads and engineering communications etc.).
II
1. It has been mentioned that in this constitutional justice
case one disputes the compliance of Government resolution No. 912
of 6 December 1993, whereby the Planning Scheme of Trakai
Historical National Park was approved, with Paragraph 2 of
Article 7 of the Constitution and with the constitutional
principle of a state under the rule of law according to the
procedure of publishing of the said resolution, i.e. one disputes
not content of the said Government resolution and that of the
Scheme approved by the said resolution, but the fact that not the
entire Scheme was published in the official gazette "Valstybės
žinios" (the graphical part of the Scheme was not published
therein).
2. It needs to be noted that, on 27 June 2007, the
Constitutional Court adopted the Ruling "On the compliance of the
Republic of Lithuania Law 'On the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts of the Republic of
Lithuania' (wording of 6 April 1993) and Government of the
Republic of Lithuania Resolution No. 1269 'On the Planning Scheme
(General Plan) of Curonian Spit National Park' of 19 December
1994 (wording of 19 December 1994) with the Constitution of the
Republic of Lithuania".
In the said constitutional justice case the Constitutional
Court recognised that the Republic of Lithuania Law "On the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts of the Republic of Lithuania" (wording of 6 April
1993) (Official Gazette Valstybės žinios, 1993, No. 12-296), to
the extent that it did not establish that the legal acts (parts
thereof) of especially large size and complex structure, inter
alia such which include graphic parts of especially large size,
regarding the publication of which very big technical problems
would appear, could officially be published not in the official
gazette "Valstybės žinios", but in other sources and/or in other
ways, as well as to the extent that it did not establish that the
said legal acts (parts thereof) of especially large size and
complex structure, even if it is required to officially announce
them in the official gazette "Valstybės žinios", could be
officially published in special editions of the official gazette
"Valstybės žinios", was in conflict with Paragraph 2 of Article 7
of the Constitution and with the constitutional principle of a
state under the rule of law. The Constitutional Court also
recognised that Government Resolution No. 1269 "On the Planning
Scheme (General Plan) of Curonian Spit National Park" of 19
December 1994 (wording of 19 December 1994) (Official Gazette
Valstybės žinios, 1994, No. 99-1977), as regards the procedure of
its publishing, was not in conflict with the Constitution.
3. In the constitutional justice case wherein the
aforementioned ruling was adopted one decided the issue of the
compliance of the Planning Scheme of Curonian Spit National Park,
according to the procedure of its publishing, with the
Constitution. In the constitutional justice case at issue the
compliance of Government Resolution No. 912 "On Approving the
Planning Scheme of Trakai Historical National Park" of 6 December
1993 is disputed virtually in the same aspectthat the graphical
part of the Scheme was not published in the official gazette
"Valstybės žinios", the official source of publishing legal acts.
4. It has been established in the constitutional justice
case at issue that the Scheme is composed not only of the textual
part, but also the graphical part (not only written text, but
also drawings etc.) which is in colour; the main drawing of the
graphical part of the said scheme is made from cardboard which is
4 mm in thickness; each four parts of the Scheme are 80 x 80 cm
in size; the entire size of the Scheme is 160 x 160 cm (Letter of
the Directorate of Trakai Historical National Park No. S-103
"Regarding the Information in Case No. 23/07" of 12 February
2008). This scheme was approved by the Government resolution in
1993.
Taking account of all this, one is to note that in its
format the graphical part of the Planning Scheme of Trakai
Historical National Park is similar to the graphical part of the
Planning Scheme of Curonian Spit National Park (drawings of the
size 51.5 x 226 cm, 51 x 221 cm, 59.5 x 100 cm, 43 x 123 cm, 43 x
161.5 cm, 59.5 x 167 cm, 59.5 x 171 cm, 59 x 189.5 cm, 59 x 207
cm etc.). In addition, as mentioned, the Planning Scheme of
Trakai Historical National Park was approved in 1993, i.e. even
earlier than the Planning Scheme of Curonian Spit National Park,
which was approved by a Government resolution in 1994.
5. Under the Constitution, rulings of the Constitutional
Court are final and not subject to appeal, they are obligatory to
everyone, whereas under Paragraph 7 of Article 34 of the Law on
Constitutional Court, facts which were established by a ruling of
the Constitutional Court in one case shall not be proved again in
the consideration of other cases.
The factual circumstances established in previous cases of
the Constitutional Court are res iudicata; these factual
circumstances are not established and proven anew in new cases
(Constitutional Court conclusion of 31 March 2004).
The Constitutional Court has held that the legal position of
the Constitutional Court (ratio decidendi) in the corresponding
constitutional justice cases has the significance of the
precedent (Constitutional Court ruling of 22 October 2007).
6. While taking account of the fact that in their format the
graphical parts of the planning schemes of Curonian Spit National
Park and Trakai Historical National Park are similar, also while
taking account of the fact that in both cases the matter of
investigation is analogous (the compliance of the Government
resolutions whereby the planning schemes of corresponding
protected territories were approved with the Constitution,
according to the procedure of the adoption of these resolutions),
one is to invoke the factual circumstances established in the
previous constitutional justice case (regarding the Planning
Scheme of Curonian Spit National Park) which are related with the
practice and technical possibilities of publishing legal acts and
the procedure for informing the public about territorial planning
documents. One is also to invoke the conclusions made in the
Constitutional Court ruling of 27 June 2007 regarding the then
valid legal regulation related to planning of territories,
informing the public about the process of planning of
territories, the procedure of publishing of legal acts, inter
alia territorial planning documents, and the summarised previous
and newly formed constitutional doctrine.
7. In the aforesaid constitutional justice case regarding
the Planning Scheme of Curonian Spit National Park the
Constitutional Court inter alia established these factual
circumstances:
- in December 1994, at the time when the Planning Scheme of
Curonian Spit National Park was approved by the Government,
Government resolutions were officially published in the official
gazette "Valstybės žinios", which was printed by the JSC "Spauda
";
- in 1994, in Lithuania, it was in general technically
possible to print such document as the Planning Scheme (General
Plan) of Curonian Spit National Park, however, it would have been
difficult inter alia to ensure the integrity of such document;
- publishing the Planning Scheme of Curonian Spit National
Park namely in the official gazette "Valstybės žinios", in its
entirety (all its constituent parts) in such size, in which the
Scheme was approved by the Government, and in such edition and
size, in which at that moment the official gazette "Valstybės
žinios" was printed, without losing the informational value
(clarity, quality, etc.) of the Planning Scheme of Curonian Spit
National Park, was virtually impossible at that time (in 1994)
and for a long time afterwards due to the lack of technical
possibilities;
- at that time (i.e. in 1994), the possibilities of
computers in Lithuania were especially limited (little memory,
slowness, limited network, etc.), thus, it was difficult to
provide the users with maps, graphics, pictures, etc. on the
Internet; the technical possibilities to prepare such drawings as
a digital version of the Planning Scheme of Curonian Spit
National Park and to put in on the Internet appeared
approximately in 1996-1998; the technical possibilities to
replicate such documents in a digital format increased in 1996,
when the state land cadastre enterprise purchased a black-and-
white scanner and the sufficient technical possibilities appeared
in 1998, when the SE Distance Research and Geoinformatics Centre
"GIS-Centras" purchased the first colour scanner.
8. In its ruling of 27 June 2007, the Constitutional Court
held that in December 1994 and for quite a while afterwards,
virtually there were no technical possibilities to publish the
Planning Scheme of Curonian Spit National Park namely in the
official gazette "Valstybės žinios" (and in such edition and
size, in which at that moment the official gazette "Valstybės
žinios" was printed and in which, pursuant to the Law "On the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts of the Republic of Lithuania" (wording of 6 April
1993), Government resolutions had to be published officially) in
its entirety (all the constituent parts of the said scheme) in
such size in which that scheme was approved by the Government,
i.e. without losing the information value (clarity, quality,
etc.) of the scheme.
9. On the grounds of these circumstances, which are res
iudicata in the context of the constitutional justice case at
issue, it needs to be held that virtually there were no technical
possibilities to publish the Planning Scheme of Trakai Historical
National Park (approved in 1993) namely in the official gazette
"Valstybės žinios" (and in such edition and size, in which at
that moment the official gazette "Valstybės žinios" was printed
and in which, pursuant to the Law "On the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts of
the Republic of Lithuania" (wording of 6 April 1993), Government
resolutions had to be published officially) in its entirety (all
the constituent parts of the said scheme) in such size in which
that scheme was approved by the Government, i.e. without losing
the information value (clarity, quality, etc.) of the scheme.
10. While deciding in the constitutional justice case at
issue whether Government Resolution No. 912 "On Approving the
Planning Scheme of Trakai Historical National Park" of 6 December
1993 was not in conflict with the Constitution, the following was
established:
- the original of the Scheme is kept at the Directorate of
Trakai Historical National Park, whereas the electronic version
of the Scheme has been available at the internet webpage of the
Directorate of Trakai Historical National Park (www.
seniejitrakai.lt) since December 2003 (Letter of the Directorate
of Trakai Historical National No. S-103 "Regarding the
Information in Case No. 23/07" of 12 February 2008 and Letter No.
S-194 "Regarding Submission of Additional Information" of 29
February 2008);
- copies of the Scheme are kept at the Ministry of Culture
(Letter of the Ministry of Culture No. S2-59 "Regarding the
Planning Scheme of Trakai Historical National Park" of 13 January
2010, explanations of A. Murauskaitė and E. Izokaitytė, the
representatives of the party concerned) and at the State Service
for Protected Areas under the Ministry of Environment; the Scheme
is registered in the register of territorial planning documents
(Letter of the Environment Protection Agency No. (15)-A4-237
"Regarding the Information in Case No. 23/07" of 11 February 2008
together with an extract of the register of territorial planning
documents, Letter of the State Service for Protected Areas under
the Ministry of Environment No. V3 2.8.-71 "Regarding Submission
of Information" of 15 January 2010);
- it is possible to familiarise with the plan of the
territory of Trakai Historical National Park with its functional
zones (or a copy thereof) at the Directorate of Trakai Historical
National Park, at the Ministry of Culture, at the Ministry of
Environment (at presentat the State Service for Protected Areas
under the Ministry of Environment), whereas the electronic
version of the Scheme is available at the internet webpage of the
Directorate of Trakai Historical National Park (www.
seniejitrakai.lt) (explanations of A. Murauskaitė and E.
Izokaitytė, the representatives of the party concerned, Letter
of the Ministry of Culture No. S2-59 "Regarding the Planning
Scheme of Trakai Historical National Park" of 13 January 2010);
the Planning Scheme of Trakai Historical National Park is
displayed in public at the Directorate of Trakai Historical
National Park, all persons who wish to familiarise with the said
scheme have an opportunity to do so, the plan's copies in colour
and in black-and-white as well as digital extracts of the Scheme
are made (explanations of A. Murauskaitė and E. Izokaitytė, the
representatives of the party concerned, at the judicial hearing).
11. It is asserted in Letter of the Administration of the
Trakai District Municipality No. AP3-752 "Regarding the
Information in Case No. 23/07" of 21 February 2008 that the
Scheme has never been available at the Trakai District
Municipality and is not kept there. At the time of the
consideration of the case, it was established that the Trakai
District Municipality submits extracts of the Scheme to the
interested institutions, and that in administrative cases, inter
alia in case A11 - 215/2007 of the Supreme Administrative Court
of Lithuania, the Trakai District Municipality refers to the
Scheme (explanations of A. Murauskaitė and E. Izokaitytė, the
representatives of the party concerned, at the judicial hearing).
12. In the constitutional justice case at issue it has also
been established that in the course of issuance of conditions for
detailed planning at Trakai Historical National Park one always
refers to the Scheme, that the Administration of the Trakai
District Municipality, when it submits requests to the
Directorate of Trakai Historical National Park and the Vilnius
Region Environment Protection Department regarding conditions for
preparation of planning documents, also submits extracts of the
graphical part of the Planning Scheme of Trakai Historical
National Park and indicates this in the description of annexes to
the requests (Letter of the Directorate of Trakai Historical
National Park No. S-194 "Regarding Submission of Additional
Information" of 29 February 2008 and Letter of the Ministry of
Environment No. (16-1)-D8-265 "Regarding Submission of
Information" of 11 January 2010 with attached copies of requests
of the Administration of the Trakai District Municipality
regarding the conditions for preparation of planning documents
and copies of extracts of the graphical part of the Scheme). It
was not found that in the course of issuing conditions for
detailed planning (at Trakai Historical National Park) there were
any legal disputes as regards the accessibility of the Scheme to
legal subjects or as regards the authenticity of the content of
the Scheme.
Thus, even though not the entire Scheme was published in the
official gazette "Valstybės žinios" (only the textual part
thereof was published in the official gazette "Valstybės
žinios"), it has been recognised that the Scheme is valid in its
entirety, the original (copies) of this Scheme has (have) been
kept at respective institutions, it has been accessible for
familiarisation, in case it was necessary copies and extracts of
the Scheme were made, the Scheme has been used in the course of
preparation of planning documents.
III
1. As mentioned, in the constitutional justice case at issue
it is requested to investigate the compliance of the way how
Government resolution No. 912 of 6 December 1993 (part thereof)
was published, but not what was established in this Government
resolution, with the Constitution, namely with Paragraph 2 of
Article 7 thereof which provides that only laws which are
published shall be valid, and with the constitutional principle
of a state under the rule of law.
2. In its ruling of 27 June 2007, while deciding an
analogous constitutional dispute (regarding the Planning Scheme
of Curonian Spit National Park), the Constitutional Court held:
- laws are not valid and may not be applied unless they are
officially promulgated; the law must establish the procedure of
publication of the laws and the source of information in which
the laws must be published; the official publication of laws in
pursuance with the procedure established in the Constitution and
laws is a necessary condition so that laws be valid and that
subjects of legal relations should know as to what laws are
valid, what their content is, and that they might follow these
laws; there may not be not published laws in a democratic state
under the rule of law; laws must be published publicly;
- under the Constitution, the legal acts must be officially
published following the procedure of their official publishing,
which is established namely at the moment when they are issued;
- taking account of the constitutional requirement that law
may not be non-public, the notion "laws" which is employed in
Paragraph 2 of Article 7 of the Constitution should not be
construed only literallyit should be construed in an expanding
manner, as a notion that includes not only legal acts, which have
the power of the law, but also other legal acts;
- Government resolutions, as well as other legal acts, may
differ according to the form, contents, structure, size, may have
various constituent parts (annexes); the legal act may include
not only the textual, but also graphical parts (tables, drawings,
schemes, plans, cartograms, symbols, emblems, etc.); all parts of
a normative legal act (as well as annexes) constitute a whole,
they are inseparably connected and have equal legal power; the
annexes may not be separated from a legal act because, upon
changing the legal regulation established therein, the entire
content of the legal regulation established in the legal act is
changed; the whole legal act with all its constituent parts must
be published;
- the official public publishing of the whole legal act is
not an end in itselfit is necessary so that the subjects of law
would know what the corresponding legal act is, would be able to
familiarize themselves with the whole legal act and to follow it;
the legislator must establish by the law such legal regulation
related to the official publishing of the legal acts that the
legal acts would be accessible for all subjects of law; while
doing so, the legislator has broad discretion: upon taking
account of the contents, peculiarities and variety of the legal
acts, as well as other circumstances, he may establish various
sources and ways of official publishing of the legal acts; while
establishing the sources and ways of the official publishing of
legal acts, the legislator has to take account of the technical
possibilities to publish the legal acts in a certain way; the
fast technological development determines the dynamism of the
legal acts regulating corresponding social relations, electronic
communications and telecommunications are undergoing fast
development, the opportunities to seek, obtain and disseminate
information by making use of electronic information technologies,
inter alia the Internet, are constantly expanding, therefore, it
is necessary that legislation not get behind with the progress of
information technologies and with changes in respective social
relations which are determined by such progress; these provisions
are mutatis mutandis applicable also to the publishing of legal
acts;
- in the cases when legal acts include not only the textual
(written), but also the graphical (drawings, etc.) parts,
especially if these legal acts are of large size and complex
structure and there appear big technical problems regarding the
publication of their graphical part (printing, replicating) (as
well as if the expenses of its publication (printing,
replicating) are groundlessly big (taking account of the
financial capabilities of the state, as well as of the fact to
what circle of subjects of law the legal regulation establishes
the rights and duties)), one may establish by the law such
procedure of official publishing of these legal acts which
differs from the general (usual) official procedure of publishing
of the legal acts which are composed only of the written text; in
itself, the Constitution does not prohibit it; the law may
establish that the graphical part (or certain parts thereof) of
such legal acts shall be officially published separately from the
textual part (in a different source), as well as that the
graphical part (or certain parts thereof) shall be officially
published in a different way than the textual part;
- also in the cases when the graphical part of the legal act
is published separately from the textual part (in a different
source) and/or in a different way than the textual part, one must
follow the requirements of publicity and formality of publishing
of the legal acts which stem from the Constitution, as well as
one must ensure that due to the separate publication of the
textual and the graphical part of the legal acts, no
preconditions would appear to question the authenticity of their
contents: first of all, it is necessary that by following the
general (usual) procedure of official publishing of the legal
acts in the corresponding source one would announce that the
corresponding legislative decision has been adopted regarding a
certain question; second, it should be clear from the legal acts
published in this source that a certain constituent part
(constituent parts) of this legal act has (have) not been
published therein; third, it should be clear where one can
familiarize himself with the constituent part (constituent parts)
of the legal act, which was (were) not published in the said
source; and, fourth, one should ensure in practice the
accessibility of the corresponding part of the legal act (thus,
also all the legal act as a whole) to the subjects of law,
moreover, no grounded doubts regarding the authenticity of the
contents of the constituent part (constituent parts) of the legal
act which was (were) not published in the said source should
arise for those subjects of law; if these conditions are
followed, and, certainly, if the non-publishing of a certain
constituent part (constituent parts) of the legal act may be
constitutionally grounded, in itself there will be no grounds to
state that a certain legal act is "non-published" or that it is
"published" not publicly, not officially, i.e. not meeting the
requirements of Paragraph 2 of Article 7 of the Constitution, and
not heeding the constitutional principle of a state under the
rule of law; such ensuring (in the specified cases) of the
possibilities to familiarize oneself with the contents of the
constituent part (constituent parts) of the legal act which was
(were) not published in the said source, thus, also of all the
legal act as a whole, if there are enough solid reasons for that,
in itself does not give grounds to question the compliance of the
corresponding legal act with the Constitution.
IV
On the compliance of Government Resolution No. 912 "On
Approving the Planning Scheme of Trakai Historical National Park"
of 6 December 1993 with Paragraph 2 of Article 7 of the
Constitution, the constitutional principle of a state under the
rule of law, Article 2, Item 4 of Paragraph 1 of Article 3 and
Paragraph 1 of Article 9 of the Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts
(wording of 7 July 2005), and with Paragraph 1 of Article 1, Item
4 of Paragraph 1 of Article 2 and Paragraph 1 of Article 8 of the
Law "On the Procedure of Publication and Coming into Force of
Republic of Lithuania Laws and Other Legal Acts" (wording of 6
April 1993).
1. It has been mentioned that in the constitutional justice
case at issue one disputes the compliance of Government
resolution No. 912 of December 1993, whereby the Planning Scheme
of Trakai Historical National Park was approved, inter alia with
corresponding articles (parts thereof) of the Law "On the
Procedure of Publication and Coming into Force of Republic of
Lithuania Laws and Other Legal Acts" (wording of 6 April 1993
with subsequent amendments and supplements), which, as from 1
January 2003, is titled as the Law on the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts.
One is disputing not something that is established in this
Government resolution, i.e. not the content of this Government
resolution and that of the Scheme approved by the same
resolution, but one is disputing the way of publishing this
Government resolution (part thereof), namely that the Scheme,
according to the petitioner, was not published in the official
gazette "Valstybės žinios", the official source of publishing
legal acts.
2. It has been mentioned that, under the Constitution, the
legal acts must be officially published following the procedure
of their official publishing, which is established namely at the
moment when they are issued.
Therefore, although the Supreme Administrative Court of
Lithuania, a petitioner, requests to investigate whether the
disputed Government resolution (part thereof) is not in conflict,
according to the procedure of its publishing, not only with
corresponding articles (parts thereof) of the Law "On the
Procedure of Publication and Coming into Force of Republic of
Lithuania Laws and Other Legal Acts" (wording of 6 April 1993),
but also with corresponding articles (parts thereof) of the Law
on the Procedure of Publication and Coming into Force of Laws and
Other Legal Acts (this is the title of the Law "On the Procedure
of Publication and Coming into Force of Republic of Lithuania
Laws and Other Legal Acts" (wording of 6 April 1993 with
subsequent amendments and supplements) employed since 1 January
2003)) which are set forth in the wording of 7 July 2005, the
Constitutional Court will not investigate whether the disputed
Government resolution (part thereof) is not in conflict with the
articles (parts thereof) (set forth in the wording of 7 July
2005) of the Law on the Procedure of Publication and Coming into
Force of Laws and Other Legal Acts in the constitutional justice
case at issue.
3. At the time of the adoption of the disputed Government
resolution the Law "On the Procedure of Publication and Coming
into Force of Republic of Lithuania Laws and Other Legal Acts"
(wording of 6 April 1993) provided for a single official source
of publishing Government resolutionsthe official gazette
"Valstybės žinios". The Law "On the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts of the Republic of
Lithuania" (wording of 6 April 1993) did not include any
provisions that the legal acts (parts thereof) of especially
large size and complex structure, inter alia such which include
graphical parts (drawings, tables, graphs, schemes, maps, etc.)
of especially large size, regarding the publication of which very
big technical problems would appear, could officially be
published not in the official gazette "Valstybės žinios", but in
other sources and/or in other ways. Neither did this law include
any provisions that the said legal acts (parts thereof) of
especially large size and complex structure, even if it is
required to officially announce them in the official gazette
"Valstybės žinios", could be officially published in the special
editions of the official gazette "Valstybės žinios", the
circulation of which, taking account of various circumstances,
could be smaller than the usual circulation of the official
gazette "Valstybės žinios", and that its size could differ from
the usual size of the official gazette "Valstybės žinios".
3.1. In its ruling of 27 June 2007 the Constitutional Court
held that "the non-establishment of such differentiated legal
regulation is constitutionally groundless as it does not comply
with the concept of the official public publishing of the
constitutional legal acts which is enshrined inter alia in
Paragraph 2 of Article 7 of the Constitution which, together with
the constitutional principle of a state under the rule of law,
implies the necessity to establish the differentiated legal
regulation of the official publishing of the Government
resolutions (and other legal acts)". It was also held in the same
Constitutional Court ruling that the overall legal regulation
established in the Law "On the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts of the Republic of
Lithuania" (wording of 6 April 1993), in this aspect, was
deficient, constitutionally groundless.
3.2. The Constitutional Court ruling of 27 June 2007
recognised that the Law "On the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts of the Republic of
Lithuania" (wording of 6 April 1993), to the extent that it did
not establish that the legal acts (parts thereof) of especially
large size and complex structure, inter alia such which include
graphical parts of especially large size, regarding the
publication of which very big technical problems would appear,
could officially be published not in the official gazette
"Valstybės žinios", but in other sources and/or in other ways, as
well as to the extent that it did not establish that the said
legal acts (parts thereof) of especially large size and complex
structure, even if it is required to officially announce them in
the official gazette "Valstybės žinios", could be officially
published in special editions of the official gazette "Valstybės
žinios", was in conflict with Paragraph 2 of Article 7 of the
Constitution and with the constitutional principle of a state
under the rule of law.
3.2.1. It was noted in the Constitutional Court ruling that
namely these provisions of Paragraph 1 of Article 1, Item 4 of
Paragraph 1 of Article 2 and Paragraph 1 of Article 8 of the Law
"On the Procedure of Publication and Coming into Force of Laws
and Other Legal Acts of the Republic of Lithuania" (wording of 6
April 1993) because of which the compliance of Government
Resolution No. 1269 "On the Planning Scheme (General Plan) of
Curonian Spit National Park" of 19 December 1994 was disputed,
reflected the deficiency and constitutional unreasonableness of
the overall legal regulation which was established in this law.
It was also noted that this statement may not be interpreted as
meaning that, purportedly, only the specified provisions of
Paragraph 1 of Article 1, Item 4 of Paragraph 1 of Article 2 and
Paragraph 1 of Article 8 of this law reflected the deficiency and
constitutional unreasonableness of the overall legal regulation
which is established in the Law "On the Procedure of Publication
and Coming into Force of Laws and Other Legal Acts of the
Republic of Lithuania" (wording of 6 April 1993).
3.2.2. Having held that the Law "On the Procedure of
Publication and Coming into Force of Laws and Other Legal Acts of
the Republic of Lithuania" (wording of 6 April 1993), to the
extent that it did not establish that the legal acts (parts
thereof) of especially large size and complex structure, inter
alia such which include graphical parts (drawings, tables,
graphs, schemes, maps, etc.) of especially large size, regarding
the publication of which very big technical problems would
appear, could officially be published not in the official gazette
"Valstybės žinios", but in other sources and/or in other ways, as
well as to the extent that it did not establish that the said
legal acts (parts thereof) of especially large size and complex
structure, even if it is required to officially announce them in
the official gazette "Valstybės žinios", could be officially
published in the special editions of the official gazette
"Valstybės žinios", the circulation of which, taking account of
various circumstances, could be smaller than the usual
circulation of the official gazette "Valstybės žinios", and whose
size could differ from the usual size of the official gazette
"Valstybės žinios", was in conflict with Paragraph 2 of Article 7
of the Constitution and with the constitutional principle of a
state under the rule of law, as well as upon stating that the
provisions of Paragraph 1 of Article 1, Item 4 of Paragraph 1 of
Article 2 and Paragraph 1 of Article 8 of this law reflected the
deficiency and constitutional unreasonableness of the overall
legal regulation which is established in the Law "On the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts of the Republic of Lithuania" (wording of 6 April
1993), the Constitutional Court did not investigate whether the
said Government resolution was not in conflict with Paragraph 1
of Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph 1
of Article 8 of the Law "On the Procedure of Publication and
Coming into Force of Laws and Other Legal Acts of the Republic of
Lithuania" (wording of 6 April 1993).
4. One of essential elements of the constitutional principle
of a state under the rule of law is the principle that one should
not apply a legal act which is in conflict with a legal act of
higher power.
While taking account of the fact that the Constitutional
Court ruling of 27 June 2007 recognised that the Law "On the
Procedure of Publication and Coming into Force of Laws and Other
Legal Acts of the Republic of Lithuania" (wording of 6 April
1993), to the extent that it did not establish that the legal
acts (parts thereof) of especially large size and complex
structure, inter alia such which include graphical parts of
especially large size, regarding the publication of which very
big technical problems would appear, could officially be
published not in the official gazette "Valstybės žinios", but in
other sources and/or in other ways, as well as to the extent that
it did not establish that the said legal acts (parts thereof) of
especially large size and complex structure, even if it is
required to officially announce them in the official gazette
"Valstybės žinios", could be officially published in special
editions of the official gazette "Valstybės žinios", was in
conflict with Paragraph 2 of Article 7 of the Constitution and
with the constitutional principle of a state under the rule of
law, it would be meaningless to investigate the compliance of
disputed Government resolution No. 912 with Paragraph 1 of
Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph 1 of
Article 8 of the Law "On the Procedure of Publication and Coming
into Force of Laws and Other Legal Acts of the Republic of
Lithuania" (wording of 6 April 1993): if such compliance were
investigated, one would make an essentially erroneous presumption
that, purportedly, a sub-statutory legal act should be in
conformity with an anticonstitutional law. Such a presumption
would deny the concept (entrenched in the Constitution) of the
hierarchy of legal acts, on top of which is the Constitution; the
very essence of constitutional justice would thus be distorted.
Therefore, in the constitutional justice case at issue the
Constitutional Court will not investigate whether the disputed
Government resolution was not in conflict with Paragraph 1 of
Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph 1 of
Article 8 of the Law "On the Procedure of Publication and Coming
into Force of Laws and Other Legal Acts of the Republic of
Lithuania" (wording of 6 April 1993).
5. While deciding, subsequent to the petitions of the
petitioners, in the constitutional justice case at issue whether
Government Resolution No. 912 "On Approving the Planning Scheme
of Trakai Historical National Park" of 6 December 1993 was not in
conflict with Paragraph 2 of Article 7 of the Constitution and
the constitutional principle of a state under the rule of law, it
needs to be noted that the following was established in the
constitutional justice case at issue:
- on 10 December 1993, the official gazette "Valstybės
žinios" published Government Resolution No. 912 "On Approving the
Planning Scheme of Trakai Historical National Park" of 6 December
1993, whereby the Planning Scheme of Trakai Historical National
Park was approved;
- on 4 February 1994, Order of the Ministry of Construction
and Urban Planning No. 212 "On Publishing the Planning Scheme of
Trakai Historical National Park" of 20 December 1993, together
with the textual part of the Scheme titled "The Planning Scheme
of Trakai Historical National Park" was published in the official
gazette "Valstybės žinios", whereas the graphical part of the
Scheme (the plan of the park territory with its functional zones)
was not published (the following remark was entered: "The plan
shall not be published. It is possible to familiarise with it at
the Ministry of Ministry of Construction and Urban Planning, at
the Board of the Trakai District and at the Directorate of Trakai
Historical National Park."); Thus, the legal subjects were
informed in the official gazette "Valstybės žinios", the official
source of publishing legal acts, where it was possible to
familiarise with the unpublished graphical part of the Scheme
(originals, copies thereof);
- the Scheme is of big size, its is composed not only of the
textual, but graphical part as well; the main drawing of the
graphical part of the said scheme is made from cardboard which is
4 mm in thickness; each four parts of the Scheme are 80 x 80 cm
in size; the entire size of the Scheme is 160 x 160 cm;
- in the course of issuance of conditions for detailed
planning (in Trakai Historical National Park) one has been and is
referring to the Scheme;
- the Trakai District Municipality submits extracts of the
Scheme to the interested institutions, inter alia in case A-11 -
215/2007 of the Supreme Administrative Court of Lithuania, the
Trakai District Municipality refers to the Scheme;
- in the course of issuing conditions for detailed planning
(at Trakai Historical National Park) there have not been any
legal disputes as regards the accessibility of the Scheme to
legal subjects or as regards the authenticity of the content of
the Scheme, thus, even though not the entire Scheme was published
in the official gazette "Valstybės žinios" (only the textual part
thereof was published in the official gazette "Valstybės
žinios"), it has been recognised that the Scheme is valid in its
entirety;
- it is possible to familiarise with the plan (or a copy
thereof) of the territory of Trakai Historical National Park with
its functional zones at the Directorate of Trakai Historical
National Park, the Ministry of Culture, and the Ministry of
Environment (at presentat the State Service for Protected Areas
under the Ministry of Environment). The Planning Scheme of Trakai
Historical National Park is displayed in public at the
Directorate of Trakai Historical National Park, all persons who
wish to familiarise with the said scheme have an opportunity to
do so, the plan's copies in colour and in black-and-white as well
as digital extracts of the Scheme are made. The electronic
version of the Scheme is available at the Internet webpage of the
Directorate of Trakai Historical National Park (www.
seniejitrakai.lt).
6. In addition, as mentioned, in this constitutional justice
case one is to invoke the circumstance as res iudicata
established in the constitutional justice case regarding the
Planning Scheme of Curonian Spit Historical National Park, that
publishing the Planning Scheme of Curonian Spit National Park
(which, as already held in the constitutional justice case at
issue, in its format is similar to the planning scheme of Trakai
Historical National Park) namely in the official gazette
"Valstybės žinios", in its entirety (all its constituent parts)
in such size, in which the Scheme was approved by the Government,
and in such edition and size, in which at that moment the
official gazette "Valstybės žinios" was printed, without losing
the informational value (clarity, quality, etc.) of the Planning
Scheme of Curonian Spit National Park, was virtually impossible
at that time (in December 1994) and for a long time afterwards
due to the lack of technical possibilities.
While construing this circumstance in the context of the
constitutional justice case at issue, it needs to be held that
also in 1993, when the Government resolution disputed in this
constitutional justice case was adopted, whereby the Planning
Scheme of Trakai Historical National Park was approved,
publishing the Scheme namely in the official gazette "Valstybės
žinios", in its entirety (all its constituent parts) in such
size, in which the Scheme was approved by the Government, and in
such edition and size, in which at that moment the official
gazette "Valstybės žinios" was printed, without losing the
informational value (clarity, quality, etc.) of the Scheme, was
virtually impossible due to the lack of technical possibilities.
7. In the said Constitutional Court ruling regarding the
Planning Scheme of Curonian Spit Historical National Park it was
also noted that the Scheme approved by the disputed Government
resolution is a territorial planning document, therefore, while
deciding whether the disputed Government resolution was not in
conflict with the Constitution, one had to take account not only
of the fact how the law, which, as mentioned, by the
Constitutional Court ruling of 27 June 2007 was recognised as
conflicting with the Constitution, had regulated the relations
linked to the official publishing and coming into force of
Government resolutions and the time when the disputed Government
resolution was adopted (and later), but also of the fact how the
preparation, registration, publishing and coming into force of
the territorial planning documents had been (were) regulated.
In its ruling of 27 June 2007, while summing up the legal
regulation related to the preparation of the territorial planning
documents and its development since 1994, the Constitutional
Court held: the said legal regulation allowed various persons to
participate in consideration of the prepared, but not yet
approved, territorial planning documents, natural and legal
persons had the right to familiarize themselves with prepared and
approved territorial planning documents and to receive copies of
the territorial planning documents or parts thereof and copies of
the drawings; no obstacles for that were established in legal
acts; the persons could find out where the approved territorial
planning documents were kept from the register of the territorial
planning documents; there was an established procedure of
registration of the territorial planning documents, whereby the
register of the territorial planning documents had to provide
where the original copy and the duplicates of the territorial
planning document were kept.
8. In the constitutional justice case at issue one is to
take account of the conclusion made in the Constitutional Court
ruling regarding the Planning Scheme of Curonian Spit Historical
National Park that from the legal acts which regulated the
preparation, registration, publishing and coming into force of
the territorial planning documents (some of them were issued soon
after the said scheme was approved by the Government), it is
obvious that it had to be (and it really was) clear for the
subjects of law where to familiarize themselves with the said
scheme (its original copies and duplicates) which had not been
published in the official gazette "Valstybės žinios".
In this context it needs to be noted that it has been
established in the constitutional justice case at issue that
legal subjects were informed in the official gazette "Valstybės
žinios", the official source of publishing legal acts, about
where they can familiarise with the part of the Scheme that had
not been published in the official gazette "Valstybės žinios"
(The remark in Order of the Ministry of Construction and Urban
Planning No. 212 "On Publishing the Planning Scheme of Trakai
Historical National Park" of 20 December 1993: "The plan shall
not be published. It is possible to familiarise with it at the
Ministry of Ministry of Construction and Urban Planning, at the
Board of the Trakai District and at the Directorate of Trakai
Historical National Park.").
9. It has been held in this Constitutional Court ruling that
any decisions related to administering the territory of Trakai
Historical National Park (inter alia with detailed plans of
settlements, forest management, land management, water
management, regeneration of villages, recreation, roads and
engineering communications etc.) could not (and cannot) be
adopted without taking account of the said Scheme approved by the
Government and could not (and cannot) be in conflict with
solutions of the Scheme. If one disregarded these solutions,
especially being aware of the fact that the State of Lithuania
treats Trakai and its environs as a unique complex of landscape
created by nature and man, as a territory, which must be
protected and with whose regard a special legal regime has been
created, and that this is a universally known fact, then the
general principle of law bona fides would be disregarded as well.
10. Thus because of all the circumstances specified herein,
the mere fact that the Planning Scheme of Trakai Historical
National Park which was approved by Government Resolution No. 912
"On Approving the Planning Scheme of Trakai Historical National
Park" of 6 December 1993 was not published in the official
gazette "Valstybės žinios" as a whole, in itself does not give
grounds to state that the Scheme was "not published" or
"published" not in public and not officially, that the access to
it was not ensured for the subjects of law, and that thus the
requirements of Paragraph 2 of Article 7 of the Constitution were
violated and the constitutional principle of a state under the
rule of law was disregarded.
11. Taking account of the arguments set forth, one is to
draw a conclusion that Government Resolution No. 912 "On
Approving the Planning Scheme of Trakai Historical National Park"
of 6 December 1993 (wording of 6 December 1993) according to the
procedure of its publishing is not in conflict with Paragraph 2
of Article 7 of the Constitution and the constitutional principle
under the rule of law.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
To recognise that Resolution of the Government of the
Republic of Lithuania No. 912 "On Approving the Planning Scheme
of Trakai Historical National Park" of 6 December 1993 (Official
Gazette Valstybės žinios, 1993, No. 68-1287; 1994, No. 10-162),
according to the procedure of its publishing, is not in conflict
with the Constitution of the Republic of Lithuania.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Egidijus Šileikis
Romualdas Kęstutis Urbaitis