Case No. 25/2007
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF RESOLUTION OF THE GOVERNMENT OF
THE REPUBLIC OF LITHUANIA NO. 1154 "ON CONFIRMATION
OF FOREST AREAS OF STATE IMPORTANCE" OF 23 OCTOBER
1997 (WORDING OF 3 NOVEMBER 2004) WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND
PARAGRAPH 2 (WORDING OF 3 AUGUST 2001) OF ARTICLE 4
AND ITEM 1 (WORDING OF 23 MARCH 2004) OF PARAGRAPH 2
OF ARTICLE 5 OF THE REPUBLIC OF LITHUANIA LAW ON THE
RESTORATION OF THE RIGHTS OF OWNERSHIP OF CITIZENS TO
THE EXISTING REAL PROPERTY
9 March 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, Ramutė Ruškytė, Egidijus Šileikis,
Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representative of the Government of
the Republic of Lithuania, the party concerned, who was Agnė
Murauskaitė, Head of the Law Application Division of the Legal
Department of the Ministry of Environment of the Republic of
Lithuania,
pursuant to Articles 102 and 105 of the Constitution of the
Republic of Lithuania and Article 1 of the Law on the
Constitutional Court of the Republic of Lithuania, in its public
hearing on 2 March 2010 heard constitutional justice case No.
25/2007 subsequent to the petition (No. 1B-28/2007) of the
Klaipėda Regional Administrative Court, the petitioner,
requesting to investigate whether Resolution of the Government of
the Republic of Lithuania No. 1370 "On Amending Resolution of the
Government of the Republic of Lithuania No. 1154 'On Confirmation
of Forest Areas of State Importance' of 23 October 1997" of 3
November 2004 to the extent that a land lot, to which one aspires
to restore the rights of ownership in kind, was assigned, under
the schemes drafted by the Ministry of Environment, to the forest
areas of state importance is not in conflict with Article 23 of
the Constitution of the Republic of Lithuania and Paragraph 2 of
Article 4 and Item 1 of Paragraph 2 of Article 5 of the Republic
of Lithuania Law on Restoration of the Rights of Ownership of
Citizens to the Existing Real Property.
The Constitutional Court
has established:
I
The Klaipėda 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, requesting to investigate
whether Government Resolution No. 1370 "On Amending Resolution of
the Government of the Republic of Lithuania No. 1154 'On
Confirmation of Forest Areas of State Importance' of 23 October
1997" of 3 November 2004 to the extent that, according to the
petitioner, the land of A. M., the former owner, which was
recorded as vacant (non-built-up) land by Decision of the Palanga
City Municipality No. 75 of 13 June 2003, and with regard to
which, subsequent to the schemes drafted by the Ministry of
Environment, the plan, size, boundaries, limitations and value of
the land lot (Vanagupės St. 46, Palanga) to be returned in kind
were confirmed by Order of Director of the Administration of the
Palanga City Municipality No. A1-4.1.-359 of 16 June 2004, was
assigned to the forest areas of state importance is not in
conflict with Article 23 of the Constitution and Paragraph 2 of
Article 4 and Item 1 of Paragraph 2 of Article 5 of the Law on
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property.
II
The petition of the Klaipėda Regional Administrative Court,
the petitioner, is substantiated by the fact that when a citizen
asked to adopt a decision to restore the rights of ownership to a
land lot in the town of Palanga, this lot was included into the
lists of forest areas of state importance approved by Government
Resolution No. 1370 "On Amending Resolution of the Government of
the Republic of Lithuania No. 1154 'On Confirmation of Forest
Areas of State Importance' of 23 October 1997" of 3 November
2004. The petitioner had a doubt whether the Government, by its
resolution, reasonably assigned the land, which was held by the
citizen A. M. until the nationalisation, to the forest areas of
state importance without taking a decision regarding the request
submitted by the claimant to restore the rights of ownership to
the said land. The petitioner believes that after this land had
been assigned to the forest areas of state importance by the
Government resolution, the claimant was deprived of an
opportunity to restore the rights of ownership to this land,
therefore, the petitioner doubts whether the legal regulation
established in this Government resolution is not in conflict with
Article 23 (property shall be inviolable, the rights of ownership
shall be protected by laws, and property may be taken over only
for the needs of society according to the procedure established
by law and shall be justly compensated for) of the Constitution
and Paragraph 2 (land shall be given back in kind in the former
locality) of Article 4 and Item 1 (the rights of ownership to
land shall be restored by giving back in kind the vacant (non-
built-up) land in the former locality, the plans of which are
approved by the director of the municipal administration under
procedure established by the Government) of Paragraph 2 of
Article 5 of the Law on Restoration of the Rights of Ownership of
Citizens to the Existing Real Property.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from A. Murauskaitė, the representative of the Government, the
party concerned, wherein it is maintained that the disputed legal
regulation was not in conflict with the Constitution and with the
aforesaid provisions of the Law on Restoration of the Rights of
Ownership of Citizens to the Existing Real Property.
The position of A. Murauskaitė, the representative of the
Government, the party concerned, is substantiated by the
following arguments.
1. From a fragment of the Scheme of Forest Areas of State
Importance of the State Forests Cadastre of the Republic of
Lithuania, as well as from additional graphical and visual
material, which was presented by the State Forest Survey Service
it is clear that there is forest on the disputed land lot (basic
forest lot 28, Section 105 of the Palanga City Municipality
forests of the Palanga Forestry Unit of the Kretinga Forest
Enterprise (hereinafter referred to as basic forest lot 28,
Section 105 of the Palanga City Municipality forests), which was
assigned to the forest areas of state importance by Government
Resolution No. 1370 "On Amending Resolution of the Government of
the Republic of Lithuania No. 1154 'On Confirmation of Forest
Areas of State Importance' of 23 October 1997" of 3 November
2004. The submitted forest evaluation indexes and the visual
material demonstrate that the forest which grows on the said lot
conforms to the criteria of forest established in Paragraph 1 of
Article 2 of the Republic of Lithuania Forestry Law: it is a
tract of land the area of which is not less than 0.1 hectares,
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 (felling areas, burned areas,
clearings). The specified forest is within the territory of the
town of Palanga, therefore it is ascribed to the category of town
forests, whereas, under Article 5 of the Forestry Law, town
forests are forests of state importance.
2. Town forests have a special ecological value. They
improve the quality of city environment and diminish the negative
impact on the latter. Town forests also perform important social
and recreational functions, while securing quality rest of the
public in urban areas. The legal regulation establishing
limitation to the restoration of the rights of ownership to town
forests is aimed at protecting other values (natural resources,
environment) which are defended by the Constitution, therefore
such limitations are legitimate and necessary.
3. When the Government implements the powers granted to it
by law to approve the schemes of forest areas of state
importance, the status of the forest which is in the territory of
a town is not changed due to inclusion of town forests into such
schemes: the legal regime is applied to such a forest. Even if
the Government did not include an area, which is in the territory
of a town and which conforms to the criteria of forest, into the
schemes of forests areas of state importance, under the Forestry
Law, such territory would be regarded as a forest of state
importance, which is exclusive ownership of the state and the
rights of ownership could not be restored to it.
IV
At the Constitutional Court hearing, A. Murauskaitė, the
representative of the Government, the party concerned, virtually
reiterated the arguments set forth in her written explanations
and answered to questions of justices of the Constitutional
Court.
The Constitutional Court
holds that:
I
1. The Klaipėda Regional Administrative Court, the
petitioner, requests to investigate whether Government Resolution
No. 1370 "On Amending Resolution of the Government of the
Republic of Lithuania No. 1154 'On Confirmation of Forest Areas
of State Importance' of 23 October 1997" of 3 November 2004 to
the extent that, according to the petitioner, the land of A. M.,
the former owner, which was recorded as vacant (non-built-up)
land by Decision of the Palanga City Municipality No. 75 of 13
June 2003, and with regard to which, subsequent to the schemes
drafted by the Ministry of Environment, the plan, size,
boundaries, limitations and value of the land lot (Vanagupės St.
46, Palanga) to be returned in kind were confirmed by Order of
Director of the Administration of the Palanga City Municipality
No. A1-4.1.-359 of 16 June 2004, was assigned to the forest areas
of state importance is not in conflict with Article 23 of the
Constitution and Paragraph 2 of Article 4 and Item 1 of Paragraph
2 of Article 5 of the Law on Restoration of the Rights of
Ownership of Citizens to the Existing Real Property.
2. On 3 November 2004, the Government adopted Resolution No.
1370 "On Amending Resolution of the Government of the Republic of
Lithuania No. 1154 'On Confirmation of Forest Areas of State
Importance' of 23 October 1997" which came into force on 7
November 2004.
This Government resolution prescribed:
"1. To amend Resolution of the Government of the Republic of
Lithuania No. 1154 'On Confirmation of Forest Areas of State
Importance' of 23 October 1997 (Official Gazette Valstybės
žinios, 1997, No. 97-2451; 2002, No. 54-2121; 2003, No. 74-3443;
2004, No. 26-815, No. 143-5233):
1.1. To set forth Item 1 as follows:
'1. To confirm the forest areas of state importance of
1093.71 thousand hectares (attached) subsequent to the schemes
drafted by the Ministry of Environment.'
1.2. To set forth in a new wording the forest areas of state
importance confirmed by the said resolution (attached).
2. To commission the Ministry of Environment to submit the
schemes specified in Item 1 to chiefs of counties and to other
interested institutions."
3. Thus, Government Resolution No. 1370 "On Amending
Resolution of the Government of the Republic of Lithuania No.
1154 'On Confirmation of Forest Areas of State Importance' of 23
October 1997" of 3 November 2004 amended the corresponding
provisions of Government Resolution No. 1154 (wording of 23
September 2004), inter alia it newly confirmed the forest areas
of state importance.
One is to draw a conclusion that the petitioner requests to
investigate whether Government Resolution No. 1154 "On
Confirmation of Forest Areas of State Importance" of 23 October
1997 (wording of 3 November 2004) (hereinafter also referred to
as Government Resolution No. 1154 (wording of 3 November 2004))
is not in conflict with Article 23 of the Constitution and with
respective articles of the Law on Restoration of the Rights of
Ownership of Citizens to the Existing Real Property.
4. Government Resolution No. 1154 (wording of 3 November
2004) has a constituent part titled "Forest Areas of State
Importance" which inter alia confirmed forest areas of state
importance of 3.33 thousand hectares to the Palanga City
Municipality (Section 19).
5. The Klaipėda Regional Administrative Court, the
petitioner, does not indicate the wording of Paragraph 2 of
Article 4 and that of Item 1 of Paragraph 2 of Article 5 of the
Law on Restoration of the Rights of Ownership of Citizens to the
Existing Real Property with which, in its opinion, the disputed
Government Resolution No. 1154 (wording of 3 November 2004) is in
conflict (to the corresponding extent); it is clear from the
arguments of the petition and the case material that they are
Paragraph 2 (wording of 3 August 2001) of Article 4 and Item 1
(wording of 23 March 2004) of Paragraph 2 of Article 5 of the Law
on Restoration of the Rights of Ownership of Citizens to the
Existing Real Property.
6. As it is obvious from the material in the constitutional
justice case at issue, inter alia from fragment No. P0707-0013 of
the Scheme of Forest Areas of State Importance of the State
Forests Cadastre of the Republic of Lithuania of 30 July 2007
submitted by the State Forest Survey Service (under Item 15 of
the Regulations for the State Forests Cadastre of the Republic of
Lithuania approved by Item 2 of Resolution of the Government of
the Republic of Lithuania No. 1255 "On Founding the State Forests
Cadastre of the Republic of Lithuania and on Approving Its
Regulations" of 9 October 2003, the State Forest Survey Service
is the establishment managing the cadastre), the forest areas of
state importance of 3.33 thousand hectares confirmed to the
Palanga City Municipality by Government Resolution No. 1154
(wording of 3 November 2004) also encompassed the lot which is
situated in basic forest lot 28, Section 105 of the Palanga City
Municipality forests (the rights of ownership are sought to be
restored in kind to a part of this lot).
7. Thus, the Constitutional Court will investigate whether
Government Resolution No. 1154 "On Confirmation of Forest Areas
of State Importance" of 23 October 1997 (wording of 3 November
2004) to the extent that the forest areas of state importance of
3.33 thousand hectares confirmed (subsequent to the corresponding
scheme drafted by the Ministry of Environment) to the Palanga
City Municipality also encompasses basic forest lot 28, Section
105 of the Palanga City Municipality forests is not in conflict
with Article 23 of the Constitution and Paragraph 2 (wording of 3
August 2001) of Article 4 and Item 1 (wording of 23 March 2004)
of Paragraph 2 of Article 5 of the Law on Restoration of the
Rights of Ownership of Citizens to the Existing Real Property.
8. It needs to be noted that the fact whether the concrete
person reasonably aspires to restore the rights of ownership to
the said disputed lot is not a matter of investigation in this
constitutional justice case. The decision of these questions are
within the jurisdiction of the court that is considering the
corresponding case on restoration of the rights of ownership.
II
On the compliance of Government Resolution No. 1154 "On
Confirmation of Forest Areas of State Importance" of 23 October
1997 (wording of 3 November 2004) to the extent that the forest
areas of state importance of 3.33 thousand hectares confirmed
(subsequent to the corresponding scheme drafted by the Ministry
of Environment) to the town of Palanga also encompasses basic
forest lot 28, Section 105 of the Palanga City Municipality
forests with Paragraph 2 (wording of 3 August 2001) of Article 4
and Item 1 (wording of 23 March 2004) of Paragraph 2 of Article 5
of the Law on Restoration of the Rights of Ownership of Citizens
to the Existing Real Property.
1. In the opinion of the petitioner, Government Resolution
No. 1154 "On Confirmation of Forest Areas of State Importance" of
23 October 1997 (wording of 3 November 2004) to the corresponding
extent is in conflict inter alia with Paragraph 2 (wording of 3
August 2001) of Article 4 and Item 1 (wording of 23 March 2004)
of Paragraph 2 of Article 5 of the Law on Restoration of the
Rights of Ownership of Citizens to the Existing Real Property due
to the fact that after basic forest lot 28, Section 105 of the
Palanga City Municipality forests had been assigned to forest
areas of state importance by the disputed Government resolution
without taking a decision regarding the request submitted by the
claimant to restore the rights of ownership to the said land in
kind, the claimant, according to the petitioner, was deprived of
an opportunity to implement this right.
2. In the context of the constitutional justice case at
issue first of all it is necessary to elucidate the notion of
forest, the concept of forests of state importance, as well as
the purpose and status of basic forest lot 28, Section 105 of the
Palanga City Municipality forests.
3. When the independent State of Lithuania was restored on
11 March 1990, the Code of Forests of the Republic of Lithuania
adopted on 21 June 1979 was in force, under Article 1 whereof
this code regulated forestry relations, while under Paragraph 1
of Article 28 of this code, forests of state importance were
distributed in first, second, and third groups. Paragraph 2 of
Article 28 of the said code prescribed that "to the first group
shall belong the forests which perform first of all these
functions: <...> sanitary-hygienic and wellness (town forests,
<...>)".
4. On 22 November 1994, the Seimas of the Republic of
Lithuania adopted the Republic of Lithuania Forestry Law (it came
into force on 1 January 1995). Under Article 27 of the Forestry
Law (wording of 22 November 1994), upon the entry of this law
into force, the Code of Forests became no longer valid.
In the context of the constitutional justice case at issue
it needs to be noted that the features according to which a
respective land lot is regarded as forest were established in
Paragraph 3 of Article 3 of the Forestry Law (wording of 22
November 1994): forest is defined as a tract of land not less
than 0.1 ha, covered by trees or other forest vegetation or
temporary lost of it (cleared or burned areas). The Forestry Law
(wording of 22 November 1994) was amended and/or supplemented
more than once, however, the said legal regulation established
therein remained intact till 1 July 2001.
On 10 April 2001, the Seimas adopted the Republic of
Lithuania Law on Amending the Forestry Law by Article 1 whereof
the Forestry Law (wording of 22 November 1994) was amended and
set forth in a new wording. Under Article 1 of the Republic of
Lithuania Law on Implementing the Forestry Law, which was adopted
on the same day, the Forestry Law of the new wording came into
force on 1 July 2001. Under Paragraph 1 of Article 2 of the
Forestry Law (wording of 10 April 2001) forest is a tract of land
the area of which is not less than 0.1 hectares, 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 (felling areas, burned areas, clearings). The
Forestry Law (wording of 10 April 2001) has been amended and/or
supplemented more than once, however, the said legal regulation
established therein has remained intact.
5. The material of the constitutional justice case at issue,
inter alia the data submitted by competent state institutions,
allow to state that part of the land of its former owner A. M.,
to which the restoration of the rights of ownership in kind is
being sought:
- is covered by basic forest lot 28, Section 105 of the
Palanga City Municipality forests, which is assigned to forest
areas of state importance by Government Resolution No. 1370 "On
Amending Resolution of the Government of the Republic of
Lithuania No. 1154 'On Confirmation of Forest Areas of State
Importance' of 23 October 1997" of 3 November 2004 (Document of
the State Forest Survey Service No. 576 "On Submission of
Information" of 31 July 2007, fragment No. P0707-0013 of the
Scheme of Forest Areas of State Importance of the State Forests
Cadastre of the Republic of Lithuania of 30 July 2007);
- was attributed to the territory of the town of Palanga as
far back as in 1970 (Order of the Presidium of the Supreme Soviet
of the Lithuanian SSR "On Abolishing the Local Administrative
Unit of Šventoji of the Kretinga District" of 30 June 1970;
Document of the Palanga City Municipality No. (19.4)-D3-472 "On
Submission of Information for the Constitutional Justice Case" of
22 February 2010).
6. According to the data of the State Forests Cadastre of
the Republic of Lithuania, stands grow in basic forest lot 28,
Section 105 of the Palanga City Municipality forests, the age of
the stands is 55 years, the height of the trees is 19 metres, the
area of the forest is 0.6 hectares, the type of the stands is
that of forest parks, and their density is medium (Note of State
Forest Survey Service No. TA 0707-0004 "Regarding the Forest
Evaluation Indexes of the Forests Registered in the State Forests
Cadastre of the Republic of Lithuania" of 30 July 2007).
Thus, as it is clear from fragment No. P0707-0013 of the
Scheme of Forest Areas of State Importance of the State Forests
Cadastre of the Republic of Lithuania of 30 July 2007 submitted
by the State Forests Survey Service and from the forest
evaluation indexes registered in the State Forests Cadastre of
the Republic of Lithuania, basic forest lot 28, Section 105 of
the Palanga City Municipality forests was and is in conformity
with the notion of forest entrenched in Paragraph 3 of Article 3
of the Forestry Law (wording of 22 November 1994) and in
Paragraph 1 of Article 2 of the Forestry Law (wording of 10 April
2001).
7. Paragraph 1 of Article 2 of the Forestry Law (wording of
10 April 2001) prescribed that "'town forests' mean forests which
are in the territory of towns".
It has been mentioned that the territory in which there is
basic forest lot 28, Section 105 of the Palanga City Municipality
forests was attributed to the territory of the town of Palanga as
far back as in 1970.
Thus, it is clear from the material of this constitutional
justice case that there is town forest in basic forest lot 28,
Section 105 of the Palanga City Municipality forests.
8. Item 3 of Paragraph 6 of Article 5 of the Forestry Law,
which was adopted by the Seimas on 22 November 1994 and which
came into force on 1 January 1995 prescribed that "Forests of
State importance shall belong by the exclusive right of ownership
to the Republic of Lithuania if the forests are assigned to:
<...> 3) <...> town forests <...>".
Item 2 of Paragraph 4 of Article 4 of the Forestry Law
(wording of 10 April 2001) prescribes that "<
> Forests of state
importance shall be: <
> 2) town forests; <...>". This provision
of the Forestry Law has not been amended or supplemented.
Thus, the Forestry Law established and establishes that town
forests are forests of state importance.
Thus, the forest which grows on basic forest lot 28, Section
105 of the Palanga City Municipality forests is a forest of state
importance.
9. It has been mentioned that the petitioner disputes the
compliance (to the corresponding extent) of Government Resolution
No. 1154 "On Confirmation of Forest Areas of State Importance" of
23 October 1997 (wording of 3 November 2004) with inter alia
Paragraph 2 (wording of 3 August 2001) of Article 4 and Item 1
(wording of 23 March 2004) of Paragraph 2 of Article 5 of the Law
on Restoration of the Rights of Ownership of Citizens to the
Existing Real Property.
10. Paragraph 2 (wording of 3 August 2001) of Article 4 of
the Law on Restoration of the Rights of Ownership of Citizens to
the Existing Real Property prescribes:
"Land shall be given back in kind to a citizen or citizens
in the former locality by the right of common ownership, with the
exception of the land which under Article 12 of this Law is
attributed to the land subject to buying out by the State, and
the land that citizens are not willing to get back in its former
locality in the case specified in Paragraph 10 of this Article.
By agreement of co-owners of land, land may be returned in kind
by separate plots of land. Projects of parcelling out plots of
land acquired by the right of common ownership, shall be prepared
with the funds of the owners of such land according to the
uniform-amount rates of executing works, as set by the
Government."
11. Item 1 (wording of 23 March 2004) of Paragraph 2 of
Article 5 of the Law on Restoration of the Rights of Ownership of
Citizens to the Existing Real Property prescribes:
"The rights of ownership to the land, which was situated
prior to 1 June 1995 within the territory that was attributed in
the prescribed manner to towns, shall be restored according to
the following procedure:
1) by giving back in kind to a citizen or citizens the
vacant (non-built-up) land in the former locality by the right of
common ownership, as well as to a citizen, possessing the
buildings by the ownership right, a plot of land in use by this
citizen the boundaries of which are defined in territorial
planning documents, with the exception of the land attributed
under Article 12 of this Law to the land subject to buying out by
the State, as well as the land a citizen does not wish to be
given back in the former locality. The area of the vacant (non-
built-up) land given back in kind shall be reduced to the size of
a plot of land of one hectare, provided that plots of land are
designed on it, which are being transferred without payment to
citizens for individual construction under Item 3 of Paragraph 2
of this Article and they may not be designed within other
territories of a town due to the lack of vacant (non-built-up)
land in this town. The formation of plots of land being given
back in kind in vacant (non-built-up) areas of land in the former
locality and the preparation of their plans shall, in accordance
with the procedure and conditions set out by the Government, be
organised and the plans shall be approved by the director of the
municipal administration."
12. Thus, under Paragraph 2 (wording of 3 August 2001) of
Article 4 and Item 1 (wording of 23 March 2004) of Paragraph 2 of
Article 5 of the Law on Restoration of the Rights of Ownership of
Citizens to the Existing Real Property, land and,
correspondingly, town land are returned to citizens in kind.
Thus, the provisions of this law regulated the relations
linked with returning of land and, correspondingly, town land,
which is not forest, to citizens in kind with the exception of
the cases when such land is not returned but bought out by the
state.
13. Paragraph 2 (wording of 3 August 2001) of Article 4 and
Item 1 (wording of 23 March 2004) of Paragraph 2 of Article 5 of
the Law on Restoration of the Rights of Ownership of Citizens to
the Existing Real Property make reference to Article 12 (wording
of 14 October 2003) of the same law, which establishes the cases
when land and, correspondingly, town land is not returned to
citizens in kind, but compensated in other ways according to
Article 16 (wording of 29 October 2002) of this law.
14. As mentioned, there is town forest in basic forest lot
28, Section 105 of the Palanga City Municipality forests. It
needs to be emphasised that the cases when forests are not
returned to citizens in kind and citizens are compensated for
such forests according to Article 16 (wording of 29 October 2002)
of the Law on Restoration of the Rights of Ownership of Citizens
to the Existing Real Property are established not in Article 12,
but Article 13 thereof.
Article 13 (wording of 29 October 2002) of the Law on
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property prescribes:
"Article 13. Forests and Water Bodies Bought out by the
State
Forests and water bodies shall be bought out by the State
from the persons specified in Article 2 of this Law and the State
shall compensate for them in pursuance with Article 16 of this
Law, provided that these forests and water bodies are:
1) assigned to forests of State importance, inland water
bodies of State importance. The areas of these forests and water
bodies shall be approved by the Government;
2) assigned to state reserves, reserves of state parks and
forest reserves plots, national park of the Curonian Peninsula;
3) assigned to town forests, zone 1 of sanitary protection
of towns, town parks. Lists of the above-mentioned forests with
forest areas indicated therein shall be approved by the
Government;
4) assigned to forest genetic preserves, state forest
nurseries, state seed-plots and forest seed orchards;
5) assigned to objects of scientific research and training
of forestry, as well as of selective seed farming. The areas of
these forests shall be approved by the Government;
6) forests of state significance which are situated within a
seven-kilometre strip from the Baltic Sea to the Curonian bay;
7) acquired into private ownership in accordance with laws."
Thus, under Article 13 (wording of 29 October 2002) of this
law, the rights of ownership to forests by returning them in kind
are not restored if such forests: are assigned to forests of
state importance (Item 1); are assigned to town forests (Item 3).
Thus, town forests are bought out by the state; for such forests
one is compensated by the state according to Article 16 (wording
of 29 October 2002) of the Law on Restoration of the Rights of
Ownership of Citizens to the Existing Real Property.
15. It needs to be noted that the legal regulation whereby
town forests are not returned to citizens in kind but are bought
out by the state by providing compensation for such forests in
other ways used to be established in Item 3 (wording of 7 May
1992) of Article 13 of the Republic of Lithuania Law "On the
Procedure and Conditions of the Restoration of the Rights of
Ownership of Citizens to the Existing Real Property", as well as
in Item 4 (wording of 1 July 1997) of Article 13 of the Law on
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property.
It also needs to be noted that, under Article 13 (wording of
18 June 1991) of the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property", "forests required by the State shall be
bought out (or compensated for) from persons specified in Article
2 of this Law in the manner established in Article 16 of this
Law, provided that these forests are assigned to Group 1 forests
under the laws of the Republic of Lithuania". It has been
mentioned that Article 28 (wording of 21 June 1979) of the Code
of Forests of the Republic of Lithuania prescribed that "to the
first group shall belong the forests which perform first of all
these functions: <...> sanitary-hygienic and wellness (town
forests, <...>)".
Thus, the principled provision that town forests are not
returned to citizens in kind but are bought out by the state was
entrenched as far back as from 18 June 1991, when the Seimas
adopted the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property".
16. It has been mentioned that, in the opinion of the
petitioner, Government Resolution No. 1154 "On Confirmation of
Forest Areas of State Importance" of 23 October 1997 (wording of
3 November 2004) to the corresponding extent is in conflict inter
alia with Paragraph 2 (wording of 3 August 2001) of Article 4 and
Item 1 (wording of 23 March 2004) of Paragraph 2 of Article 5 of
the Law on Restoration of the Rights of Ownership of Citizens to
the Existing Real Property due to the fact that after basic
forest lot 28, Section 105 of the Palanga City Municipality
forests had been assigned to forest areas of state importance by
the disputed Government resolution without taking a decision
regarding the request submitted by the claimant to restore the
rights of ownership to the said land in kind, the claimant,
according to the petitioner, was deprived of an opportunity to
implement this right.
Therefore, in the constitutional justice case at issue it is
also necessary to elucidate whether the Government enjoyed the
powers to assign basic forest lot 28, Section 105 of the Palanga
City Municipality forests to forest areas of state importance
without taking a decision regarding the request submitted by the
claimant to restore the rights of ownership to the said land in
kind, i.e. whether the Government was allowed to adopt the
disputed resolution to the corresponding extent.
The principle of a state under the rule of law entrenched in
the Constitution implies the hierarchy of legal acts. In its acts
the Constitutional Court held more than once that the
constitutional principle does not permit that sub-statutory legal
acts (thus, also Government resolutions) establish any such legal
regulation which would compete with that established in the law,
and that it demands that sub-statutory legal acts be not in
conflict with laws, constitutional laws and the Constitution,
that sub-statutory legal acts must be adopted on the basis of
laws, that a sub-statutory legal act is an act of application of
norms of the law, irrespective of whether the act is of one-time
(ad hoc) application, or of permanent validity (inter alia the
Constitutional Court ruling of 6 September 2007).
16.1. At the time when the Government adopted Government
resolution No. 1154 of 23 October 1997 (wording of 3 November
2004) which is being disputed to the corresponding extent, Items
1 and 3 (wording of 11 December 2001) of Article 13 of the Law on
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property were in force, wherein it was prescribed:
"Forests and water bodies shall be bought out by the State from
the persons specified in Article 2 of this Law and the State
shall compensate for them in pursuance with Article 16 of this
Law, provided that these forests and water bodies are: 1)
assigned to forests of state importance, <
>. The areas of these
forests <
> shall be approved by the Government; <
> 3) assigned
to town forests, zone 1 of sanitary protection of towns, town
parks. Lists of the above-mentioned forests with forest areas
indicated therein shall be approved by the Government; <...>."
16.2. Thus, under the provision of Item 1 (wording of 11
December 2001) of Article 13 of the Law on Restoration of the
Rights of Ownership of Citizens to the Existing Real Property,
the Government had the powers to approve the areas of forests of
state importance, whereas under the provision of Item 3 (wording
of 11 December 2001) of the same article, the Government had the
powers to approve lists of forests assigned to town forests with
forest areas indicated therein.
17. It has been mentioned that there is town forest in basic
forest lot 28, Section 105 of the Palanga City Municipality
forests.
In this context it needs to be noted that in the
Constitutional Court ruling of 6 September 2007 wherein one
investigated to the corresponding extent the compliance of
Government Resolution No. 1154 "On Confirmation of Forest Areas
of State Importance" of 23 October 1997 (wording of 14 July 2005)
with the Constitution and the provisions of articles of the Law
on Restoration of the Rights of Ownership of Citizens to the
Existing Real Property it was held that regardless of the fact
whether the Government had formally attributed certain town
forests to forests of state importance, under the Forestry Law,
town forests were forests of state importance.
In itself, the mere fact that basic forest lot 28, Section
105 of the Palanga City Municipality forests for some time was
not assigned to forest areas of state importance by a resolution
of the Government and that this was done only after Government
Resolution No. 1154 of 23 October 1997 had been set forth in the
wording of 3 November 2004 without taking a decision regarding
the request submitted by the claimant to restore the rights of
ownership to this portion of land, does not constitute grounds to
assert that the Government was acting ultra vires, i.e. that it
exceeded its powers.
18. It has been mentioned that there is town forest in basic
forest lot 28, Section 105 of the Palanga City Municipality
forests. Thus, this lot, as town forest, under Item 2 of
Paragraph 4 of Article 4 of the Forestry Law (wording of 10 April
2001), which provides that town forests are forests of state
importance, and, under Item 3 (wording of 11 December 2001) of
Article 13 of the Law on Restoration of the Rights of Ownership
of Citizens to the Existing Real Property, such a lot is not
returned to citizens in kind, but must be bought out by the
state.
In this constitutional justice case it has already been
mentioned that the principled provision that town forests are not
returned to citizens in kind but are bought out by the state was
entrenched as far back as from 18 June 1991, when the Seimas
adopted the Law "On the Procedure and Conditions of the
Restoration of the Rights of Ownership of Citizens to the
Existing Real Property".
19. It has also been mentioned that for the forests bought
out by the state citizens are compensated by the state in the
ways established in Article 16 (wording of 29 October 2002) of
the Law on Restoration of the Rights of Ownership of Citizens to
the Existing Real Property.
20. It needs to be noted that, in its ruling of 20 May 2008,
the Constitutional Court also held that the legal regulation
which establishes the alternatives of restoration of the rights
of ownership in kind is not in conflict with the purposes of
restitution and with the constitutional principle of protection
of the rights of ownership.
21. It has been mentioned that Paragraph 2 (wording of 3
August 2001) of Article 4 and Item 1 (wording of 23 March 2004)
of Paragraph 2 of Article 5 of the Law on Restoration of the
Rights of Ownership of Citizens to the Existing Real Property
(with whose regard the petitioner disputes, to the corresponding
extent, Government Resolution No. 1154 "On Confirmation of Forest
Areas of State Importance" of 23 October 1997 (wording of 3
November 2004)) regulate the relations linked with returning of
land and, correspondingly, town land, which is not forest, to
citizens in kind.
It has also been mentioned that the lot to which the
restoration of the rights of ownership in kind is claimed is town
forest.
22. Thus, there are no legal grounds to assert that the
legal regulation established in Government Resolution No. 1154
"On Confirmation of Forest Areas of State Importance" of 23
October 1997 (wording of 3 November 2004) to the extent that the
forest areas of state importance of 3.33 thousand hectares
confirmed (subsequent to the corresponding scheme drafted by the
Ministry of Environment) to the town of Palanga also encompasses
basic forest lot 28, Section 105 of the Palanga City Municipality
forests is not in conformity with Paragraph 2 (wording of 3
August 2001) of Article 4 and Item 1 (wording of 23 March 2004)
of Paragraph 2 of Article 5 of the Law on Restoration of the
Rights of Ownership of Citizens to the Existing Real Property.
23. Taking account of the arguments set forth, one is to
draw a conclusion that Government Resolution No. 1154 "On
Confirmation of Forest Areas of State Importance" of 23 October
1997 (wording of 3 November 2004) to the extent that the forest
areas of state importance of 3.33 thousand hectares confirmed
(subsequent to the corresponding scheme drafted by the Ministry
of Environment) to the town of Palanga also encompasses basic
forest lot 28, Section 105 of the Palanga City Municipality
forests is not in conflict with Paragraph 2 (wording of 3 August
2001) of Article 4 and Item 1 (wording of 23 March 2004) of
Paragraph 2 of Article 5 of the Law on Restoration of the Rights
of Ownership of Citizens to the Existing Real Property.
III
On the compliance of Government Resolution No. 1154 "On
Confirmation of Forest Areas of State Importance" of 23 October
1997 (wording of 3 November 2004) to the extent that the forest
areas of state importance of 3.33 thousand hectares confirmed
(subsequent to the corresponding scheme drafted by the Ministry
of Environment) to the town of Palanga also encompasses basic
forest lot 28, Section 105 of the Palanga City Municipality
forests with Article 23 of the Constitution.
1. It has been mentioned that, in the opinion of the
petitioner, Government Resolution No. 1154 "On Confirmation of
Forest Areas of State Importance" of 23 October 1997 (wording of
3 November 2004) to the corresponding extent is in conflict inter
alia with Article 23 of the Constitution due to the fact that
after basic forest lot 28, Section 105 of the Palanga City
Municipality forests had been assigned to forest areas of state
importance by the disputed Government resolution without taking a
decision regarding the request submitted by the claimant to
restore the rights of ownership to the said land, the claimant
was deprived of an opportunity to implement this right.
2. Article 23 of the Constitution provides that property
shall be inviolable (Paragraph 1); the rights of ownership shall
be protected by laws (Paragraph 2); property may be taken over
only for the needs of society according to the procedure
established by law and shall be justly compensated for (Paragraph
3).
The provisions of Article 23 of the Constitution are to be
construed also while taking account of the provision of Paragraph
1 (wording of 23 January 2003) of Article 47 of the Constitution
whereby the underground, internal waters, forests, parks, roads,
historical, archaeological and cultural objects of state
importance shall belong by the right of exclusive ownership to
the Republic of Lithuania. This provision means that the objects,
inter alia forests of state importance, specified in Paragraph 1
(wording of 23 January 2003) of Article 47 of the Constitution,
may belong only to the state by right of ownership, save the
exceptions stemming from the Constitution itself (Constitutional
Court ruling of 6 September 2007); the state (its institutions,
officials) cannot adopt any decisions on the grounds of which the
said objects would move from the state ownership to the ownership
of other subjects, save the situations permitted by the
Constitution itself (Constitutional Court rulings of 8 July 2005,
14 March 2006, 6 September 2007).
3. It needs to be noted that the State of Lithuania, while
striving to restore justice in part at least, i.e. to restore the
violated rights of ownership, chose restricted restitution, but
not restitutio in integrum; the restoration of justice when the
owners are compensated for the existing real property which has
not been returned in kind has two sides: it is justice in regard
of the owner as well as the entire society; the unlawful actions
of the occupation government inflicted enormous damage not only
on the owners whose rights of ownership were denied but also on
the whole society and the entire state; while restoring justice
in regard of the owners, one cannot ignore justice in regard of
the entire society whose members are also the owners as well; in
the process of the restoration of the rights of ownership one
must strive for a balance between the persons whose rights are
being restored and the interests of the entire society
(Constitutional Court rulings of 4 March 2003 and 5 July 2007).
4. The Constitutional Court has held more than once that it
is permitted that laws establish that objects of property (which
are bought out by the state) are not returned in kind to the
persons who have the right to the restoration of the rights of
ownership (Constitutional Court rulings of 5 July 2007, 6
September 2007, 20 May 2008, decision of 4 July 2008); the
provision of the restitution laws that if it is impossible to
retrieve the property in kind, compensation must given, is not in
conflict with the principles of inviolability of property and of
the protection of ownership rights, since fair compensation also
ensures restoration of ownership rights (inter alia
Constitutional Court rulings of 5 July 2007, 6 September 2007,
decision of 4 July 2008).
As mentioned, in its ruling of 20 May 2008, the
Constitutional Court also held that the legal regulation
establishing the alternatives of restoration of the rights of
ownership in kind is not in conflict with the purposes of
restitution and with the constitutional principle of protection
of the rights of ownership.
While interpreting the content of Article 23 of the
Constitution in the context of the restoration of the rights of
ownership to the existing real property, the Constitutional Court
has held in its rulings the following more than once: until his
property is restored or he is paid an appropriate compensation
for it, the subjective rights of the former owner to a specific
property are not restored yet (Constitutional Court ruling of 20
May 2008); the legal meaning of the decision of the institution
authorised by the state to restore property in kind or compensate
for it is that only from this proper moment the former owner
acquires the rights of ownership to such property (Constitutional
Court rulings of 27 May 1994, 4 March 2003 and 20 May 2008).
5. It has been held in this ruling of the Constitutional
Court that, in itself, the mere fact that basic forest lot 28,
Section 105 of the Palanga City Municipality forests for some
time was not assigned to forest areas of state importance by a
resolution of the Government and that this was done only after
Government Resolution No. 1154 of 23 October 1997 had been set
forth in the wording of 3 November 2004 without taking a decision
regarding the request submitted by the claimant to restore the
rights of ownership to this portion of land, does not constitute
grounds to assert that the Government was acting ultra vires, i.
e. that it exceeded its powers.
It also needs to be mentioned that the Constitutional Court
has held that, regardless of the fact whether the Government has
formally attributed certain town forests to forests of state
importance, under the Forestry Law, town forests are forests of
state importance (Constitutional Court ruling of 6 September
2007).
6. It has been mentioned that, under the Constitution, fair
compensation also ensures restoration of the rights of ownership.
7. Thus, there are no grounds to assert that the legal
regulation established in Government Resolution No. 1154 "On
Confirmation of Forest Areas of State Importance" of 23 October
1997 (wording of 3 November 2004) to the extent that the forest
areas of state importance of 3.33 thousand hectares confirmed
(subsequent to the corresponding scheme drafted by the Ministry
of Environment) to the town of Palanga also encompasses basic
forest lot 28, Section 105 of the Palanga City Municipality
forests deviated from the imperatives of the rights of ownership
arising from Article 23 of the Constitution.
8. Taking account of the arguments set forth, one is to draw
a conclusion that that the legal regulation established in
Government Resolution No. 1154 "On Confirmation of Forest Areas
of State Importance" of 23 October 1997 (wording of 3 November
2004) to the extent that the forest areas of state importance of
3.33 thousand hectares confirmed (subsequent to the corresponding
scheme drafted by the Ministry of Environment) to the town of
Palanga also encompasses basic forest lot 28, Section 105 of the
Palanga City Municipality forests is not in conflict with Article
23 of the Constitution.
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 that Resolution of the Government of
the Republic of Lithuania No. 1154 "On Confirmation of Forest
Areas of State Importance" of 23 October 1997 (wording of 3
November 2004) (Official Gazette Valstybės žinios, 2004, No.
162-5910) to the extent that the forest areas of state
importance of 3.33 thousand hectares confirmed (subsequent to
the corresponding scheme drafted by the Ministry of Environment)
to the town of Palanga also encompasses basic forest lot 28,
Section 105 of the Palanga City Municipality forests is not in
conflict with Paragraph 2 (wording of 3 August 2001) of Article
4 and Item 1 (wording of 23 March 2004) of Paragraph 2 of
Article 5 of the Republic of Lithuania Law on Restoration of the
Rights of Ownership of Citizens to the Existing Real Property.
2. To recognise that the legal regulation established in
Resolution of the Government of the Republic of Lithuania No.
1154 "On Confirmation of Forest Areas of State Importance" of 23
October 1997 (wording of 3 November 2004) (Official Gazette
Valstybės žinios, 2004, No. 162-5910) to the extent that the
forest areas of state importance of 3.33 thousand hectares
confirmed (subsequent to the corresponding scheme drafted by the
Ministry of Environment) to the town of Palanga also encompasses
basic forest lot 28, Section 105 of the Palanga City
Municipality forests is not in conflict with Article 23 of 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
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis