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On certain articles of the Law on Land

Case No. 16/95

THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA

R U L I N G

On the compliance of the norms of Paragraphs 1 and 2 of Article 6 of the Republic of Lithuania’s Law on Land regulating the rights of local self-government institutions in the sphere of the possession of State land as well as Article 24 of the said law with the Constitution of the Republic of Lithuania

25 September 1996, Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the justices of the Constitutional Court: Egidijus Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas Rasimavičius, and Juozas Žilys

The court reporter—Daiva Pitrėnaitė

Seimas members Andrius Kubilius and Kęstutis Skrebys, acting as the representatives of a group of members of the Seimas of the Republic of Lithuania, the petitioner

Julius Jurginis, the secretary of the Ministry of Public Administration Reforms and Municipal Affairs, acting as the representative of the Seimas, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on Constitutional Court of the Republic of Lithuania, in its public hearing, on 5 September 1996, considered case No. 16/95 subsequent to the petition submitted to the Court by a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether the norms of Paragraphs 1 and 2 of Article 6 of the Republic of Lithuania’s Law on Land regulating the rights of local self-government institutions in the sphere of the possession of State land as well as Article 24 of the said law are in compliance with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

On 26 April 1994, the Seimas passed the Republic of Lithuania’s Law on Land (Official Gazette Valstybės žinios, 1994, No. 34-620). By the Law “On Amending and Supplementing the Republic of Lithuania’s Law on Land” of 13 June 1995, among others, certain norms of Articles 6 and 24 of the aforesaid law were amended.

The petitioner requests an investigation into whether the norms of Paragraphs 1 and 2 of Article 6 of the Law on Land regulating the rights of the local self-government institutions in the sphere of the possession of State land are in compliance with Article 119, Paragraph 2 of Article 120 and Paragraph 2 of Article 46 of the Constitution, as well as whether Article 24 of the Law on Land is in conformity to Paragraph 2 of Article 77 and Paragraph 2 of Article 120 of the Constitution.

I

The petitioner grounds its request on the following arguments:

  1. It is established in Paragraph 1 of Article 6 of the Law on Land: “By the decision of the Government of the Republic of Lithuania, the right of the possession of State land shall be vested in <...> local self-government institutions <...>”, i.e. the Government is granted an absolute right to regulate the right of local self-government institutions to possess State land. For instance, by its decision the Government can commission a local self-government institution with the possession of particular plots of land which are on the territory of the respective municipality, however, in case it is willing to do so, it can arbitrarily deprive the local self-government institution of this right. The law does not prescribe any limitations on Government decisions.

Article 119 of the Constitution entitles municipalities to the right of self-government which is implemented through municipal councils. The procedure for the organisation and activities of self-government institutions is established by law, whereas in Paragraph 2 of Article 120 of the Constitution it is guaranteed that “municipalities shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws”. Thus, according to the Constitution, only the Constitution and laws may limit the competence of municipalities, and never the Government by its decision.

The petitioner is of the opinion that the aforesaid norm of Paragraph 1 of Article 6 of the Law on Land allows the Government to establish the whole content of the right of municipalities to possess land believing that an abstract legal right of municipalities to possess land does not define the actual content of municipal competence, i.e., it is not established in the law as to what particular State land (or portion thereof) municipalities are entitled to possess, and, correspondingly, the law neither regulates nor limits possible Government decisions concerning municipalities. Thus, in the opinion of the petitioner, it is a decision of the Government that regulates the activity of a municipality, but not a law. It obviously contradicts Paragraph 3 of Article 119 of the Constitution that stipulates that “the procedure for the <...> activities of self-government institutions shall be established by law”.

Furthermore, the petitioner alleges that, in addition, such a provision of Paragraph 1 of Article 6 of the Law on Land contradicts the provision of Paragraph 2 of Article 120 of the Constitution by which municipalities shall act freely and independently within the limits of their competence. The fact that the Government by its decision can deprive a municipality of the right to possess State land, disallows the municipality to act freely and independently while possessing State land.

This provision, in the opinion of the petitioner, contradicts Articles 97 and 98 of the Civil Code of the Republic of Lithuania wherein it is established that the subjects of public property law shall be the State and municipalities in the Republic of Lithuania whereas land shall be an object of public property law with the exception of the cases when these objects belong by the ownership right to other subjects of property law.

Item 5 of Article 21 of the Law on the Government of the Republic of Lithuania prescribes: “The Government of the Republic of Lithuania shall: <...> 5) hold, use and dispose of the State property according to the procedures and situations established by law.” Meanwhile, in the opinion of the petitioner, the Law on Land has not established any procedures and situations according to which the Government possesses, utilises and disposes of State land, it is obvious, however, that, in the Law of Land, the Government and municipalities should be equal and not subordinate subjects of public property law.

  1. Paragraph 2 of Article 6 of the Law on Land prescribes: “The possessor of State land shall have the right, without exceeding the given authority, to utilise the land, to lease the land to other natural and legal persons for the period of up to 3 years, as well as to adopt decisions regarding the allotment of land for utilisation to natural and legal persons providing the laws and legal acts do not prescribe otherwise.” Thus, it is established by law that a local self-government institution which acquired the right to possess State land by the decision of the Government may lease it to other natural and legal persons for the period not exceeding 3 years.

The petitioner alleges that because of such a limitation on municipal rights, municipalities are not allowed to freely and independently plan and promote their socio-economic development while establishing municipal enterprises or giving permissions to establish private enterprises, as it requires a long-term land lease but not that of 3 years. The actual right of self-government institutions to freely and independently plan and promote socio-economic development of their territory is a traditional and one of the most important rights of self-government. Such a right cannot be implemented without the independent and factual right of self-government institutions to lease to private entities of economy for a long term the State land which is possessed by municipalities. The petitioner assumes, therefore, that the provision of Paragraph 2 of Article 6 of the Law on Land by which municipalities are allowed to lease the State land which is possessed by them only up to the period of only 3 years contradicts Articles 119 and 120 of the Constitution.

The petitioner also alleges that municipalities which are closest to the public know people’s interests better if compared with other government institutions. The provision that municipalities are allowed to lease the State land that is possessed by them up to the period of only 3 years diminishes municipal opportunities to promote economic efforts and initiative which are useful to the community, and this contradicts Paragraph 2 of Article 46 of the Constitution that stipulates: “The State shall support economic efforts and initiative which are useful to the community.”

  1. Paragraph 1 of Article 24 of the Law on Land stipulates: “State land shall be sold or in any other way transferred into private ownership by the county governors in accordance with the procedure established by law and the Government of the Republic of Lithuania.”

The petitioner alleges that the provision according to which the Government must establish by its decision as to what procedure state (public) property is transferred into private one contradicts Paragraph 2 of Article 128 of the Constitution wherein it is established: “Procedures concerning the management, utilisation, and disposal of State property shall be established by law.” He is of the opinion that in case that the Constitution provided that “procedures shall be established by law”, the content of those procedures must be established by the law-maker and not the Government. Therefore, the law-maker may not transfer to anyone else, including the Government, this right which has been commended to it as it was made in regard of State land in Paragraph 1 of Article 24 of the Law on Land.

  1. It is established in Paragraph 2 of Article 24 of the Law on Land: “While making contracts of sale and purchase as well as of lease and use of land plots, either the county governor or, upon of his authorisation, the head of the county governor’s administration service for organisation of land exploitation and geodesy shall represent the State.” The provision that “the county governor <...> shall represent the State”, in the opinion of the petitioner, contradicts Paragraph 2 of Article 77 of the Constitution wherein it is established that only the President of the Republic shall represent the State of Lithuania.

The said provision also contradicts Article 9 of the Law of the Republic of Lithuania on the Governing of the County wherein it is prescribed that the county governor may adopt decisions concerning making contracts of sale and purchase as well as of lease and use of land if this is related to the land reform (Item 3 of Article 9) or if this is free state land stock which has not been transferred into the possession of the institutions of self-government (Item 1 of Article 9). In all other cases the county governor shall merely perform legal registration of land (Item 2 of Article 9).

The petitioner is of the opinion that the impugned norm contradicts Article 99 of the Civil Code, too, which stipulates: “The possessions of the State and municipalities shall be managed, utilised and disposed of by corresponding institutions of the supreme authority and governance, as well as those of local authority and governance, of the Republic of Lithuania on the grounds of laws and other normative acts of the Republic of Lithuania.” The petitioner deems that it is impossible to believe that the county governor, not to mention the head of the county governor’s administration service for organisation of land exploitation and geodesy who is authorised by the latter, is an institution of the supreme authority and governance, as, according to Paragraph 1 of Article 1 of the Law on the Governing of the County, the county is only a higher territorial administrative unit of the Republic of Lithuania whereas the county governor is an institution through which the Government shall organise the governing in this territory.

  1. The petitioner also assumes that the provision of Article 24 of the Law on Land that either the county governor or the head of the service for organisation of land exploitation and geodesy who is subordinate to the former shall sell, lease or transfer to use State land irrespective of who is entitled to possess it contradicts the provision of Paragraph 2 of Article 120 of the Constitution which reads: “Municipalities shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws”. In the opinion of the petitioner, taking into account that the county governor may sell, lease or confer the right to use state free land stock which self-government institutions are granted to possess pursuant to Item 1 of Article 9 of the Law on the Governing of the County, then municipalities cannot freely and independently implement this legitimate right of theirs.

On the grounds of the arguments set forth, the petitioner requests the Constitutional Court to recognise that the norms regulating the rights of self-government institutions in the sphere of the possessing of State land of Paragraphs 1 and 2 of Article 6 of the Law on Land passed on 26 April 1994 and amended on 13 June 1995 contradict Article 119, Paragraph 2 of Article 120 and Paragraph 2 of Article 46 of the Constitution, whereas Article 24 of the said law contradicts Paragraph 2 of Article 77 and Paragraph 2 of Article 120 of the Constitution.

The representatives of the petitioner in essence reiterated the request and arguments of the group of Seimas members.

II

At the court hearing, the representative of the Seimas, the party concerned, provided the following explanations:

  1. According to Paragraph 1 of Article 5 of the Constitution, “in Lithuania, the powers of the State shall be exercised by the Seimas, the President of the Republic and the Government, and the Judiciary”. Thus, the representative of the party concerned is of the opinion that municipalities do not exercise the powers of the State, therefore, they may not take over the functions of the State to dispose of State land as municipalities are a subject of neither State land law nor land property law in general (Paragraph 1 of Article 47 of the Constitution). When the Law on Supplementing Article 47 of the Constitution of the Republic of Lithuania, as well as the Constitutional Law on the Subjects, Procedure, Terms and Conditions of and Limitations on the Acquisition into Ownership of Land Plots Provided for by Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania, has gone into effect, municipalities will be able to acquire from the State into their possession only such land that is designed to exploit buildings and facilities which are necessary to perform their functions or to build them pursuant to the same procedure and conditions that are applied to every other national subject (legal person).
  2. The representative of the party concerned alleges that the following normative acts establish the property rights of the State and municipalities:

1) Paragraph 3 of Article 95 of the Civil Code:

“Public property shall consist of State property and municipal property”;

2) Paragraph 1 of Article 951 of the Civil Code:

“Natural persons, legal persons, the State and municipalities may be subjects of property law in the Republic of Lithuania”;

3) Article 98 of the Civil Code:

“In the Republic of Lithuania, the objects of public property law shall be:

1) land, natural resources, except for the cases when these objects belong to other subjects of property law by the right of ownership;

2) material resources assigned to implement the functions as well as the fulfilment-management functions of the supreme powers of the State and of municipalities of the Republic of Lithuania;

3) a portion of the possessions which belong to the Republic of Lithuania or a municipality together with other subjects of property law by the right of shared property;

4) the possessions of state (municipal) enterprises, offices and organisations;

5) state (municipal) banks and financial resources of budgets.”

In the opinion of the representative of the party concerned, when these Civil Code provisions are applied to State land, they may not contradict Article 47 of the Constitution, i.e., only the State may be the subject of state land law.

The representative of the party concerned alleges that the right of the State to transfer the possessions that belong to it to other institutions is provided for in Article 96 of the Civil Code which establishes that “the owner shall possess the property which belongs to him, he shall use and dispose of it according to the laws of the Republic of Lithuania, however, he may not violate the rights and legitimate interests of other persons”. Paragraph 2 of the said article stipulates: “The owner must allow other persons, the State or the municipality to use his property in limited manner in cases and under the conditions provided for in laws and to the extent the laws allow doing so.” Article 99 of the Civil Code also establishes this right of the State wherein it is stipulated that “the possessions of the State and municipalities shall be managed, utilised and disposed of by corresponding institutions of the supreme authority and governance, as well as those of local authority and governance, of the Republic of Lithuania on the grounds of laws and other normative acts of the Republic of Lithuania.” Furthermore, Paragraph 2 of the said article provides that “state or municipal enterprises, offices and organisations shall manage, utilise and dispose of corresponding possessions of the State or a municipality following their regulations (statutes) on trust”.

The representative of the party concerned assumes that, according to the provisions of the aforementioned articles, the possession and utilisation of property following the procedure established not only by means of laws, but other normative acts, too, are allowed. Besides, the State as the owner of the property (land) is entitled to establish conditions regarding the possessing and use of this property. In his opinion, the following causes determine state regulation in the sphere of the possession and use of land:

1) The implementation of land reform. According to Article 3 of the Republic of Lithuania’s Law on Land Reform, “the object of land reform shall be the Land Fund of the Republic of Lithuania”. This means that land reform is an integral process and it may not be commissioned to be accomplished to several institutions. According to Item 3 of Article 9 of the Law of the Governing of the County, the county governor shall implement land reform, and according to Item 1 of the said article, he shall manage free state land stock, with the exception of land transferred into the possession for municipal institutions.

2) Economic functions. Following the Republic of Lithuania’s Law on Territorial Planning, the regulations of and control over the utilisation of the State land, as well as permission to use it, its lease, management and supervision must be ensured by the institutions which are responsible for these possessions. Paragraph 1 of Article 123 of the Constitution stipulates: “In higher level administrative units, the administration shall be organised by the Government according to the procedure established by law.” In the Law on the Governing of the County, the competence of the Government and that of its commissioned institutions are set forth wider, namely:

  1. a) Paragraph 1 of Article 1 stipulates: “The county is a higher territorial administrative unit of the Republic of Lithuania, the governing of which shall be organised by the Government through the governor of the county, the Ministries and other Government institutions. The government of the county is a constituent part of state administration”;
  2. b) Article 8 establishes the powers of the county governor in the sphere of territorial planning and monument conservation;
  3. c) Article 9 establishes the powers of the county governor in the sphere of land use planning, land cadastre and agriculture. Item 4 of this article stipulates that the county governor shall “perform state regulation of land servitude (ownership) and land use, as well as state control over land use”.

The representative of the party concerned also assumes that Article 30 of the Law on Land establishes corresponding functions and competence of State institutions in regulating relations pertaining to land wherein the competence (in accordance with other laws) of local self-government institutions is explicitly set forth. Therefore, in his opinion, it is impossible to assert that there exist no legal provisions regulating the procedure of the local self-government institutions’ activities while possessing allotted to them free stock of State land. The representative of the party concerned is of the opinion that this procedure does not contradict the Law on Self-Government.

  1. The representative of the party concerned also alleges that the question raised by the petitioner as to why the Government, but not a law, establishes which land is transferred into the possession of municipalities may not be associated with Paragraph 3 of Article 119 of the Constitution as this part merely mentions the procedure of the activities of local self-government institutions but not the portion of State property which is allotted to them to possess. In his opinion, the requirement that only law should establish as to what particular land plots must be transferred to municipalities and how they must be managed is not a grounded one as there exists no law which were particularised to such an extent that it were adjusted to implement directly (e.g., the provisions regarding the taking of land of Article 32 of the Law on Land were particularised in the procedure approved in the Government Resolution (No. 1379) “On Submitting and Examining Requests Regarding the Taking of Land for Public Needs as Well as Confirming the Procedure of Recovering the Losses Suffered from the Taking of Land” of 24 October 1995, whereas the provisions concerning allotment of State land for use of Article 22 of the Law on Land were particularised in the Government Resolution (No. 1428) “On the Procedure for Allotting State Land for Use” of 13 November 1995, etc.).

The representative of the party concerned assumes that the fact that there exist limitations on the rights of local self-government executive institutions to lease the land which has been allotted into their possession is determined by the specific character of use and privatisation of land during the land reform. State land plots are not steady because they are gradually privatised: they are (in rural areas) returned in equivalent kind, they are allotted to become one’s property or sold, also they are allotted for use or leased for long term by giving the right to build capital buildings. During the land reform, the decisions regarding the aforementioned questions are adopted only by the county governor and the Government.

  1. In the opinion of the representative of the party concerned, the allegation of the petitioner that “in the Law of Land, the Government and municipalities should be equal and not subordinate subjects of the public property law” is not a correct one because they are not subjects of equal value in respect of land property law. In the assumption of the representative of the party concerned, the county governors shall have the right to dispose of State land pursuant to Articles 7, 17 and 19 of the Law on Land Reform, Article 24 of the Law on Land, as well as Article 9 of the Law on the Governing of the County. According to Item 5 of Article 21 of the Law on the Government, the Government shall “hold, use and dispose of the State property according to the procedures and situations established by law”, and, according to Item 10 of Article 12 of the Law on the Governing of the County, when exercising the powers granted to him, the county governor shall have the right “in cases and according to the procedure established by law, to manage, utilise, and dispose of state property”. The representative of the party concerned is of the opinion that municipal institutions are not granted such a right, however, when the Constitutional Law on the Subjects, Procedure, Terms and Conditions of and Limitations on the Acquisition into Ownership of Land Plots Provided for by Paragraph 2 of Article 47 of the Constitution has gone into effect, municipalities will have the right to dispose of land which they have acquired as property, and, furthermore, they have already entered into the State land possession and management process by implementing the documents of territorial planning, viz., by establishing the character and conditions of activities, construction regulations, co-ordinating the boundaries of land plots which are formed, etc.
  2. The representative of the party concerned assumes that the allegation of the petitioner that the provision of Paragraph 2 of Article 24 of the Law on Land that while making land contracts, either the county governor or, upon of his authorisation, another person shall represent the State contradicts Paragraph 2 of Article 77 of the Constitution wherein it is established that only the President of the Republic shall represent the State of Lithuania is not a correct one. Paragraph 2 of Article 77 of the Constitution prescribes that the President of the Republic “shall perform all the duties which he or she is charged with by the Constitution and laws”. In the opinion of the representative of the party concerned, the President of the Republic, as one of the subjects of State authority, is commissioned by no law with solving questions concerning the sale, possession or use of land, meanwhile, the county governor is permitted to dispose of State land by the aforementioned articles of the Law on the Governing of the County, the Law on land Reform, and the Law on Land.

In the opinion of the representative of the party concerned, by the provisions of these legal acts, it was attempted to ensure land management during the time period when land reform is carried out, to avoid the fissure of structures implementing the reform, as well as to include the executive institutions of municipalities to participate in this process as much as possible.

The representative of the party concerned, on the grounds of the arguments set forth, alleged that the request of the petitioner is not a grounded one.

The Constitutional Court

holds that:

Paragraph 1 of Article 47 of the Constitution prescribes: “Land, internal waters, forests, and parks may only belong to the citizens and the State of the Republic of Lithuania by the right of ownership”.

Article 54 of the Constitution consolidates the constitutional principle of protection of land, along with other major entities of nature.

It may be seen from Articles 47 and 54 of the Constitution that land is estimated as a universal value the main social function of which is to serve the welfare of the nation. Therefore, it is especially important that this value were used rationally and effectively. This grounds an objective necessity as well as duty for the state to regulate land property relations so that all interests of subjects of land legal relations were co-ordinated and the main function of land were ensured. While regulating land relations, the provision of Article 10 of the Constitution may not be forgotten which consolidates the principle of the integrity and indivisibility of the territory of the State of Lithuania. Naturally, the rights of land owners must be such that they would not become dependent on arbitrary will of other land legal relations’ subjects, namely, its managers and users. This is also applicable to the rights of the state as the only owner of state land.

It should be noted that the legal status of State land was formed on the basis of Lithuanian law traditions, too. In view of historical perspective, it could be observed that, in the past, the State of Lithuania had the exclusive right to possess state land belonging to it by the property right so that it were properly used in general welfare of the nation. This is confirmed in Article 90 of the 1922 Constitution, Article 91 of the 1928 Constitution, Article 53 of the 1938 Constitution. On 11 March 1990, after the Independent State of Lithuania had been reinstated, this right of the State was consolidated in the Provisional Basic Law (Articles 45 and 46).

The processes of the restoration of ownership right to land and land reform which take place presently in the State are inseparable from each other and realised through one common object—land. When ensuring the development of these processes, it is necessary to co-ordinate interests of various subjects as much as possible. It should be noted that neither the Constitution, nor other effective laws deny the State’s possibility of choosing priorities in the sphere of regulated legal relations and establishing certain specific requirements to corresponding subjects, in this case to managers of State land and its users. The purpose of land determines specific features of the regulations of land legal relations.

It is established in the 20 June 1996 Constitutional Law on Supplementing Article 47 of the Constitution of the Republic of Lithuania, as well as in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of and Limitations on the Acquisition into Ownership of Land Plots Provided for by Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania (hereinafter in the ruling referred to as the Constitutional Law), that municipalities will have the right to acquire, as property, land plots for non-agriculture purposes. By granting the right to municipalities to acquire, as property, such land plots which have the said purpose, it is indicated, together with the other conditions, limitations and corresponding procedure, that these plots will be allowed to be used only for the construction and exploitation of buildings and facilities which are necessary to perform immediate municipal functions. It is also important that the Constitutional Law will go into effect only after the Europe Agreement which establishes an association of European Communities and their Member States and the Republic of Lithuania has entered into force.

It should be noted that the constitutional consolidation of the right of municipalities to acquire land as property and its development in other laws is a new phenomenon in the evolution of local self-government institutions in Lithuania. The legislature will design a new system of legal norms on the law level to regulate the would-be land property relations. This is in conformity to the essence and purposes of the European Charter of Local Self-Government of 1985.

However, at present municipalities are not land owners as yet, therefore, they may be not regarded as subjects of land property relations which are equal with the State. Thus, the conclusion should be made that the norms of civil law regulating property relations in general and protecting the rights of property relations’ subjects may not be applied to protection of not existing even though potential or attempted rights of municipalities to land property. Therefore, when judging problems concerning land, one must, first of all, invoke land laws.

The circumstances set forth must be primarily considered while judging the impugned norms of the Law on Land.

  1. On the compliance of the norms of Article 6 the Law on Land regulating the rights of local self-government institutions in the sphere of the possession of state land with Paragraph 2 of Article 46, as well as Article 119 and Paragraph 2 of Article 120 of the Constitution.

1.1. The owner or, upon his authorisation, other persons are entitled to transfer the possessions to other persons. It established in Item 5 of Article 21 of the Law on the Government that the Government shall “hold, use and dispose of State property according to the procedures and situations established by law”. Thus, the Government performs the functions of the state property (in the case under investigation—state land) owner. The purpose of land, if compared to other objects of immovable property, conditions specific legal regulation of land relations, too.

According to the Law on Local Self-Government, the competence of local self-government institutions in the sphere of legal relations regarding possession of State land is not the main (independent) but that delegated by the State (Articles 14 and 16). The Constitutional Court holds that pursuant to Paragraph 1 of Article 6 of the Law on Land the State shall delegate the right to possess State land to local self-government institutions by commissioning the Government to register it officially. Thus, the Government as an institution which implements the functions of the State property owner is empowered to grant the right to other subjects to possess State property by the procedure established by the Constitution and laws.

The Constitutional Court assumes that the provision of Paragraph 1 of Article 6 of the Law on Land that the Government by its decision shall grant the right to possess State land does not provide with the grounds to assert that thereby the content of the right of municipalities to possess land is established. The content of the right to possess land is regulated in laws (the Law on Land, the Law on Land Reform, the Law on the Leasing of Land, etc.). This means that the Seimas has not delegated the right to the Government to define the content of the right granted to municipalities to possess State land. The Seimas, however, may commission the Government to adopt a relevant act by which State land would be transferred to municipalities as the right of possession. It should be noted that, after the aforesaid Constitutional Law has been applied, municipalities will be allowed to have the right of ownership to land.

At the same time, the Constitutional Court notes that the provision “by the decision of the Government” of Paragraph 1 of Article 6 of the Law on Land leaves a possibility of interpreting its content in a dubious manner, as well as of conceiving the limits of legal regulation in a vague manner. However, the interpretation of legal notions must be not only literal but also logical and systemic. Such interpretation methods of the notion “by the decision of the Government” leaves no grounds to assert that Paragraph 1 of Article 6 of the Law on Land allows the Government to interfere with the competence of municipal activities that are established by law in the sphere of the possession of the transferred State land. Therefore, the allegation that the provision of Paragraph 1 of Article 6 of the Law on Land allows the Government to define the whole content of the right of municipalities to possess land is not a grounded one.

1.2. It is established in Paragraph 2 of Article 6 of the Law on Land that the possessor of State land shall have the right, without exceeding the given authority, to utilise the land, to lease the land to other natural and legal persons for the period of up to 3 years, as well as to adopt decisions regarding the allotment of land for utilisation to natural and legal persons providing the laws and legal acts do not prescribe otherwise.

Such rights of municipalities in the sphere of land possession are determined by the legal status of State land. The State as a subject of public property law by giving the right to manage the possessions which are its property may impose certain limitations on the management and use of its possessions, e.g., servitude, certain limitations on the term of land leasing contracts, a prohibition on changing the major purpose of land use without the consent of the owner, etc. However, only law may establish limitations on the possession of State land. As regards the impugned norm, this is established in Paragraph 2 of Article 6 of the Law on Land and Paragraph 5 of Article 9 of the Law on the Leasing of Land.

Thus, all the restrictions concerning the management of State possessions as established by law provide with no ground for asserting that this limits the economic efforts and initiative useful to the community.

In view of all arguments set forth, the conclusion should be drawn that the norms of Article 6 the Law on Land regulating the rights of local self-government institutions in the sphere of the possession of state land are in compliance with Paragraph 2 of Article 46, as well as Article 119 and Paragraph 2 of Article 120 of the Constitution.

  1. On the compliance of Article 24 of the Law on Land with Paragraph 2 of Article 77 and Paragraph 2 of Article 120 of the Constitution.

2.1. Paragraph 1 of Article 24 of the Law on Land stipulates: “State land shall be sold or in any other way transferred into private ownership by the county governors in accordance with the procedure established by law and the Government of the Republic of Lithuania.” The petitioner alleges that the provision of this law “in accordance with the procedure established <...> by the Government” violates Paragraph 2 of Article 128 wherein it is prescribed: “procedures concerning the management, utilisation, and disposal of State property shall be established by law”.

According to Item 2 of Article 94 and Item 2 of Article 21 of the Law on the Government, the Government shall implement laws and resolutions of the Seimas concerning the implementation of laws. Consequently, legal acts adopted by the Government may not contradict laws or change the content of the legal norm, in this case, land relations regulated by the Law on Land. The commission for the Government to regulate the procedure of State property transfer as consolidated in Paragraph 1 of Article 24 of the Law on Land must also be accomplished on legal basis.

Thus, if the Seimas’ commission for the Government to establish the procedure of State property transfer as indicated in Paragraph 1 of Article 24 of the Law on Land were understood as the requirement of the legislature to establish the procedure of the process of the property transfer or as a general requirement to adopt a corresponding legal act which is in conformity to laws, the impugned norm would be in compliance with the Constitution. Therefore, the doubt alone that the wording of the impugned norm of the Law on Land may be understood ambiguously is insufficient to ground the statement that the provision “in accordance with the procedure established <...> by the Government” of Paragraph 1 of Article 24 of the Law on Land contradicts Paragraph 2 of Article 120 of the Constitution.

Alongside, the Constitutional Court notes that such a wording of the said norm is a defective one as obscurities may arise whether the law or the substatutory act is the genuine source of regulation of land relations. This is so because Paragraph 1 of Article 24 of the Law on Land does not particularise the competence of the legislature and the Government in the sphere of establishing the procedure of the transfer of State land into private ownership. A more precise wording of the impugned norm of Paragraph 1 of Article 24 of the Law on Land is necessary because of the imperative requirement of Item 6 of Article 10 of the Constitutional Law stipulating that the Government shall establish only procedures of decisions regarding issues of acquiring land as property.

2.2. Paragraph 2 of Article 24 of the Law on Land prescribes: “While making contracts of sale and purchase as well as of lease and use of land plots, either the county governor or, upon of his authorisation, the head of the county governor’s administration service for organisation of land exploitation and geodesy shall represent the State.” The petitioner is of the opinion that the provision “the county governor <...> shall represent the State” contradicts Paragraph 2 of Article 77 of the Constitution which stipulates that the President of the Republic shall represent the State of Lithuania.

In the opinion of the Constitutional Court, this constitutional norm has a different meaning. Paragraph 2 of Article 77 of the Constitution means, first of all, that the function of the President of the Republic as the head of the State is to represent the State of Lithuania in the sphere of international relations, i.e., the relations with other states and international organisations. It is, in essence, the representative function of the head of the state. Actually, similar functions are performed by the heads of other supreme institutions of authority—the Seimas and the Government. Nonetheless, it is impossible to link the sense of Article 77 of the official representation of the state with the granting of any particular rights and powers let alone representation in property relations. The procedure of representation in the sphere of civil legal relations is established by the Civil Code and other laws.

In the sphere of internal affairs, the state may be represented by other state officials who are obligated by law or other legal act that establishes their competence. In this impugned case, the commissions of the county governor to represent the state in the sphere of civil legal relations while making contracts of sale and purchase as well as of lease and use of land plots are prescribed not only in Paragraph 2 of Article 24 of the Law on Land but also in the Law on the Governing of the County.

2.3. The provision “State land shall be sold or in any other way transferred into private ownership by the county governors in accordance with the procedure established by law and the Government of the Republic of Lithuania” of Paragraph 1 of Article 24 of the Law on Land does not restrict possibilities of municipalities to act freely and independently within the competence which shall be established by the Constitution and the laws as the county governor may sell, lease or grant the right to use only state free land stock. State free land is land which has not been transferred, leased or given for use to other subjects and local self-government institutions. This is established in Item 1 of Article 9 of the Law on the Governing of the County. It provides that the county governor shall “manage state free land stock, with the exception of land transferred into the possession of the local self-government institutions”. Thus, the impugned provision of Paragraph 1 of Article 24 of the Law on Land is in compliance with the norm “municipalities shall act freely and independently within the limits of their competence which shall be established by the Constitution and laws” of Paragraph 2 of Article 120 of the Constitution.

2.4. The arguments of the petitioner concerning the inconsistency of the impugned provision of Paragraph 2 of Article 24 of the Law on Land with Article 9 of the Law on the Governing of the County and with Article 99 of the Civil Code are related to issues of collision of laws which must be assessed by the legislature, but never by the Constitutional Court (Article 1 of the Law on the Constitutional Court).

On the grounds of the arguments set forth, the conclusion should be drawn that Article 24 of the Law on Land is in compliance with Paragraph 2 of Article 77 and Paragraph 2 of Article 120 of the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 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 gives the following

ruling:

To recognise that the norms of Paragraphs 1 and 2 of Article 6 of the Republic of Lithuania’s Law on Land regulating the rights of local self-government institutions in the sphere of the possession of State land as well as Article 24 of the said law are in compliance with the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is pronounced in the name of the Republic of Lithuania.

Justices of the Constitutional Court:

 Egidijus Jarašiūnas                           Kęstutis Lapinskas                           Zigmas Levickis

 Augustinas Normantas                    Vladas Pavilonis                              Jonas Prapiestis

 Pranas Vytautas Rasimavičius         Juozas Žilys