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On returning a petition to the petitioner

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER THE PROVISIONS OF THE REPUBLIC OF LITHUANIA’S LAW ON THE FINANCING OF THE ROAD MAINTENANCE AND DEVELOPMENT PROGRAMME AND THE PROVISIONS OF THE DESCRIPTION OF THE PROCEDURE FOR THE USE OF THE FUNDS FOR THE FINANCING OF THE ROAD MAINTENANCE AND DEVELOPMENT PROGRAMME, AS APPROVED BY THE 21 APRIL 2005 RESOLUTION (NO. 447) OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA, ARE NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 28 August 2014, No. KT38-S27/2014
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, Algirdas Taminskas, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

At its procedural sitting, the Constitutional Court considered the petition (No. 1B-46/2014) of a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into “whether the size of financing available for municipalities and the criteria for distributing these funds which are both established in Paragraph 4 of Article 10 of the Republic of Lithuania’s Law on the Financing of the Road Maintenance and Development Programme and in Items 3 and 5 of the Description of the Procedure for the Use of the Funds for the Financing of the Road Maintenance and Development Programme, as approved by the 21 April 2005 resolution (No. 447) of the Government of the Republic of Lithuania, are not conflict with Articles 21, 29, and 94 of the Constitution of the Republic of Lithuania and the constitutional principles of justice and a state under the rule of law”.

The Constitutional Court

has established:

The Constitutional Court received the petition of a group of members of the Seimas requesting an investigation into whether the size of financing available for municipalities and the criteria for distributing these funds which are both established in the provisions of Paragraph 4 of Article 10 of the Republic of Lithuania’s Law on the Financing of the Road Maintenance and Development Programme (hereinafter also referred to as the Law) and in the provisions of Items 3 and 5 of the Description of the Procedure for the Use of the Funds for the Financing of the Road Maintenance and Development Programme (hereinafter also referred to as the Description), as approved by the Resolution of the Government of the Republic of Lithuania (No. 447) “On the Implementation of the Republic of Lithuania’s Law on the Financing of the Road Maintenance and Development Programme” of 21 April 2005 (hereinafter also referred to as government resolution No. 447 of 21 April 2005), are not conflict with Articles 21, 29, and 94 of the Constitution and the constitutional principles of justice and a state under the rule of law.

The Constitutional Court

holds that:

  1. A group of members of the Seimas, the petitioner, requests an investigation into whether the legal regulation consolidated in the provisions of Paragraph 4 of Article 10 of the Law and in the provisions of Items 3 and 5 of the Description, as approved by government resolution No. 447 of 21 April 2005, is not in conflict with Articles 21, 29, and 94 of the Constitution and the constitutional principles of justice and a state under the rule of law.
  2. Under Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court of the Republic of Lithuania, the petition requesting an investigation into the compliance of a legal act with the Constitution, by means of which an application is made to the Constitutional Court, must contain the position of a petitioner concerning the compliance of an appropriate act with the Constitution and the legal support of such a position containing references to laws. The petition must also contain a clearly and precisely formulated request to the Constitutional Court (Item 9 of Paragraph 1 of Article 66 of the Law on the Constitutional Court).

When construing the aforesaid provisions of the Law on the Constitutional Court, the Constitutional Court has held on more than one occasion that the position of a petitioner concerning the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the scope of regulation must be indicated clearly and unambiguously, the petition must contain the arguments and reasoning grounding the doubt of the petitioner that the legal act (part thereof) is in conflict with the Constitution. Consequently, the petition requesting an investigation into the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the scope of regulation must clearly indicate concrete articles (parts thereof) or items of the legal act, the compliance of which with the Constitution is doubtful from the petitioner’s viewpoint, also concrete provisions—norms and/or principles—of the Constitution, with which, in the opinion of the petitioner, the concretely indicated articles or items of the impugned legal act are in conflict (the Constitutional Court’s decision of 11 December 2012). The petition requesting an investigation into the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the scope of regulation must also clearly set forth the legal reasoning grounding the doubt of the petitioner as regards every concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution is doubted by the petitioner. Otherwise, the petition requesting an investigation into the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the scope of regulation must be considered not to be in line with the requirements of Article 66 of the Law on the Constitutional Court (inter alia, the Constitutional Court’s decisions of 29 March 2006, 19 March 2010, 5 March 2012, 11 December 2012, and 8 January 2013).

It should be noted that, if the petition requesting an investigation into the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the scope of regulation indicates neither any concrete articles (parts thereof) or items of the legal act, the compliance of which with the Constitution is doubted by the petitioner, nor any concrete provisions—norms and/or principles—of the Constitution, with which, in the opinion of the petitioner, the concretely indicated articles (parts thereof) or items of the impugned legal act are in conflict in view of the content of norms and/or the scope of regulation, nor the legal reasoning grounding the doubt of the petitioner concerning each concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution in view of the content of norms and/or the scope of regulation is doubted by the petitioner, and if such a petition were accepted at the Constitutional Court and a case were commenced subsequent to it, one would also restrict the rights of the party concerned, the state institution that has passed the impugned legal act, since it would be more difficult for the party concerned to present explanations concerning the arguments of the petitioner and to prepare for judicial consideration (the Constitutional Court’s decisions of 16 April 2004, 19 March 2010, 11 December 2012, and 8 January 2013).

  1. On 12 October 2000, the Seimas adopted the Law on the Financing of the Road Maintenance and Development Programme, which, by means of the Republic of Lithuania’s Law Amending the Law on the Financing of the Road Maintenance and Development Programme that was adopted on 9 November 2004, was set forth in its new wording.

3.1. Paragraph 4, the compliance of which with the Constitution is impugned by the petitioner, of Article 10 of the Law prescribed: “The annual estimates must provide for the use of 20 percent of the funds for the financing of the Programme for the state and municipalities to build, repair, and maintain roads of local importance (streets) and to ensure road safety conditions.”

3.2. On 17 December 2013, the Seimas adopted the Republic of Lithuania’s Law Amending Article 10 of the Law on the Financing of the Road Maintenance and Development Programme, by means of Article 1 of which it amended Paragraph 4 of Article 10 of the Law (wording of 9 November 2004) and set it forth as follows: “The annual estimates must provide for the use of 25 percent of the funds for the financing of the Programme for the state and municipalities to build, repair, and maintain roads of local importance (streets) and to ensure road safety conditions.”

Thus, Paragraph 4, which is impugned by the petitioner, of Article 10 of the Law is no longer in force, and, under the legal regulation consolidated in Paragraph 4 (wording of 17 December 2013) of Article 10 of the Law (wording of 9 November 2004), 25 rather than 20 percent of the funds for the financing of the Road Maintenance and Development Programme (hereinafter also referred to as the Programme) is allocated to finance roads of local importance.

  1. On 21 April 2005, the Government adopted resolution No. 447, by means of which it approved, inter alia, the Description of the Procedure for the Use of the Funds for the Financing of the Road Maintenance and Development Programme.

4.1. Item 3, the compliance of which with the Constitution is impugned by the petitioner, of the Description prescribed:

“3. Each year the Ministry of Transport and Communications shall, within one month after the approval of the state budget of the Republic of Lithuania, submit to the Government of the Republic of Lithuania a draft estimate of the use of the funds for the financing of the Programme for the next year, providing for the use of 75 percent of the funds for the financing of the Programme to compensate for the expenses related to roads of national importance (of these, at least 15 percent for roads of regional importance), also to compensate for the costs related to the carriage, free of charge, of passengers and vehicles by ferry across the Klaipėda State Seaport aquatic environment to/from the Curonian Spit as well as the carriage of the residents of the Šilutė district and their light vehicles across the flooded section of the Šilutė-Rusnė road. The annual estimate of the use of the funds shall provide for a 5 percent reserve of the funds for the financing of the Programme to be used for the financing of the road-related needs of the state. The funds of this reserve shall be used pursuant to the decisions of the Government of the Republic of Lithuania, taking into account the proposals of the Ministry of Transport and Communications or municipalities, to implement the programmes approved by the said authorities in times when funds are scarce and also to provide financing in extraordinary cases pertaining to ensuring the development, modernisation, and functioning of the road network. The annual estimates must provide for the use of 20 percent of the funds for the financing of the Programme for the state and municipalities to build, repair, and maintain roads of local importance (streets) and to ensure road safety conditions.”

Item 5, the compliance of which with the Constitution is also impugned by the petitioner, of the Description prescribed:

“5. The funds for the financing of the Programme which are intended to build, repair, and maintain roads of local importance (streets) and to ensure road safety conditions shall be used as follows:

5.1. for interior roads of local importance (in forests, national parks, state protected areas, border areas)—4 percent;

5.2. to provide target financing for local roads of national importance (streets (categories A, B, C, E)) which are included in a list drawn up by the Ministry of Transport and Communications after having coordinated it with the Ministry of the Interior—20 percent to be allocated as follows:

5.2.1. under municipal programmes approved to finance road-related needs and in extraordinary cases pertaining to ensuring the development, modernisation, and functioning of the road network—18 percent;

5.2.2. for roads of local importance (streets) in the municipalities of Birštonas, Druskininkai, Palanga, and Neringa according to the number of overnight stays in hotels, holiday and health establishments—2 percent;

5.3. the remaining portion of the funds, i.e. 76 percent, shall be distributed to:

5.3.1. city municipalities for roads of local importance (streets)—35 percent to be distributed as follows:

half of this amount according to the number of permanent residents;

a quarter of this amount according to the length of the road (street) network;

a quarter of this amount according to the number of vehicles registered with municipalities;

5.3.2. other municipalities for roads of local importance (streets)—65 percent to be distributed as follows:

half of this amount according to the number of permanent residents in a municipal area;

a quarter of this amount according to the total area of agricultural land in a municipal area;

a quarter of this amount according to the length of municipal roads (streets).”

4.2. It should be noted that Items 3 and 5, which are impugned by the petitioner, of the Description have been amended and/or supplemented on more than one occasion, inter alia, by the Government Resolution (No. 222) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 447) ‘On the Implementation of the Republic of Lithuania’s Law on the Financing of the Road Maintenance and Development Programme’ of 21 April 2005” that was adopted on 5 March 2014.

The comparison of the legal regulation established in Item 3 of the Description with the one established in Item 3 (wording of 5 March 2014) of the Description in the aspect impugned by the petitioner makes it clear that the said legal regulation has changed so that it is now provided that 70 rather than 75 percent of the funds for the financing of the Programme is allocated for the objects of roads of national importance, also that, as of 1 January 2015, 65 percent of the aforementioned funds will be allocated for the said needs, and that 25 rather than 20 percent of the funds for the financing of the Programme is allocated to municipalities for roads of local importance.

The comparison of the legal regulation established in Item 5 of the Description with the one established in Item 5 (wording of 5 March 2014) of the Description in the aspect impugned by the petitioner makes it clear that the said legal regulation has changed so that it is now provided therein that 65 percent of the funds allocated to other (district) municipalities for the maintenance of roads of local importance is distributed in such a way that half of these funds are allocated according to the number of permanent residents in a municipal area and the other half is allocated according to the length of municipal roads.

Thus, the legal regulation that is set forth in the provisions of Items 3 and 5 of the Description and impugned by the petitioner has been amended, and currently the legal regulation that is set forth in Items 3 and 5 (wording of 5 March 2014) of the Description is in force.

  1. The Constitutional Court has held on more than one occasion that in cases where subjects other than courts, specified in Article 106 of the Constitution, inter alia, a group of not less than 1/5 of all the members of the Seimas, have applied to the Constitutional Court, and the impugned legal act (part thereof) is no longer in force, the Constitutional Court has the right to dismiss the instituted legal proceedings after taking account of the circumstances of the case at issue (inter alia, the Constitutional Court’s rulings of 22 December 2011 and 15 February 2013, and its decision of 8 August 2006).

5.1. It has been mentioned that Paragraph 4, which is impugned by the petitioner, of Article 10 of the Law is no longer in force and, under the legal regulation consolidated in Paragraph 4 (wording of 17 December 2013) of Article 10 of the Law (wording of 9 November 2004), 25 rather than 20 percent of the funds for the financing of the Programme is allocated to finance roads of local importance.

The petitioner does not provide any arguments as to why the Constitutional Court is requested to investigate the legal regulation that is consolidated in Paragraph 4 of Article 10 of the Law and that is no longer in force; in addition, in the reasoning part of its petition, the petitioner also once cites the legal regulation consolidated in Paragraph 4 (wording of 17 December 2013) of Article 10 of the Law (wording of 9 November 2004), therefore, it is not clear which wording of the legal regulation is actually impugned by the petitioner. Thus, the petition of the petitioner requesting an investigation into the compliance of the provisions of the Law with the Constitution is formulated imprecisely.

5.2. It has also been mentioned that the legal regulation that is set forth in the provisions of Items 3 and 5 of the Description and impugned by the petitioner has been amended, and the legal regulation set forth in Items 3 and 5 (wording of 5 March 2014) of the Description is now in force.

The petitioner does not provide any arguments as to why the Constitutional Court is requested to investigate the compliance of the provisions of the original and not the valid wording of Items 3 and 5 of the Description with the Constitution. In addition, the statements formulated in the petition of the petitioner that “the number of residents declared in that municipality rather than the overall length of local roads (streets) is decisive” bears no relation to reality any longer since, under the legal regulation established in Item 5 (wording of 5 March 2014) of the Description, the number of residents registered with a municipality and the length of, and a strain on, roads are equivalent criteria in distributing the funds for the financing of the Programme.

  1. A group of members of the Seimas, the petitioner, requests that the Constitutional Court investigate the compliance of the impugned legal regulation, inter alia, with Article 21, which guarantees the inviolability of the person and human dignity, of the Constitution.

However, the petition of the petitioner does not contain any arguments concerning the non-compliance of the impugned legal regulation with the said provision of the Constitution; the reasoning part of the petition of the petitioner does not even mention the said provision.

  1. The petitioner also requests that the Constitutional Court investigate the compliance of the impugned legal regulation with the principle of the equality of persons before the law which is consolidated in Article 29 of the Constitution.

7.1. The petition of the petitioner takes the position that the size of financing available for municipalities and the criteria for distributing these funds which are both established in the provisions of the Law and the Description are in conflict with the Constitution. As mentioned before, the petitioner maintains that, according to the criteria laid down under the impugned legal regulation, “the number of residents declared in that municipality rather than the overall length of local roads (streets), a strain on them and the number of vehicles registered with that municipality is decisive”. According to the petitioner, the impugned legal regulation discriminates against the residents of less populated municipalities who pay taxes for the maintenance of roads as compared to the residents of more populated municipalities since “access to the equal use of proper and safe local roads is not ensured to them”.

The statements set out in the petition of the petitioner do not make clear which criterion for distributing the funds which is entrenched in the provisions of the Law and/or the Description is not in line with the provisions of the Constitution. It has been mentioned that, under Item 5.3.1 (wording of 5 March 2014) of the Description, the funds are distributed to city municipalities for the maintenance of roads of local importance as follows: half of this amount according to the number of residents whilst a quarter of this amount respectively according to the length of the road network and according to the number of vehicles registered with a municipality (thus, the other half); under Item 5.3.2 (wording of 5 March 2014) of the Description, the funds intended for the maintenance of roads are distributed to district municipalities as follows: half of this amount according to the number of permanent residents in a municipal area and half of this amount according to the length of municipal roads. Thus, the statement of the petitioner that the number of residents registered with a municipality rather than the length of roads and a strain is a decisive criterion in distributing the funds for the maintenance of roads bears no relation to reality since, under the valid legal regulation consolidated in Items 3 and 5 (wording of 5 March 2014) of the Description, the said criteria are of equal value. The petitioner does not assess the overall legal regulation intended for the distribution of the funds for the financing of the Programme, does not take account of the entirety of the criteria for the distribution of the funds, and does not provide any other legal arguments grounding its position on the non-compliance of the impugned legal regulation with the Constitution.

7.2. The petitioner indicates that, under the impugned legal regulation, 35 percent of the intended amount of the funds for the repair of roads is earmarked to city municipalities whilst 65 percent is earmarked to district municipalities, and, due to this fact, in the opinion of the petitioner, thereby the constitutional principle of the equality of rights is also violated since “district municipalities find themselves in a privileged position”.

However, the petitioner does not explain why city and district municipalities should be treated as equal subjects in the aspect impugned by the petitioner (in assessing the distribution of the funds for the maintenance of roads), does not take into account the fact that municipalities differ in their size, infrastructure, the length of roads to be repaired, and does not provide any other arguments grounding its position on the non-compliance of the impugned legal regulation with Article 29 of the Constitution.

  1. The petitioner also requests that the Constitutional Court investigate the compliance of the impugned legal regulation with Article 94 of the Constitution.

In the petition of the petitioner, the official constitutional doctrine regarding the powers of the Government in adopting legal acts is cited; invoking the Constitutional Court’s rulings, it is noted that the Government must follow laws when adopting substatutory legal acts. In view of the Constitutional Court’s jurisprudence, the petitioner maintains that “in exercising the powers conferred to it, the Government of the Republic of Lithuania does not have absolute discretion. On the contrary, the legal regulation established by it must comply with the provisions of laws and the Constitution of the Republic of Lithuania and must not distort the constitutional principles of a state under the rule of law”.

However, in its petition, the petitioner does not relate, in any way, the said provisions of the official constitutional doctrine to the impugned legal regulation, and does not explain which laws or other legal acts were not complied by the Government in establishing the impugned legal regulation. The petitioner does not provide any constitutional arguments which would ground its position that the Government did not have any right to establish the procedure for the use of the funds for the financing of the Road Maintenance and Development Programme and does not assess the fact that the Government is commissioned to do this under Article 10 of the Law (wording of 9 November 2004). The petitioner maintains that “this commissioning to the Government of the Republic of Lithuania may not be made absolute”, however, it does not explain what precisely the Government had to follow in establishing the procedure for the use of the funds for the financing of the Programme and does not indicate how the Government exceeded its powers in establishing the impugned legal regulation.

  1. In its petition, the petitioner also indicates that the impugned legal regulation violates the constitutional principles of justice and a state under the rule of law, inter alia, the legitimate expectations of residents who pay taxes for the repair of roads are not satisfied.

The petitioner cites the provisions of the official constitutional doctrine regarding the principle of the protection of legitimate expectations, however, it does not relate them to the impugned legal regulation, does not disclose what expectations residents who pay taxes for the maintenance of roads may specifically have and how the impugned legal regulation violates the said expectations, and does not provide any arguments which would explain its position on the non-compliance of the impugned legal regulation with the constitutional principle of a state under the rule of law.

In the petition of the petitioner, it is maintained, among other things, that urban roads suffer from a greater strain than regional roads. However, the petitioner also indicates that “irrespective of their departmental dependence, all the roads of this country (both roads of national and local importance) have a common network, therefore, residents’ access to communication and their access to business and transport services are determined by the general condition of the overall infrastructure of roads”. Thus, the petitioner’s statements are incoherent and conflicting.

  1. In the light of the foregoing arguments, it should be held that the petition of a group of members of the Seimas, the petitioner, requesting an investigation into whether the size of financing available for municipalities and the criteria for distributing these funds which are both established in the provisions of Paragraph 4 of Article 10 of the Law and in the provisions of Items 3 and 5 of the Description, as approved by government resolution No. 447 of 21 April 2005, are not in conflict with Articles 21, 29, and 94 of the Constitution and the constitutional principles of justice and a state under the rule of law, is formulated imprecisely and unclearly, the position of the petitioner is not grounded on legal arguments, therefore, the petition of the petitioner does not comply with the requirements established in Items 8 and 9 of Paragraph 1 of Article 66 of the Law on the Constitutional Court.

Under Article 70 of the Law on the Constitutional Court, in the case that a petition (part thereof) fails to comply with the requirements set forth in Article 66 of the Law on the Constitutional Court, the petition is returned to the petitioner. The returning of the petition does not take away the right to apply to the Constitutional Court according to the general procedure after the removal of the deficiencies thereof.

  1. In view of this fact, the conclusion should be drawn that there are grounds to return the petition to a group of members of the Seimas, the petitioner, requesting an investigation into whether the size of financing available for municipalities and the criteria for distributing these funds which are both established in the provisions of Paragraph 4 of Article 10 of the Law and in the provisions of Items 3 and 5 of the Description, as approved by government resolution No. 447 of 21 April 2005, are not in conflict with Articles 21, 29, and 94 of the Constitution and the constitutional principles of justice and a state under the rule of law.

Conforming to Paragraphs 3 and 4 of Article 22, Paragraph 2 of Article 25, Article 28, Items 8 and 9 of Paragraph 1 of Article 66, and Article 70 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To return the petition to a group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into “whether the size of financing available for municipalities and the criteria for distributing these funds which are both established in Paragraph 4 of Article 10 of the Republic of Lithuania’s Law on the Financing of the Road Maintenance and Development Programme, and in Items 3 and 5 of the Description of the Procedure for the Use of the Funds for the Financing of the Road Maintenance and Development Programme, as approved by the 21 April 2005 resolution (No. 447) of the Government of the Republic of Lithuania, are not conflict with Articles 21, 29, and 94 of the Constitution of the Republic of Lithuania and the constitutional principles of justice and a state under the rule of law”.

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

Justices of the Constitutional Court:                                       Elvyra Baltutytė
                                                                                                           Vytautas Greičius
                                                                                                           Danutė Jočienė
                                                                                                           Pranas Kuconis
                                                                                                           Gediminas Mesonis
                                                                                                           Vytas Milius
                                                                                                           Egidijus Šileikis
                                                                                                           Algirdas Taminskas
                                                                                                           Dainius Žalimas