Lt

On the legal consequences of construction violating requirements of legal acts

Case No. 3/2009-24/2009-37/2009-1/2010-3/2010-4/2010-5/2010-11/2010-17/2010-26/2010-
45/2010-57/2010-58/2010-59/2010-60/2010-61/2010

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 3 OF ARTICLE 4.103 (WORDING OF 17 OCTOBER 2006) OF THE CIVIL CODE OF THE REPUBLIC OF LITHUANIA AND PARAGRAPH 3 OF ARTICLE 28 (WORDINGS OF 17 OCTOBER 2006 AND 19 NOVEMBER 2009) OF THE REPUBLIC OF LITHUANIA LAW ON CONSTRUCTION WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

31 January 2011
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Armanas Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis Lapinskas, Zenonas Namavičius, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,

with the secretary—Daiva Pitrėnaitė,

in the presence of the representative of the Seimas of the Republic of Lithuania, the party concerned, who was Konstantas Ramelis, a Member of the Seimas,

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, on 11 January 2011, in a public Court hearing, considered constitutional justice case No. 3/2009-24/2009-37/2009-1/2010-3/2010-4/2010-5/2010-11/2010-17/2010-26/2010-45/2010-57/2010-58/2010-59/2010-60/2010-61/2010 subsequent to:

1) the petition of the Anykščiai District Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 17 October 2006) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-2/2009);

2) the petition of the Šiauliai City Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 17 October 2006) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-26/2009);

3) the petition of the 2nd Vilnius City Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 17 October 2006) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-48/2009);

4) the petition of the Jurbarkas District Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 17 October 2006) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-67/2009);

5) the petition of the Kaišiadorys District Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 19 November 2009) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-1/2010);

6) the petition of the Marijampolė District Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 17 October 2006) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, other circumstances significant to the case, that the obligation to eliminate the consequences of unauthorised construction—within the set time limit to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania (petition No. 1B-2/2010);

7) the petition of the Druskininkai City Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 19 November 2009) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-4/2009);

8) the petition of the Trakai District Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 17 October 2006) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-11/2009);

9) the petition of the Marijampolė District Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 17 October 2006) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, other circumstances significant to the case, that the obligation to eliminate the consequences of unauthorised construction—within the set time limit to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania (petition No. 1B-19/2009);

10) the petition of the Panevėžys City Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 17 October 2006) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-30/2009);

11) the petition of the Marijampolė District Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 17 October 2006) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, other circumstances significant to the case, that the obligation to eliminate the consequences of unauthorised construction—within the set time limit to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-52/2009);

12) the petition of the Druskininkai City Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 19 November 2009) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish the structure should not be applied, since, due to very important circumstances it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-62/2009);

13) the petition of the Kaunas District Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 17 October 2006) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the circumstances significant to the case, as well as while following the criteria of justice and reasonableness, that the consequences of unauthorised construction could be eliminated not only by sole means of obligating the builder to demolish the structure, since, due to some essential circumstances that have transpired in the case, it would be unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-63/2009);

14) the petition of the Klaipėda City Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 17 October 2006) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-67/2009);

15) the petition of the Švenčionys District Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 17 October 2006) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-75/2010);

16) the petition of the Švenčionys District Local Court, a petitioner, requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code of the Republic of Lithuania and Article 28 (wording of 17 October 2006) of the Republic of Lithuania Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-76/2009).

By its decisions of 17 May 2010, 18 May 2010 and 3 January 2011, the Constitutional Court joined the petitions of the petitioners—petition No. 1B-2/2009 of the Anykščiai District Local Court (case No. 3/2009), petition No. 1B-26/2009 of the Šiauliai City Local Court (case No. 24/2009), petition No. 1B-48/2009 of the 2nd Vilnius City Local Court (case No. 37/2009), petition No. 1B-67/2009 of the Jurbarkas District Local Court (case No. 1/2010), petition No. 1B-1/2010 of the Kaišiadorys District Local Court (case No. 3/2010), petitions Nos. 1B-2/2010, 1B-19/2010, 1B-52/2010 of the Marijampolė District Local Court (cases Nos. 4/2010, 17/2010, 45/2010), petitions Nos. 1B-4/2010, 1B-62/2010 of the Druskininkai City Local Court (cases Nos. 5/2010, 57/2010), petition No. 1B-11/2010 of the Trakai District Local Court (case No. 11/2010), petition No. 1B-30/2010 of the Panevėžys City Local Court (case No. 26/2010), petition No. 1B-67/2010 of the Klaipėda City Local Court (case No. 58/2010), petition No. 1B-63/2010 of the Kaunas District Local Court (case No. 59/2010), petitions Nos. 1B-75/2010, 1B-76/2010 of the Švenčionys District Local Court (cases Nos. 60/2010, 61/2010)—into one case and it was given reference No. 3/2009-24/2009-37/2009-1/2010-3/2010-4/2010-5/2010-11/2010-17/2010-26/2010-45/2010-57/2010-58/2010-59/2010-60/2010-61/2010.

The Constitutional Court

has established:

I

1. The Anykščiai District Local Court, a petitioner, was investigating a civil case. By its ruling of 19 December 2008, the said court suspended the investigation of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the Civil Code (hereinafter also referred to as the CC) and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-2/2009).

2. The Šiauliai City Local Court, a petitioner, was investigating a civil case. By its ruling of 21 April 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-26/2009).

3. The 2nd Vilnius City Local Court, a petitioner, was investigating a civil case. By its ruling of 6 October 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-48/2009).

4. The Jurbarkas District Local Court, a petitioner, was investigating a civil case. By its ruling of 21 December 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-67/2009).

5. The Kaišiadorys District Local Court, a petitioner, was investigating a civil case. By its ruling of 12 January 2010, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-1/2010).

6. The Marijampolė District Local Court, a petitioner, was investigating a civil case. By its ruling of 15 January 2010, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, other circumstances significant to the case, that the obligation to eliminate the consequences of unauthorised construction—within the set time limit to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution (petition No. 1B-2/2010).

7. The Druskininkai City Local Court, a petitioner, was investigating a civil case. By its ruling of 20 January 2010, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 19 November 2009) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-4/2009).

8. The Trakai District Local Court, a petitioner, was investigating a civil case. By its ruling of 5 March 2010, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-11/2009).

9. The Marijampolė District Local Court, a petitioner, was investigating a civil case. By its ruling of 25 February 2010, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, other circumstances significant to the case, that the obligation to eliminate the consequences of unauthorised construction—within the set time limit to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution (petition No. 1B-19/2009).

10. The Panevėžys City Local Court, a petitioner, was investigating a civil case. By its ruling of 13 May 2010, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-30/2009).

11. The Marijampolė District Local Court, a petitioner, was investigating a civil case. By its ruling of 14 June 2010, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, other circumstances significant to the case, that the obligation to eliminate the consequences of unauthorised construction—within the set time limit to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-52/2009).

12. The Druskininkai City Local Court, a petitioner, was investigating a civil case. By its ruling of 2 July 2010, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 19 November 2009) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish the structure should not be applied, since, due to very important circumstances it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-62/2009).

13. The Kaunas District Local Court, a petitioner, was investigating a civil case. By its ruling of 29 June 2010, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the circumstances significant to the case, as well as while following the criteria of justice and reasonableness, that the consequences of unauthorised construction could be eliminated not only by sole means of obligating the builder to demolish the structure, since, due to some essential circumstances that have transpired in the case, it would be unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-63/2009).

14. The Klaipėda City Local Court, a petitioner, was investigating a civil case. By its ruling of 8 July 2010, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-67/2009).

15. The Švenčionys District Local Court, a petitioner, was investigating a civil case. By its ruling of 3 August 2010, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-75/2010).

16. The Švenčionys District Local Court, a petitioner, was investigating a civil case. By its ruling of 8 June 2010, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law (petition No. 1B-76/2009).

II

The petitions of the petitioners—the petition (No. 1B-2/2009) of the Anykščiai District Local Court, the petition (No. 1B-26/2009) of the Šiauliai City Local Court, the petition (No. 1B-48/2009) of the 2nd Vilnius City Local Court, the petition (No. 1B-67/2009) of the Jurbarkas District Local Court, the petition (No. 1B-1/2010) of the Kaišiadorys District Local Court, the petitions (Nos. 1B-2/2010, 1B-19/2010, 1B-52/2010) of the Marijampolė District Local Court, the petitions (Nos. 1B-4/2010, 1B-62/2010) of the Druskininkai City Local Court, the petition (No. 1B-11/2010) of the Trakai District Local Court, the petition (No. 1B-30/2010) of the Panevėžys City Local Court, the petition (No. 1B-67/2010) of the Klaipėda City Local Court, the petition (No. 1B-63/2010) of the Kaunas District Local Court, the petitions (Nos. 1B-75/2010, 1B-76/2010) of the Švenčionys District Local Court—are substantiated by essentially analogous arguments.

In the opinion of the petitioners, while applying the disputed legal regulation, in case of unauthorised construction subsequent to a claim of a party concerned, a court must obligate the person to demolish the structure within the set time limit, or, if the solutions of the project and requirements of other legal acts were violated, to reconstruct the structure (to demolish part thereof, to rebuild it, etc.). While applying the disputed legal regulation, the court can adopt only a formal decision, it can demonstrate only a simulacrum of administration of justice. In the opinion of the petitioners, such legal regulation, does not grant the right to a court to take account of the character and extent of the violation of law, of circumstances mitigating the liability as well as of other significant circumstances, and to decide, while following the criteria of justice and reasonableness, that the obligation to demolish or reconstruct the structure, which is provided for in Article 4.103 of the CC and Article 28 of the Law on Construction, should not be applied, since it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust.

The Anykščiai District Local Court, the Šiauliai City Local Court, the 2nd Vilnius City Local Court, the Jurbarkas District Local Court, the Trakai District Local Court, the Panevėžys City Local Court, the Marijampolė District Local Court, the Kaunas District Local Court, the Klaipėda City Local Court and the Švenčionys District Local Court, the petitioners, also noted that, on the grounds of the doctrine of the Constitutional Court, inter alia the Constitutional Court ruling of 21 January 2008, administration of justice in courts is not a mere formal process and must be understood not as an adoption of a decision in a court, but as adoption of a fair decision. The sanctions for violations of law, as established by the state, must be proportionate to the violation of law, they must not restrict the person more than evidently necessary, the established penalties must be differentiated in a manner so that in the application thereof it would be possible to take account of the character of violation of law, the circumstances mitigating the liability, as well as of other circumstances. In the opinion of the petitioners, the disputed legal regulation prevents courts from administering justice and is in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations from K. Ramelis and A. Stancikienė were received.

1. In the written explanations of K. Ramelis it is maintained that the disputed legal regulation is in conflict with the Constitution. The position of K. Ramelis is substantiated by these arguments.

The provision that justice is administered solely by courts means that the constitutional value is not the adoption of a decision in court, but rather the adoption of a just, but not a formal, court decision. The court, while being the sole institution which has the right to implement justice in the name of the state and society, must have a certain freedom of manoeuvre and the right of discretion, so that it might be able to implement this function. If the courts are deprived of the possibility to adopt a decision while following the criteria of justice and reasonableness, and while taking account of some really important circumstances, the decision of the court would only be formal and irrelevant.

A state under the rule of law recognises the superiority of law, but not of a law, and due to this it is necessary to grant priority to the real protection of human rights, but not to formalism. Therefore, in the opinion of K. Ramelis, the disputed legal regulation is in conflict with the Constitution.

2. In her written explanations, the Member of the Seimas A. Stancikienė maintains that the disputed legal regulation is not in conflict with the Constitution and grounds her position upon the following arguments.

2.1. It is universally known that right cannot grow out of injustice, therefore, the previous legal regulation in the course of application of which it used to be possible to legalise unauthorised construction after formalising corresponding documents, had to be amended. By the disputed legal regulation one sought to prevent unauthorised construction, since a big number of builders widely used the then existing possibility to legalise the structure later. The travaux préparatoires of the Republic of Lithuania Law on Amending the Law on Construction show that by means of the amendments one was seeking to diminish the amount of corruption related with legalisation of the structures, which were constructed without an authorisation.

2.2. When the requirements for the construction process, which are established in legal acts, are carried out, the quality of the structure is guaranteed and legitimate interests of persons are protected. When unauthorised construction is carried out, when the aforesaid requirements are not followed, both the public interest and the rights and interests of private persons are violated.

2.3. The legal regulation existing at present does not unambiguously demand that a structure constructed in an unauthorised manner be demolished, but rather an opportunity is given to reconstruct it under established requirements. Article 28 of the Law on Construction and Article 4.103 of the CC point out the same sanctions for the violations law, which are assessed differently, i.e. for unauthorised construction and unlawful construction. It would be impossible to establish a different obligation than demolishing a structure, which was constructed in an unauthorised manner, whose construction is not allowed under the documents of territorial planning, since construction of such structures is impermissible at all.

2.4. The Constitution and the law protect the ownership rights only if they have been acquired in a lawful manner, therefore, it is doubtful whether the law might entrench a possibility to legalise a structure, which was constructed in an unauthorised manner, even in the case where the construction of the structure constructed in an unauthorised manner is allowed. Therefore, it is doubtful whether the list of the sanctions entrenched in Article 4.103 of the CC and Article 28 of the Law on Construction might be enlarged.

IV

1. In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from Remigijus Šimašius, Minister of Justice of the Republic of Lithuania, and Laura Nalivaikienė, Head of the State Territorial Planning and Construction Inspectorate of the Republic of Lithuania under the Ministry of Environment.

2. In the course of the preparation of the case for the Constitutional Court hearing, explanations were presented by the specialists—Ivona Šuškevič, Acting Deputy Head of the State Territorial Planning and Construction Inspectorate under the Ministry of Environment, and Arūnas Minius, Head of the Strategy and Analysis Unit of the said inspectorate.

V

The representative of the Seimas, the party concerned, who was K. Ramelis, assented to the arguments set forth in his written explanations and answered to questions of the justices.

The Constitutional Court

holds that:

I

1. The petitioners—the Anykščiai District Local Court, the Šiauliai City Local Court, the 2nd Vilnius City Local Court, the Jurbarkas District Local Court, the Trakai District Local Court, the Panevėžys City Local Court, the Klaipėda City Local Court and the Švenčionys District Local Court (petitions Nos. 1B-2/2009, 1B-26/2009, 1B-48/2009, 1B-67/2009, 1B-11/2010, 1B-30/2010, 1B-67/2010, 1B-75/2010 and 1B-76/2010)—request that the Constitutional Court investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

The petitioners—the Kaišiadorys Local District Court and the Druskininkai City Local Court (petitions Nos. 1B-1/2010, 1B-4/2010 and 1B-62/2010)—request that the Constitutional Court investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 19 November 2009) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

The petitioner—the Marijampolė District Local Court (petitions Nos. 1B-2/2010 and 1B-19/2010)—requests that the Constitutional Court investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, other circumstances significant to the case, that the obligation to eliminate the consequences of unauthorised construction—within the set time limit to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

The petitioner—the Marijampolė District Local Court (petition No. 1B-52/2010)—requests that the Constitutional Court investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, other circumstances significant to the case, that the obligation to eliminate the consequences of unauthorised construction—within the set time limit to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution.

The petitioner—the Kaunas District Local Court (petition No. 1B-63/2010)—requests that the Constitutional Court investigate whether Article 4.103 (wording of 17 October 2006) of the CC and Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that they do not provide for a possibility for a court to decide, while taking account of the circumstances significant to the case, as well as while following the criteria of justice and reasonableness, that the consequences of unauthorised construction could be eliminated not only by sole means of obligating the builder to demolish the structure, since, due to some essential circumstances that have transpired in the case, it would be unjust, are not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

2. Although in their petitions the petitioners request that the Constitutional Court investigate whether Article 4.103 (wording of 17 October 2006) of the CC, to the extent that it does not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, is not in conflict with the Constitution, it is clear from the arguments of the petitioners that they doubt whether Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC, to the extent that this paragraph does not provide that a court, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, may adopt a decision, which is different from an obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.), is not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

3. Although in their petitions the petitioners request that the Constitutional Court investigate whether Article 28 (wordings of 17 October 2006 and 19 November 2009) of the Law on Construction, to the extent that it does not provide for a possibility for a court to decide, while taking account of the character and extent of violation of law, the circumstances mitigating the liability and other significant circumstances, as well as while following the criteria of reasonableness and justice, that the obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.) should not be applied, since, due to very important circumstances, it is clearly disproportionate (inadequate) to the committed violation of law and, due to this, unjust, was not (is not) in conflict with the Constitution, it is clear from the arguments of the petitioners that they doubt whether Paragraph 3 of Article 28 (wordings of 17 October 2006 and 19 November 2009) of the Law on Construction, to the extent that this paragraph did not (does not) provide that a court, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, might (may) adopt a decision, which is different from an obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.), was not (is not) in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

4. Thus, taking account of the arguments set forth in the petitions of the petitioners, in the constitutional justice case at issue, the Constitutional Court will investigate whether:

Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC, to the extent that this paragraph does not provide that a court, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, may adopt a decision, which is different from an obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.), is not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law;

Paragraph 3 of Article 28 (wordings of 17 October 2006 and 19 November 2009) of the Law on Construction, to the extent that this paragraph did not (does not) provide that a court, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, might (may) adopt a decision, which is different from an obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.), was not (is not) in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

II

1. On 18 July 2000, the Seimas adopted the Republic of Lithuania Law on the Approval, Entry into Force and Implementation of the Civil Code (which came into force on 6 September 2000), by Article 1 whereof the Civil Code of the Republic of Lithuania was approved. Under Article 2 of the same law, the Civil Code (wording of 18 July 2000) came into force, with some exceptions, on 1 July 2001. The Civil Code (wording of 18 July 2000) has been amended and/or supplemented more than once.

2. Article 4.103 (wording of 18 July 2000) titled “Legal civil consequences of violation of normative technical construction specifications” prescribed:

1. Natural or legal persons that have built, are building or are reconstructing a structure without a due permit, a duly agreed and approved project or with relevant digressions from the structure project, or with gross violations of normative technical documents of the construction, or in possession of a permit issued illegally, shall have no right to use or dispose of such a structure (sell, give as gift, lease, etc.).

2. Persons whose rights and interests are violated in cases described by Paragraph 1 hereof shall have the right to appeal to the court regarding violations of the rules on construction or the issue of construction permits.

3. The court by its decision may:

1) obligate the builder to duly approve the project during an established period of time, make due changes therein, receive due permit or eliminate other violations related to due formalities of the structure’s construction specifications;

2) obligate the builder to properly remodel the structure within an established period of time (demolish a part of the structure, reconstruct it, etc.);

3) obligate the builder to demolish the structure within a given time frame.

4. If the builder complies with the requirements as stipulated by Items 1 and 2 of Paragraph 3 of this Article, the institution registering immovable things must register the construction in due form.

5. If the builder fails to comply with the requirements as stipulated by Items 1 and 2 of Paragraph 3 of this Article, the structure (its part) may be demolished by a court decision at the expense of the builder.

6. If the builder fails to comply with the requirement as stipulated by Items 3 of Paragraph 3 of this Article, the structure (its part) shall be demolished by a court decision at the expense of the builder.

7. Construction materials remaining after the demolition of such structures are ownership of the builder.

8. Damage incurred due to violations of the normative construction technical specifications shall be indemnified under procedure established by Section Three of Chapter XXII of Book Six of this Code.”

Thus, Article 4.103 (wording of 18 July 2000) of the CC entrenched the civil legal consequences of construction that violated certain requirements of legal acts (construction was performed without a due permit, a duly agreed and approved project, or in possession of a permit issued illegally, or with relevant digressions from the structure project, or with gross violations of normative technical documents of the construction specifications).

Paragraph 3 of Article 4.103 (wording of 18 July 2000) of the CC entrenched the right of a court, considering a case on civil legal consequences of construction that violated requirements of legal acts, not only to obligate the builder to properly remodel the structure within an established period of time (demolish a part of the structure, reconstruct it, etc.) or to demolish it, but also to duly approve the project during an established period of time, make due changes therein, receive due permit or eliminate other violations related to due formalities of the structure’s construction specifications.

3. The relations related to the civil legal consequences of construction that violated requirements of legal acts are regulated not only by the CC, but also by other legal acts, inter alia by the Law on Construction.

4. On 8 November 2001, the Seimas adopted the Law on the Amendment of the Law on Construction (which came into force on 1 July 2002), by Article 1 whereof the Law on Construction (wording of 19 March 1996 with subsequent amendments and supplements) was amended and set forth in a new wording. The said law has been amended and/or supplemented more than once.

4.1. Paragraph 71 of Article 2 “Main Definitions Used in this Law” (wording of 8 November 2001) of the Law on Construction prescribed: “‘Unauthorised construction (demolition) of a structure’ means construction (demolition) of a structure without a construction permit obtained in the manner prescribed by this Law; construction of a simple structure without a document specified in normative technical construction documents when a construction permit is not mandatory.”

4.2. Article 28 (wording of 8 November 2001) “Elimination of Consequences of Unauthorised Construction” of the Law on Construction prescribed:

1. Upon establishing that construction of a structure is carried out in violation of this Law and other legal acts, officers of the county governor’s administration, the State Territorial Planning and Construction Inspectorate under the institution authorised by the Government who carry out the State supervision of construction within the scope of competence specified in Paragraphs 3, 4, 6, and 7 of Article 27 of this Law, shall, invoking the Civil Code and the Code of Administrative Violations of Law:

1) draw up an act on unauthorised construction, demand that the builder and contractor (when construction operations are carried out under the contract) immediately stop construction operations, and hand the said report in to them against their signature, or by registered mail;

2) draw up a report on administrative violations of law in a manner prescribed by the Code of Administrative Violations of Law, and consider an administrative case regarding the imposition of an administrative penalty, or send this report to the court;

3) consider causes and circumstances of unauthorised construction, receive findings of institutions for the state supervision of purpose and safety requirements of a structure, draw up and submit, according to the subordination, proposals to the county governor concerning elimination of construction consequences or, within the scope of their competence, make appropriate decisions.

2. The county governor’s administration or the State Territorial Planning and Construction Inspectorate under the institution authorised by the Government shall, within the scope of competence specified in Paragraphs 3, 4, 5, 6, and 7 of Article 27 of this Law, consider an act on unauthorised construction and proposals of the officers regarding elimination of the consequences thereof and, by setting time limits of implementation, make one of the following decisions:

1) to stop construction of a structure and demand that the builder (client) demolish the structure, if in the territory where construction of a new structure is carried out or a structure is reconstructed, construction or reconstruction of any new structure or a structure of a certain purpose is prohibited; to apply to the court if such demand is not carried out within the set time limit;

2) when construction of a structure may be carried out, to allow the builder (client) to prepare a project of the structure and obtain a construction permit;

3) to obligate the builder (client) who has carried out the requirements of Item 2 of Paragraph 2 of this Article, to redo unauthorised construction operations in accordance with the project of the structure;

4) to demand that the builder (client) demolish the structure with his own funds and clean the construction site;

5) to apply to the court without making decisions specified in Items 1, 2 and 3 of this Paragraph.

3. If the builder (client) does not carry out the requirements specified in Items 2, 3 and 4 of Paragraph 2 of this Article within the set time limit, the county governor’s administration or the State Territorial Planning and Construction Inspectorate under the institution authorised by the Government shall, within the scope of competence specified in Paragraphs 3, 4, 6, and 7 of Article 27 of this Law, submit to the court a request (application) regarding the carrying-out of obligations.

4. The procedure and form of an act on unauthorised construction shall be set by an institution authorised by the Government.”

4.3. Thus, Article 28 (wording of 8 November 2001) of the Law on Construction entrenched the legal consequences, inter alia the civil legal consequences, of unauthorised construction of a structure (construction, which was carried out without a construction permit received under established procedure, or without other document specified in the normative technical documents of construction, when a permit for construction is not mandatory).

Paragraph 2 Article 28 (wording of 8 November 2001) of the Law on Construction established the right of the institutions that carry out state supervision of construction to adopt a decision, upon consideration of an act on unauthorised construction, not only to obligate the builder to demolish the structure or to once again perform the construction operations of the unauthorised construction rectifying the structure so that it is built according to its project, but also to allow the builder (client) to prepare a project of the structure and obtain a construction permit, when construction of a structure may be carried out; the institutions that carry out state supervision of construction were allowed to apply to the court in case none of the aforesaid decisions had been adopted (Item 5 of Paragraph 2) or in case the builder had not carried out the decisions adopted by the institutions (Paragraph 3).

5. On 17 October 2006, the Seimas adopted the Republic of Lithuania Law on Amending Article 4.103 of the Civil Code, which came into force on 31 October 2006, whereby the title of Article 4.103 of the CC was amended.

Article 4.103 (wording of 17 October 2006) titled “Legal civil consequences of illegal construction”, which is disputed by the petitioners, was set forth as follows:

1. If a structure (its part) has been built or is being built without authorisation or with authorisation, but in violation of the solutions of the project of the structure, or in violation of the requirements of legal acts, then the builder shall have no right to use or dispose of such a structure (sell, give as gift, lease, etc.). Laws shall define which structure (its part) has been built or is being built without authorisation.

2. Persons whose rights and interests are violated, as well as other persons authorised by laws shall have the right to appeal to the court regarding the violations referred to in Paragraph 1 of this Article.

3. The court by its decision may:

1) obligate the builder to properly remodel the structure within an established period of time (demolish a part of the structure, reconstruct it, etc.);

2) obligate the builder to demolish the structure within a given time frame.

4. If the builder fails to comply with the requirement as stipulated by Item 1 of Paragraph 3 of this Article, the structure (its part) shall be remodelled by a court decision at the expense of the builder.

5. If the builder fails to comply with the requirement as stipulated by Item 2 of Paragraph 3 of this Article, the structure shall be demolished by a court decision at the expense of the builder.

6. Construction materials remaining after the demolition of such structures are ownership of the builder.

7. Damage incurred due to violations of the normative construction technical specifications shall be indemnified under procedure established by Section Three of Chapter XXII of Book Six of this Code.”

If one compares the legal regulation established in Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC, which is disputed by the petitioners, with the legal regulation established in Paragraph 3 of Article 4.103 (wording of 18 July 2000) of the CC, it becomes clear that the said legal regulation became changed so that Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC provides that a court, which considers a case regarding the civil legal consequences of unauthorised construction or of construction, which is not unauthorised, but which violates the solutions of the project of the structure or requirements of legal acts, may adopt one of the two decisions: to obligate the builder to properly remodel the structure within an established period of time (demolish a part of the structure, reconstruct it, etc.) or to demolish the structure; Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC does not provide for the right of a court to adopt the decision to obligate the builder to duly approve the project during an established period of time, make due changes therein, receive due permit or eliminate other violations related to due formalities of the structure’s construction specifications.

6. On 17 October 2006, the Seimas also adopted the Republic of Lithuania Law on Amending Articles 1, 2, 3, 20, 23, 24, 25, 27, 28, 29, 31, 33, 34 and 35 of the Law on Construction, which came into force on 31 October 2006.

6.1. Paragraph 71 (wording of 17 October 2006) of Article 2 of the Law on Construction prescribed: “‘Unauthorised construction of a structure’ means construction of a structure (its part) without a construction permit obtained in the manner prescribed by this Law or performance of construction operations when the validity of a construction permit has expired (in the case of a simple structure—without a mandatory document specified in normative technical construction documents or when the validity of such a document has expired), as well as when the court has recognised a construction permit as illegal; construction of a structure (its part) with a valid construction permit (in the case of a simple structure—with a mandatory document specified in normative technical construction documents), but in violation of the essential solutions of the project of a structure, i.e. changing the determined place of the structure in the construction plot, the purpose of the plot, the structure or its part, the permissible density of development of the plot, the permissible height of the structure, the requirements laid down in the regulations on the protection of a protected area or the provisional regulations on the protection of a structure of cultural heritage, as well as the requirements of protection of heritage, are not complied with.”

If one compares the legal regulation established in Paragraph 71 (wording of 17 October 2006) of Article 2 of the Law on Construction with the legal regulation established in Paragraph 71 (wording of 8 November 2001) of Article 2 of the Law on Construction, it becomes clear that the notion on an unauthorised construction was broadened: under Paragraph 71 (wording of 17 October 2006) of Article 2 of the Law on Construction, not only construction of a structure without a construction permit obtained in the manner prescribed by the law or without a document specified in normative technical construction documents when a construction permit is not mandatory, but also performance of construction operations, when the validity of a construction permit has expired or has been recognised as illegal, as well as the situations when construction is performed with a valid construction permit, but in violation of the essential solutions of the project of a structure, are regarded as unauthorised construction.

Under the legal regulation established in Paragraph 71 (wording of 17 October 2006) of Article 2 of the Law on Construction, the solutions of the project of a structure whereby one determines the place of the structure in the construction plot, the purpose of the plot, of the structure or of its part, the permissible density of development of the plot, the permissible height of the structure, the requirements laid down in the regulations on the protection of a protected area, the provisional regulations on the protection of a structure of cultural heritage, as well as the requirements of protection of heritage, are regarded as the essential solutions of the project of a structure.

Consequently, the essential solutions of the project of a structure, by means of which one determines the place of the structure in the construction plot, the purpose of the plot, of the structure or of its part, the permissible density of development of the plot, the permissible height of the structure, may not be changed so that they would not meet the requirements laid down in the regulations on the protection of a protected area, the provisional regulations on the protection of a structure of cultural heritage, as well as the requirements of protection of heritage.

6.2. Article 28 (wording of 17 October 2006) “Elimination of Consequences of Unauthorised Construction” (Paragraph 3 whereof is disputed by the petitioners) of the Law on Construction prescribed:

1. Upon establishing that construction of a structure is carried out in violation of this Law and other legal acts, officers of the county governor’s administration, the State Territorial Planning and Construction Inspectorate under the institution authorised by the Government who carry out the State supervision of construction within the scope of competence specified in Paragraphs 3, 4, 6, and 7 of Article 27 of this Law, shall, invoking the Civil Code and the Code of Administrative Violations of Law:

1) draw up immediately an act on unauthorised construction in two copies, demand that the builder and contractor (when construction operations are carried out under the contract) immediately stop construction operations, and hand the said report in to them against their signature, or by registered mail;

2) draw up a report on administrative violations of law in a manner prescribed by the Code of Administrative Violations of Law, and consider a case on administrative violation of law regarding the imposition of an administrative penalty, or send this report to the court;

3) not later than within three working days from the drawing-up of an act on unauthorised construction, submit it, according to pertinence, to the county governor or the head of the State Territorial Planning and Construction Inspectorate under an institution authorised by Government.

2. The county governor’s administration or the State Territorial Planning and Construction Inspectorate under the institution authorised by the Government shall, within the scope of competence specified in Paragraphs 3, 4, 5, 6, and 7 of Article 27 of this Law, consider an act on unauthorised construction and, not later than within one month from the drawing-up of an act on unauthorised construction, make one of the following decisions:

1) to demand that the builder (client) eliminate within the set time limit and with his own funds the results of unauthorised construction—demolish or reconstruct according to the requirements the structure or its part which was built without authorisation, and clean the construction site;

2) to apply to the court if a decision specified in Item 1 of this Paragraph is not taken.

3. If the builder (client) does not carry out the requirement specified in Item 1 of Paragraph 2 of this Article within the set time limit, the county governor’s administration or the State Territorial Planning and Construction Inspectorate under the institution authorised by the Government shall, within the scope of competence specified in Paragraphs 3, 4, 6, and 7 of Article 27 of this Law, submit to the court an request (application) regarding the carrying-out of obligations.

4. The procedure and form of an act on unauthorised construction shall be set by an institution authorised by the Government.”

If the legal regulation established in Paragraph 2 of Article 28 (wording of 17 October 2006) of the Law on Construction is compared with the legal regulation established in Paragraph 2 of Article 28 (wording of 8 November 2001) of the Law on Construction, it becomes clear that the legal regulation became changed so that Paragraph 2 of Article 28 (wording of 17 October 2006) of the Law on Construction prescribed that the institutions that carry out state supervision of construction, upon consideration of the act of an unauthorised construction, could adopt one of the two decisions: to demand that the builder demolish or reconstruct according to the requirements the structure (its part) that was built without authorisation, and clean the construction site; if none of the said decisions were taken, the institutions were allowed to apply to the court. Paragraph 2 of Article 28 (wording of 17 October 2006) of the Law on Construction, differently from Paragraph 2 of Article 28 (wording of 8 November 2001) of the Law on Construction, did not establish the right of the institutions that carry out state supervision of construction to adopt a decision to allow the builder (client) to prepare a project of the structure and obtain a construction permit, when construction of the structure might be carried out.

If one compares the legal regulation (which is being disputed by the petitioner) established in Paragraph 3 of Article 28 (wording of 17 October 2006) of the Law on Construction with the legal regulation established in Paragraph 3 (wording of 8 November 2001) of Article 28 of the Law on Construction, it is obvious that the legal regulation from the aspect disputed by the petitioner did not undergo any essential changes.

6.3. While construing the legal regulation (disputed by the petitioners) entrenched in Paragraph 3 of Article 28 (wording of 17 October 2006) of the Law on Construction from the aspect of the constitutional justice case at issue, it needs to be noted that, under Paragraph 2 of Article 28 (wording of 17 October 2006) of the Law on Construction, the institutions that carry out state supervision of construction, upon consideration of acts of an unauthorised construction, could adopt one of the two decisions: to obligate the builder to demolish or reconstruct the structure which is being built (or which has been built), or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.), or to apply to the court if none of the said decisions were taken. Neither the decision-making competent institutions, nor the court, if it has been applied to, were granted a possibility to adopt a different decision than an obligation for the builder to demolish the structure which is being built (or which has been built), or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.). If a builder, who had violated the requirements of legal acts, did not carry out the demands specified by the competent institutions within the established time period, the said institutions, pursuant to Paragraph 3 of Article 28 of the Law on Construction, were to apply to the court regarding the execution of the obligations.

A court, while deciding on the execution of the obligations imposed by the competent institutions and while seeking to secure the control of the reasonableness and lawfulness of these obligations, having stated the existence of the fact of the construction that violated the requirements of legal acts, could not adopt any other decision different from the possible decisions of the competent institutions, which were entrenched in Paragraph 2 (wording of 17 October 2006) of Article 28 of the Law on Construction, i.e. it could only confirm a decision to demolish the structure built in an unauthorised manner or to properly remodel it (to demolish part of the structure, to reconstruct it etc.) and to obligate to execute such a decision.

7. The provisions of Article 4.103 (wording of 17 October 2006) of the CC and those of the Law on Construction (wording of 17 October 2006) regulating the relations related to the civil legal consequences of construction violating the requirements of legal acts must be construed in a systemic manner.

When the legal regulation established in Paragraph 1 of Article 4.103 (wording of 17 October 2006) titled “Legal civil consequences of illegal construction” is construed together with the legal regulation established in Paragraph 71 (wording of 17 October 2006) of Article 2 of the Law on Construction, it needs to be noted that Article 4.103 of the CC makes distinction between unauthorised construction and construction, which is performed in violation of the solutions of the project of the structure, or in violation of the requirements of legal acts, whereas, under Paragraph 71 (wording of 17 October 2006) of Article 2 of the Law on Construction, not only construction performed without valid documents permitting the construction (without a construction permit, when the construction permit is recognised as illegal or when it became no longer valid), but also the construction, which is performed with a valid construction permit, but in violation of the essential solutions of the project of a structure, i.e. changing the determined place of the structure in the construction plot, the purpose of the plot, of the structure or of its part, the permissible density of development of the plot, the permissible height of the structure, the requirements laid down in the regulations on the protection of a protected area or the provisional regulations on the protection of a structure of cultural heritage, as well as the requirements of protection of heritage, are not complied with.

In the context of the constitutional justice case at issue it needs to be noted that the notion “unauthorised construction” employed in the Law on Construction (wording of 17 October 2006) is not identical with the notion “illegal construction” employed in the CC. The notion “illegal construction” encompasses the cases of unauthorised construction defined in Paragraph 71 of Article 2 of the Law on Construction as well as all other cases of illegal construction which are not within the definition of unauthorised construction. Construction performed in violation of the solutions of the project of the structure, with the exception of the essential solutions of the project of a structure (when the determined place of the structure in the construction plot, the purpose of the plot, of the structure or of its part, the permissible density of development of the plot, the permissible height of the structure are changed), i.e. the construction performed in violation of non-essential solutions of the project of the structure, as well as in violation of requirements of legal acts, with the exception of the requirements laid down in the regulations on the protection of a protected area or the provisional regulations on the protection of a structure of cultural heritage, as well as the requirements of protection of heritage, is to be regarded as illegal, but not unauthorised one.

8. In the context of the constitutional justice case at issue, if the legal regulation established in Article 4.103 (wording of 17 October 2006) of the CC is construed together with the legal regulation established in Paragraph 71 (wording of 17 October 2006) of Article 2 of the Law on Construction, it needs to be held that the legal regulation established in Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC encompasses various situations.

8.1. The legal regulation established in Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC encompasses such situations, where:

construction is performed without the proper documents permitting the construction, i.e. without a construction permit obtained in the manner prescribed by the Law on Construction or when the validity of a construction permit has expired (if the structure is simple—without a mandatory document specified in normative technical construction documents or when the validity of such a document has expired), also when the court has recognised a construction permit as illegal, and these mandatory documents permitting the construction cannot be issued, because such construction is not allowed at all due to the fact that it violates inter alia the requirements laid down in the regulations on the protection of a protected area or the provisional regulations on the protection of a structure of cultural heritage, as well as the requirements of protection of heritage;

construction is performed with valid mandatory documents permitting the construction (a construction permit or other document specified in normative technical documents of the construction, when a construction permit is not mandatory), however, in violation of such essential solutions of the project of the structure, which cannot be changed due to the fact that, in case there were changed, inter alia the requirements laid down in the regulations on the protection of a protected area or the provisional regulations on the protection of a structure of cultural heritage, as well as the requirements of protection of heritage, would be violated.

In other words, the legal regulation established in Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC includes inter alia the situations, when a structure which is being built (or has been built) or other construction operations which have been performed are not allowed in the place in question at all, whereas the established violations may objectively be removed only by demolishing or reconstructing the structure.

8.2. The legal regulation established in Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC encompasses also such situations, where:

construction is performed without the proper documents permitting the construction, i.e. without a construction permit obtained in the manner prescribed by the Law on Construction or when the validity of a construction permit has expired (if the structure is simple—without a mandatory document specified in normative technical construction documents or when the validity of such a document has expired), however, these mandatory documents permitting the construction can be issued, because such construction is generally allowed due to the fact that it does not violate inter alia the requirements laid down in the regulations on the protection of a protected area or the provisional regulations on the protection of a structure of cultural heritage, as well as the requirements of protection of heritage, whereas the established violations can objectively be rectified without demolishing or reconstructing the structure;

construction is performed with valid mandatory documents permitting the construction (a construction permit or other document specified in normative technical documents of the construction, when a construction permit is not mandatory), however, in violation of such solutions of the project of the structure, which are not essential, and also in violation of such essential solutions of the project of the structure, which can be changed due to the fact that, in case there were changed, inter alia the requirements laid down in the regulations on the protection of a protected area or the provisional regulations on the protection of a structure of cultural heritage, as well as the requirements of protection of heritage, would not be violated, whereas the established violations can objectively be rectified without demolishing or reconstructing the structure.

In other words, the legal regulation established in Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC includes inter alia also such situations, when a structure which is being built (or has been built) or other construction operations which have been performed are essentially allowed in the place in question, whereas the established violations can objectively be rectified without demolishing or reconstructing the structure.

9. While summing up the above legal regulation, it needs to be held that disputed Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC means that a court, while deciding on the consequences of the construction that violates the requirements of legal acts, must take a decision to obligate the builder to demolish the structure which is being built (which has been built) or to properly remodel it (to demolish part of the structure, to reconstruct it etc.) within the established time period and cannot take any other decision both in situations when the structure which is being built (which has been built) or construction operations which have been performed are not allowed at all in the place in question, whereas the established violations may objectively be removed only by demolishing or reconstructing the structure, and in situations when the structure which is being built (which has been built) or construction operations which have been performed are essentially allowed in the place in question, whereas the established violations can objectively be rectified without demolishing or reconstructing the structure, i.e. the legal regulation established in Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC is applied to essentially different cases of violation of legal acts regulating construction.

The disputed provision of Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC was formulated in an imperative manner: while deciding on construction, which violated the requirements of legal acts, in all situations a court had to take one of the two decisions specified in this provision and did not have a possibility to take any other decision regarding the civil legal consequences of illegal construction.

The fact that also courts treat the aforesaid provision as an imperative one is testified by the petitions of the courts (petitioners) of the Republic of Lithuania that initiated the constitutional justice case at issue.

10. On 17 July 2009, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing Articles 2, 6, 20, 23, 28, 29, 31, 37 of the Law on Construction and Its Supplementing with Article 231, which did not come in force due to the veto expressed by the President of the Republic on 30 July 2009.

On 19 November 2009, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing Articles 12, 14, 15, 16, 22, 23, 231, 25, 27, 28, 32, 33, 34, 35, 42 of the Law on Construction and Its Supplementing with Article 45, which came into force on 1 January 2010.

Article 28 (wording of 19 November 2009) “Elimination of Consequences of Unauthorised Construction” of the Law on Construction prescribed:

1. Upon establishing that a structure has been built or is being built in an unauthorised manner, officers of the State Territorial Planning and Construction Inspectorate under the Ministry of Environment, who carry out the State supervision of construction within the scope of competence ascribed to them by this Law, shall:

1) draw up immediately an act on unauthorised construction in two copies, demand that the builder and contractor (when construction operations are carried out under the contract) immediately stop construction operations, and hand the said report in to them against their signature, or by registered mail;

2) draw up a report on administrative violations of law in a manner prescribed by the Code of Administrative Violations of Law, and consider a case on administrative violation of law regarding the imposition of an administrative penalty, or send this report to the court;

3) not later than within three working days from the drawing-up of an act on unauthorised construction, submit it to the head of the State Territorial Planning and Construction Inspectorate under the Ministry of Environment, or to the head of an administration sub-unit authorised by the latter.

2. The State Territorial Planning and Construction Inspectorate under the Ministry of Environment shall, within the scope of competence ascribed to it by this Law, consider an act on unauthorised construction and, not later than within one month from the drawing-up of an act on unauthorised construction, make one of the following decisions:

1) to demand that the builder (client) eliminate within the set time limit and with his own funds the results of unauthorised construction of the structure—demolish or reconstruct according to the requirements the structure which is being built or was built without authorisation, or its part which is being built or was built without authorisation, and clean the construction site;

2) to apply to the court if a decision specified in Item 1 of this Paragraph is not taken.

3. If the builder (client) does not carry out the requirement specified in Item 1 of Paragraph 2 of this Article within the set time limit, the State Territorial Planning and Construction Inspectorate under the Ministry of Environment shall apply to the court regarding the carrying-out the demand.

4. The procedure and form of an act on unauthorised construction shall be set by the Ministry of Environment.”

If the legal regulation established in Paragraph 2 of Article 28 (wording of 19 November 2009) of the Law on Construction is compared with the legal regulation established in Paragraph 2 of Article 28 (wording of 17 October 2006) of the Law on Construction, it becomes clear that, essentially, the legal regulation in the aspect considered at the constitutional justice case at issue has not changed, i.e. it retained the provision that the institutions carrying out state supervision of construction, upon consideration of the act of an unauthorised construction, could adopt one of the two decisions: to demand that the builder demolish or reconstruct according to the requirements the structure (its part) that was built without authorisation, and clean the construction site; if none of the said decisions were taken, the institutions were allowed to apply to the court.

If one compares the legal regulation established in Paragraph 3 of Article 28 (wording of 19 November 2009) of the Law on Construction with the legal regulation established in Paragraph 3 of Article 28 (wording of 17 October 2006) of the Law on Construction, it is obvious that the legal regulation from the aspect disputed by the petitioner did not undergo any essential changes.

11. On 2 July 2010, the Seimas adopted the Republic of Lithuania Law on Amending Article 4.103 of the Civil Code, which came into force on 1 January 2011, whereby inter alia the title of Article 4.103 of the CC was amended.

Article 4.103 (wording of 2 July 2010) titled “Legal civil consequences of construction which violates requirements of legal acts” of the CC was set forth as follows:

1. If a structure (its part) has been built or is being built without authorisation or with authorisation, but in violation of the solutions of the project of the structure, or in violation of the requirements of legal acts, then it shall be prohibited to use such a structure (its part) or dispose of it (sell, give as gift, lease, etc.). Laws shall define which structure (its part) has been built or is being built without authorisation.

2. Persons whose rights and interests are violated, as well as other persons authorised by laws shall have the right to appeal to the court regarding the violations referred to in Paragraph 1 of this Article.

3. The matter relating to elimination of the consequences of construction which violates the requirements of legal acts shall be decided by the court under procedure prescribed by laws.”

If one compares the legal regulation established in Paragraph 3 of Article 4.103 (wording of 2 July 2010) of the CC, which is disputed by the petitioners, with the legal regulation established in Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC, it becomes clear that the said legal regulation became changed so that Article 4.103 (wording of 2 July 2010) of the CC no longer expressis verbis regulates what decision must be taken by a court, which considers a case regarding the civil legal consequences of construction which violates requirements of legal acts; it is specified that the matter relating to elimination of the consequences of construction which violates the requirements of legal acts shall be decided by the court under procedure prescribed by laws.

Thus, after Paragraph 3 of Article 4.103 of the CC had been set forth in the wording of 2 July 2010, the legal regulation, which is disputed by the petitioners, in the aspect investigated in the constitutional justice case at issue has changed in essence.

12. On 2 July 2010, the Seimas also adopted the Republic of Lithuania Law on Amending and Supplementing Articles 1, 2, 3, 5, 6, 12, 16, 20, 21, 23, 24, 27, 28, 33, 35, 40, 42, 45 of the Law on Construction, Amending the Title of Chapter Six Thereof, Recognising Article 231 Thereof as No Longer Valid, and Supplementing the Law with Article 281, Chapter Fourteen and Annex 1, which came into force (with certain exceptions) on 1 October 2010. It needs to be noted that some provisions of Article 28 (wording of 2 July 2010) of the Law on Construction will come into force on 1 January 2013.

12.1. Paragraph 71 (wording of 2 July 2010) of Article 2 of the Law on Construction prescribed: “‘Unauthorised construction’ means construction of a structure or its part without a valid construction permit or with a valid construction permit, but in violation of the essential solutions of the project of the structure.”

If one compares the legal regulation established in Paragraph 71 (wording of 2 July 2010) of Article 2 of the Law on Construction with the legal regulation established in Paragraph 71 (wording of 17 October 2006) of Article 2 of the Law on Construction, it becomes clear that, under Paragraph 71 (wording of 2 July 2010) of Article 2 of the Law on Construction, the construction of a structure is deemed to be unauthorised if a valid document permitting the construction is absent or the essential solutions of the project of the structure are violated; it has not been established in this provision that the construction is deemed to be unauthorised also in cases when the requirements laid down in the regulations on the protection of a protected area or the provisional regulations on the protection of a structure of cultural heritage, as well as the requirements of protection of heritage, are not complied with.

12.2. Article 2 (wording of 2 July 2010) of the Law on Construction was supplemented with new Paragraph 93, which separately entrenched the notion “essential solutions of the project of a structure”: “‘Essential solutions of the project of a structure’ mean the solutions of the project of a structure which determine the place of the structure in the plot, the purpose of the structure or its parts, the supporting constructions of the structure and their arrangement, the measures of the exterior of the structure (height, length, width, etc.) and which implement the special requirements for protection of protected areas and/or for protection of heritage of immovable cultural heritage valuables.”

12.3. Article 28 (wording of 2 July 2010) “Elimination of Consequences of Unauthorised Construction” of the Law on Construction inter alia prescribed:

1. Upon establishing that a structure has been built or is being built in an unauthorised manner, an officer of the State Territorial Planning and Construction Inspectorate under the Ministry of Environment, who carries out the State supervision of construction within the scope of competence ascribed to him by this Law, shall:

1) draw up immediately an act on unauthorised construction <…>;

2) draw up a report on administrative violations of law in a manner prescribed by the Code of Administrative Violations of Law, and consider a case on administrative violation of law regarding the imposition of an administrative penalty, or send this report to the court;

3) not later than within three working days from the drawing-up of an act on unauthorised construction, submit it to the head of the State Territorial Planning and Construction Inspectorate under the Ministry of Environment, or to the head of an administration sub-unit authorised by the latter.

2. The State Territorial Planning and Construction Inspectorate under the Ministry of Environment shall, within the scope of competence ascribed to it by this Law, consider a fact of unauthorised construction and, not later than within one month from the drawing-up of an act on unauthorised construction shall demand that the builder (client) or other person specified in Item 1 of Paragraph 1 of this Article remove, with his own funds, the results of the unauthorised construction:

1) by demolishing the structure and cleaning the construction site;

2) by disassembling the parts of the structure, which were reconstructed or remodelled in an unauthorised manner, and, if necessary, by cleaning the construction site;

3) by reconstructing (restoring) the demolished structure (its part) of cultural heritage, or the structure (its part) due to demolishment of which the public interest was violated, and, if necessary, by cleaning the construction site.

3. A 6-month term is established for carrying out the demands specified in Paragraph 2 of this Article, by specifying in the demand that in the cases pointed out in Items 1 and 2 of Paragraph 2 of this Article, as regards issuance of a document permitting construction under procedure of this Law and other legal acts, the person has the right to apply to the entities, specified in Article 23 of this Law, issuing the documents permitting construction. <...>

4. A person to whom the demands specified in either Item 1 or 2 of Paragraph 2 of this Article were laid down, shall have the right to prepare project documentation under procedure established in legal acts and, having paid the fee, established in Annex 1 of this Law, for legalisation of the unauthorised construction, to receive a document permitting the construction in case when in the land plot (territory) in which the unauthorised construction was established, the construction of a new structure of the same purpose is allowed, or the same operations of reconstruction or repair are allowed under valid documents of detailed territorial planning or under other documents of territorial planning (if they are mandatory) equated to the former by laws, as well as under general and special documents of territorial planning and if such construction is not in conflict with the imperative requirements of legal acts on environmental protection, protection of heritage, protection of protected territories <...>.

5. If the person receives a document permitting the construction within the established time period of carrying out the demand, he shall submit a copy of this document confirmed under procedure established by legal acts to the State Territorial Planning and Construction Inspectorate under the Ministry of Environment, which, not later than within 3 working days shall withdraw the demand laid down to this person.

6. If the person does not carry out the demand specified in Paragraph 2 of this article within the established time period for carrying out the demand or does not receive a document permitting the construction, the State Territorial Planning and Construction Inspectorate under the Ministry of Environment, not later than within one month of the end of the term of the obligation, shall apply to the court regarding the carrying-out the demand. The persons whose rights and legitimate interests have been violated due to an unauthorised construction may also apply to the court regarding demolition or disassembling of a structure which is being built or has been built.

7. By its decision, the court may obligate the builder (client) or other person specified in Item 1 of Paragraph 1 of this Article to do the following with his own funds within the established time period:

1) to allow to prepare project documentation under procedure established in legal acts within the established time period and, after the fee established in Annex 5 of this Law is paid for legalisation of the unauthorised construction, to receive a document permitting the construction (save the document permitting the construction specified in Item 5 of Paragraph 1 of Article 23 of this Law) in cases when in the land plot (territory) in which the unauthorised construction was established, the construction of a new structure of the same purpose is allowed or the same operations of reconstruction or capital repair are allowed under valid documents of detailed territorial planning or under other documents of territorial planning (if they are mandatory) equated to the former by laws, as well as under general and special documents of territorial planning and if such construction is not in conflict with the imperative requirements of legal acts on environmental protection, protection of heritage, protection of protected territories; or

2) to demolish the structure and clean the construction site;

3) to disassemble the parts of the structure, which were reconstructed or remodelled in an unauthorised manner, and, if necessary, to clean the construction site;

4) to reconstruct (restore) the demolished structure (its part) of cultural heritage, or the structure (its part) due to demolishment of which the public interest was violated, and, if necessary, to clean the construction site.

8. The court, while deciding the question whether to obligate the builder (client) or other person specified in Item 1 of Paragraph 1 of this Article to demolish the structure or not to demolish it, shall take account of the extent of the consequences which were brought about by the unauthorised construction to the environment and public interests, the consequences of removal of the unauthorised construction and possibilities to restore the situation that had existed prior to the unauthorised construction, also it shall assess the good faith of the persons who have acquired property rights on the grounds of administrative acts.

9. While adopting one of the decisions specified in Paragraph 7 of this Article, the court shall point out in its decision that in case the demand of the court has not been executed within the established time period, the structure that was built in an unauthorised manner or its part built in an unauthorised manner shall be demolished, dismantled or restored to the situation that had existed previously with funds of the builder (client) or of other person specified in Item 1 of Paragraph 1 of this Article. <...>”

If one compares the legal regulation established in Article 28 (wording of 2 July 2010) of the Law on Construction with the legal regulation established in Article 28 (wording of 19 November 2009) of the Law on Construction, it becomes clear that it became changed so the provisions regulating the removal of the consequences of an unauthorised construction entrenched not only the right of competent institutions to adopt a corresponding decision after considering the acts of an unauthorised construction, but also the right of the court considering the case on the civil legal consequences of construction violating requirements of legal acts to adopt a corresponding decision.

In the constitutional justice case at issue, as regards the aspect under consideration, it needs to be noted that Article 28 (wording of 2 July 2010) of the Law on Construction provides not only for the right of the court to obligate the builder to demolish or reconstruct the structure which is being built (or which has been built), or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.) within the established time, but also in some cases (when in the land plot (territory) in which the unauthorised construction was established, the construction of a new structure of the same purpose is allowed, or the same operations of reconstruction or repair are allowed under valid documents of detailed territorial planning or under other documents of territorial planning (if they are mandatory) equated to the former by laws, as well as under general and special documents of territorial planning and if such construction is not in conflict with the imperative requirements of legal acts on environmental protection, protection of heritage, protection of protected territories), having taken account of the extent of the consequences which were brought about by the unauthorised construction to the environment and public interests, the consequences of removal of the unauthorised construction and possibilities to restore the situation that had existed prior to the unauthorised construction, and having assessed the good faith of the persons who have acquired property rights on the grounds of administrative acts, to allow, under established procedure, the builder to prepare the project documentation within the established time period and to receive a document permitting the construction.

12.4. The Law on Construction was supplemented with Article 281 (wording of 2 July 2010) titled “Elimination of Consequences of Construction with an Illegally Issued Document Permitting the Construction”, which prescribed:

1. Having established that a document permitting the construction was issued illegally, the State Territorial Planning and Construction Inspectorate under the Ministry of Environment or other persons whose rights and legitimate interests are violated shall apply to:

1) a court of general jurisdiction regarding recognition of the document permitting the construction as invalid and elimination of the consequences of the construction if the construction was started;

2) an administrative court when the construction has not been started and only the document permitting the construction is contested in the court.

2. If the court, by its decision, has recognised the document permitting the construction as invalid, it, by its decision, shall:

1) obligate the builder (client) or other person specified in Item 1 of Paragraph 1 of Article 28 of this Law to demolish the structure and clean the construction site within the established time period with funds of the guilty persons established by the court;

2) obligate the builder (client) or other person specified in Item 1 of Paragraph 1 of Article 28 of this Law, within the established time period and with funds of the guilty persons established by the court, to dismantle the reconstructed or remodelled parts of the structure, or to restore the situation of a structure (to restore a structure) (its part) of cultural heritage or a structure (its part) due to demolition of which the public interest was violated;

3) allows to reconstruct or remodel the structure or its part under the properly refashioned project documentation within the established time, upon reception of a new document permitting the construction, provided the construction or remodelling of the structure is allowed under valid documents of detailed territorial planning or under other documents of territorial planning (if they are mandatory) equated to the former by laws, as well as under general and special documents of territorial planning and if such construction is not in conflict with the imperative requirements of legal acts on environmental protection, protection of heritage, protection of protected territories; in case these actions were not performed within the established time period, to execute the requirements specified in Items 1 and 2 of this Paragraph;

4) obligate competent institutions to issue a new document permitting the construction subsequent to the properly refashioned, within the established time, project documentation (if it is necessary) of the builder (client) or other person specified in Item 1 of Paragraph 1 of Article 28 of this Law, provided the construction of the structure does not violate valid documents of detailed territorial planning or other documents of territorial planning (if they are mandatory) equated to the former by laws, as well as the general or special solutions of documents of territorial planning and if such construction is not in conflict with the imperative requirements of legal acts on environmental protection, protection of heritage, protection of protected territories, in a case when the document permitting the construction was issued illegally due to procedures illegally performed by competent institutions.

3. The court, while deciding the question whether to obligate the builder (client) or other person specified in Item 1 of Paragraph 1 of Article 28 of this Law to demolish the structure or not to demolish it, shall take account of the extent of the consequences, which were brought about by the construction performed subsequent to illegally issued documents permitting the construction, to the environment and public interests, the consequences of elimination of the construction performed subsequent to illegally issued documents permitting the construction, and possibilities to restore the situation that had existed prior to the construction performed subsequent to illegally issued documents permitting the construction, also it shall assess the good faith of the persons who have acquired property rights on the grounds of administrative acts.

4. While adopting one of the decisions specified in Paragraph 2 of this Article, the court shall point out in its decision that in case the demand of the court has not been executed within the established time period, the structure or its part that were built subsequent to illegally issued documents permitting the construction shall be demolished, dismantled or restored to the situation that had existed previously with funds of the builder (client) or of other person specified in Item 1 of Paragraph 1 of Article 28 of this Law.

5. The persons who were issued documents (specified in Item 3 of Paragraph 2 of this Article) permitting the construction, received within the time period established by a court decision, shall, not later than within three days of reception of these documents, present their copies (confirmed under procedure established by legal acts) to the State Territorial Planning and Construction Inspectorate under the Ministry of Environment.

6. Having established that the structure (its part), regarding which it was decided to demolish it or to restore it to its previous state, belongs to the builder (client), who is not guilty as regards the illegal issuance of the document permitting the construction, or to an acquirer in good faith, the court, subsequent to a claim of this person, shall also decide the question on reimbursement of damage under procedure established by laws. <...>”

Thus, Article 281 (wording of 2 July 2010) of the Law on Construction has separately distinguished the situations of construction performed subsequent to an illegally issued construction permit, and has established the right of a court, after the illegally issued construction permit is recognised as invalid, to obligate the builder to demolish the structure, to dismantle the reconstructed or remodelled parts of the structure, to restore the situation of the structure (to restore the structure) (its part) of cultural heritage or a structure (its part) due to demolition of which the public interest was violated, and, to reconstruct or remodel the structure or its part under the properly refashioned project documentation within the established time, upon reception of a new document permitting the construction.

12.5. It needs to be held that after Article 28 (wording of 2 July 2010) of the Law on Construction had entrenched the right of a court to assess the circumstances of construction violating requirements of legal acts and, on the grounds of the established situations, while taking account of the legal regulation, to adopt a corresponding decision (not only a decision to demand that the builder demolish or reconstruct according to the requirements the structure (its part which) was built without authorisation, and clean the construction site, but also a decision to allow, under established procedure, the builder to prepare the project documentation within the established time period and to receive a document permitting the construction), and after the Law on Construction had been supplemented with new Article 281, which regulates the legal relations of elimination of the legal consequences of construction subsequent to an illegally issued construction permit, and entrenched the right of a court, having recognised a document permitting construction as invalid, to adopt a corresponding decision, the legal regulation (disputed by the petitioner) entrenched in Article 28 (wordings of 22 October 2006 and 19 November 2009) of the Law on Construction, in the aspect considered in the constitutional justice case at issue became changed in essence.

13. It has been mentioned that after Article 4.103 of the CC had been set forth in the wording of 2 July 2010, the legal regulation (disputed by the petitioners) entrenched in Paragraph 3 of Article 4.103 (wording of 22 October 2006) of the CC in the aspect considered in the constitutional justice case at issue became changed in essence as well.

14. Under Paragraph 4 of Article 69 of the Law on the Constitutional Court, the annulment of the disputed legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings. The Constitutional Court has held that the same can also be said as regards the cases when the disputed legal act (part thereof) was not repealed, however, the legal regulation established therein was changed (Constitutional Court ruling of 4 March 2003, decision of 14 March 2006, rulings of 30 March 2006, 14 April 2006, and 21 September 2006, decision of 28 May 2007, as well as ruling of 22 June 2009). However, as it has been held by the Constitutional Court more than once, when a court investigating a case applies to the Constitutional Court after it has doubts concerning the compliance of a law or other legal act applicable in the case with the Constitution (other legal act of higher power), the Constitutional Court has a duty to investigate the request of the court regardless of the fact whether the disputed law or other legal act is valid or not.

15. In the context of the constitutional justice case at issue it needs to be emphasised that the practice of other courts also shows that courts, while deciding cases on construction violating requirements of legal acts and while adopting a decision on elimination of the consequences of such construction, must take account of all circumstances of the case and the extent of the consequences which were brought about by the unauthorised construction to the environment and public interests.

15.1. For instance, in the case V. Č. et al. v. V. B. et al. (case No. 3K-3-240/2009) the Supreme Court of Lithuania held: “<...> The application of the legal consequences of illegal construction established in Article 4.103 of the CC is determined not only by the fact of commission of the violation, but also the circumstances, which are significant in the application of a corresponding sanction. Which sanction specified by the law should be applied is decided by a court in each concrete situation depending on the circumstances in the existence of which the violation of law was committed, as well as depending on the gravity of the violation, the importance of the defended right and other circumstances. The legal consequences of illegal construction must be applied while taking account of the principle of the proportionality of the applied measures to the objective sought. The principle of proportionality requires to find a balance not only between public and private interests, but also among private interests.”

15.2. The issues of illegal construction and their consequences have also been discussed in the jurisprudence of the European Court of Human Rights (hereinafter also referred to as the ECHR). In the case Hamer v. Belgium, the ECHR held that even an illegally built structure is to be regarded as property of the builder, thus it is protected and defended under the principle of inviolability of ownership, since in certain cases, if a decision is taken to demolish an illegally built structure, the builder experiences especially grave material and economic consequences. Regardless of this fact, the ECHR also noted that the economic imperatives and even some innate rights, such as the right to ownership, must not outweigh the imperatives of environmental protection and the necessity to ensure the protection of the public interest, especially in the cases when the state has established the corresponding regime for construction by legal means. While assessing the protection of the right to ownership in the context of illegal construction, it is necessary to secure a balance between the interests of society and those of a person, therefore, in some cases a decision to demolish a structure may be regarded as proper and proportionate to the committed violation of law (judgement of 27 November 2007 in the case Hamer v. Belgium, 21861/03).

III

1. It has been mentioned that the petitioners request that the Constitutional Court investigate into whether Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC, to the extent that this paragraph does not provide that a court, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, may adopt a decision, which is different from an obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.), is not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law, and whether Paragraph 3 of Article 28 (wordings of 17 October 2006 and 19 November 2009) of the Law on Construction, to the extent that this paragraph did not (does not) provide that a court, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, might (may) adopt a decision, which is different from an obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.), was not (is not) in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

2. Paragraph 1 of Article 109 of the Constitution prescribes: “In the Republic of Lithuania, justice shall be administered only by courts.”

3. While construing Paragraph 1 of Article 109 of the Constitution, in which it is established that, in the Republic of Lithuania, justice shall be administered only by courts, the Constitutional Court has held that courts, while administering justice, must secure the implementation of the law expressed in the Constitution, laws and other legal acts, must guarantee the supremacy of law and protect human rights and freedoms. A duty to courts stems from Paragraph 1 of Article 109 of the Constitution to consider cases justly and objectively and to adopt reasoned and reasonable decisions (Constitutional Court rulings of 15 May 2007 and 24 October 2007). The principle of justice entrenched in the Constitution as well as the provision that justice is administered solely by courts mean that the constitutional value is not the adoption of a decision in court, but rather the adoption of a just court decision; the constitutional concept of justice implies not only a formal and nominal justice administered by the court, not only an outward appearance of justice administered by the court, but, most importantly, such court decisions (other court final acts), which by their content are not unjust; the justice administered only formally by the court is not the justice which is consolidated in and protected and defended by the Constitution (Constitutional Court rulings of 21 September 2006, 24 October 2007, and 21 January 2008).

4. The Constitutional Court has also held that the entire legal system must be based upon the constitutional principle of a state under the rule of law, which also pre-supposes the proportionality of the established legal liability (Constitutional Court ruling of 2 October 2001). The constitutional principles of justice and a state under the rule of law also imply that the measures established by the state for violations of law must be proportionate (adequate) to the violation of law, they must be in line with the legitimate and generally important objectives sought, they may not restrict the person clearly more than it is necessary in order to reach these objectives; there must be a fair balance (proportion) between the objective sought and the means to attain this objective (Constitutional Court rulings of 6 December 2000, 2 October 2001, 26 January 2004, 3 November 2005, 10 November 2005, 21 January 2008, 15 March 2008, and 17 September 2008). Thus, in the course of legislative establishment of liability and its implementation, one must sustain a fair balance between the interests of society and those of a person so as to evade unreasonable limitations of the rights of the person. On the basis of this principle, the rights of a person may be limited by laws to the extent only necessary for protection of public interests, and there must be a reasonable relation between the adopted measures and the legitimate and commonly important objective sought. To attain this objective, such measures may be established which would be sufficient and which would limit the rights of the person not more than it is necessary (Constitutional Court rulings of 2 October 2001 and 10 April 2009).

5. Alongside, it needs to be emphasised that, as it has been held by the Constitutional Court, the legislator, when regulating corresponding relations by means of the law, must heed the Constitution, inter alia the constitutional principles of a state under the rule of law, equality of rights, public and fair consideration of the case, impartiality and independence of judges. One must establish the legal regulation in laws whereby the jurisdictional institutions and other institutions which apply law would be independent, impartial, that they would seek to establish the substantive truth in the case and adopt all decisions on the grounds of law, that the constitutional right of the person to proper legal process, which is derived from inter alia the constitutional principle of a state under the rule of law and which is inseparably related with it, would be heeded, that the legal preconditions would be created to the court to investigate all circumstances important to the case and to adopt a just decision in the case. And, on the other hand, it is not permitted to establish any such legal regulation which would not permit the court, after it takes account of all important circumstances of the case and by following law, without transgressing the imperatives of justice and reasonableness which arise from the Constitution, to adopt a just decision in the case and thus to administer justice. Otherwise, the powers of the court to administer justice, which arise from inter alia Article 109 of the Constitution, would be limited or even denied, and one would deviate from the constitutional concept of the court as the institution which administers justice in the name of the Republic of Lithuania, as well as from the constitutional principles of a state under the rule of law and justice (Constitutional Court ruling of 21 September 2006).

6. In addition, it needs to be noted that, under the Constitution, inter alia the constitutional principle of a state under the rule of law, there may not be established any such legal regulation, in the course of application of which a person, who fails to observe requirements established by legal acts, could avoid legal liability. The constitutional principle of a state under the rule of law would be violated if the law failed to establish corresponding measures of legal pressure for persons who do not observe requirements established in legal acts. Under the Constitution, the legislator has a duty to establish such legal regulation so that the measures which are established in legal acts and which are applied would be proportionate to the objective sought, would not limit the rights of a person more than necessary in order to attain the legitimate and commonly significant objective, and would not create pre-conditions to abuse law.

7. In the context of the case at issue, the constitutional principle of a state under the rule of law is to be construed together with Paragraph 1 of Article 47, Article 54 (wherein inter alia the constitutional imperative of environmental protection is entrenched), Article 23 (whereby the protection of the rights of ownership are guaranteed) of the Constitution.

8. Paragraph 1 of Article 47 of the Constitution prescribes: “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.”

8.1. The Constitutional Court has held that this constitutional provision means that that the listed objects may belong by right of ownership solely to the state, save the exceptions that originate directly from the Constitution; 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 ruling of 8 July 2005).

8.2. The Constitutional Court has noted that one may recognise not any internal waters, forests, and parks as internal waters, forests, and parks of state importance, but only those whose continual value is so big and the necessity to preserve it to the posterity is so pressing that in case they were not recognised as being of state importance, a threat for their preservation would arise; while taking account of the special continual value of internal waters, forests and parks of state importance and the necessity to preserve them to the posterity, the state is under constitutional obligation to take care of these objects and preserve them. The recognition of land, forests, parks and water bodies, as well as those that are in areas of special value, as being of state importance, implies special legal regulation of the relations linked with supervision, protection and use of such objects. When taking account of the special continual value of the said objects, the importance and necessity to preserve them to the posterity, special, individual legal regime may be established to such objects, when compared with other objects (Constitutional Court ruling of 14 March 2006).

8.3. The Constitutional Court has also noted that, under the Constitution, the state has a duty also to take care of the natural objects of state importance, which by right of ownership belong not to the state, but other persons, and to ensure their protection. This state duty cannot be interpreted as exempting the owners of corresponding natural objects themselves to contribute to the preservation of the said objects of nature and to observe the legal regime established in regard of these natural objects (Constitutional Court ruling of 14 March 2006).

9. Article 54 of the Constitution prescribes:

The State shall take care of the protection of the natural environment, wildlife and plants, individual objects of nature and areas of particular value and shall supervise a sustainable use of natural resources, their restoration and increase.

The destruction of land and the underground, the pollution of water and air, radioactive impact on the environment as well as depletion of wildlife and plants shall be prohibited by law.”

9.1. The Constitutional Court has also held in its rulings more than once that environmental protection is the concern and obligation of the state and the population and that both public and private interests should be devoted to improve the quality of the environment (Constitutional Court rulings of 13 May 2005 and 22 June 2009).

Under the Constitution, the natural environment, its fauna and flora, individual objects of nature and districts of particular value are national values of universal importance (Constitutional Court rulings of 13 May 2005 and 14 March 2006). A proper and rational use as well as protection of land, forests and water bodies is a public interest protected by the Constitution (Constitutional Court ruling of 13 May 2005); the state, while having the constitutional obligation to act so that one would guarantee the protection of natural environment and its individual objects, rational use of natural resources, their restoration and increase, may establish, by means of a law, also such legal regulation whereby the use of individual objects of natural environment (natural resources) would be limited (Constitutional Court ruling of 6 September 2007 and decision of 4 July 2008).

9.2. The Constitutional Court, while construing Article 54 of the Constitution, has held that in this norm one of the aims of the activities of the state is formulated, i.e., to ensure the rights of people to healthy and clean environment (Constitutional Court ruling of 1 June 1998).

9.3. It needs to be noted that certain parts (areas) of the territory of Lithuania which, due to their ecological, cultural, historical, scientific and other significance, differ from other parts (areas) of the territory of Lithuania, provided this is constitutionally grounded, not only may but also must be attributed to the category of areas of particular value (Constitutional Court ruling of 5 July 2007).

It also needs to be noted that the legislator who enjoys the powers to ascribe corresponding areas to areas of special value, while taking account of a special imperishable value of the objects of nature which are in the territories of special value, their significance and the necessity to preserve them for posterity, the constitutional duty that falls upon the state to take care of the preservation of areas of particular value and rational use thereof, also enjoys the powers to establish a special regime of the protection and use of these areas (Constitutional Court decision of 4 July 2008); such special legal regime implies inter alia certain conditions, limitations and prohibitions of the economic and other activity in these areas, due to which the landscape, individual objects which are in corresponding areas can be changed, etc.; such limitations and prohibitions must be constitutionally grounded (Constitutional Court rulings of 14 March 2006 and 5 July 2007).

When one regulates, by means of legal acts, the relations linked with the ownership and use of land, forests, water bodies, also those that are in especially valuable places, as well as with other activity in these places, one must heed norms and principles of the Constitution, inter alia the constitutional principle of a state under the rule of law. The said constitutional principle obligates one to pay heed to legitimate expectations, to ensure their protection, not to violate the requirements of proportionality, reasonableness and justice (Constitutional Court rulings of 14 March 2006 and 5 July 2007).

9.4. The Constitutional Court has held that the Constitution does not contain any such provisions permitting to assert that land could be used for residential, public and economic-commercial construction without any technical requirements, those of security of structures and their rational arrangement, and without territorial urban planning (Constitutional Court ruling of 14 March 2006).

In the context of the constitutional justice case at issue it needs to be noted that the legislator must establish such legal regulation of construction relations whereby one would secure the public interest protected by the Constitution, inter alia the protection of natural environment, of individual objects of nature, of protected territories and areas of value, and a proper and rational use of land, forests and water bodies. The public interest protected by the Constitution to properly and rationally use land, forests and water bodies implies a duty of the legislator in the course of regulation of construction relations by means of a law to establish the legal regulation which would secure sustainable development of the territory, the formation of a healthy environment for living, as well as proper conditions for development of the infrastructure of residential areas and development of other spheres of activity.

10. Article 23 of the Constitution prescribes:

Property shall be inviolable.

The rights of ownership shall be protected by laws.

Property may be taken over only for the needs of society according to the procedure established by law and shall be justly compensated for.”

10.1. The Constitutional Court has held more than once that the provisions of Article 23 of the Constitution, while constituting a whole, disclose the essence of protection of the rights of ownership (Constitutional Court rulings of 27 May 2002, 30 October 2008, and 10 April 2009); Article 23 of the Constitution enshrines the principle of inviolability of property; under the Constitution, the owner has the right to perform any actions in regard of his property, save those prohibited by the law, as well as to use his property and determine its future in any way, which does not violate the rights and freedoms of other persons (Constitutional Court rulings of 14 March 2006, 20 May 2008 and 30 October 2008).

10.2. The Constitutional Court has also held more than once that, under the Constitution, the right of ownership is not absolute; it can be limited by means of a law due to the character of the object of ownership, due to committed deeds, which are contrary to law, due to the need which is necessary to the society and constitutionally grounded, and/or due to other reasons when in case of non-limitation of this right it would be impossible to protect the values entrenched in the Constitution and damage would be inflicted on a public interest; limitation upon the right of ownership is not impermissible, however, in all cases the following conditions must be observed: the right of ownership may be limited only on the grounds of a law; the limitations should be necessary in a democratic society in order to protect the rights and freedoms of other persons, the values entrenched in the Constitution and/or the constitutionally important objectives; the principle of proportionality must be followed, under which the measures provided for in laws must be in line with the objectives sought, which are necessary to society and which are constitutionally justified.

It needs to be noted that, under the Constitution, the presence of a public interest (constitutionally important objective) may serve grounds for limitation upon a person’s right to ownership only in such a case when due to the nature of property and/or other reasons when in case of non-limitation of this right it would be impossible to protect the values entrenched in the Constitution and a public interest would be harmed (Constitutional Court ruling of 14 March 2002).

10.3. The Constitutional Court has emphasised more than once that ownership includes obligations (inter alia Constitutional Court rulings of 19 September 2002, 13 May 2005, and 20 May 2008). The subjects of property relations regulated by legal norms possess, as a rule, not only certain rights but also respective duties; such a co-ordination of rights and freedoms manifests itself in laws by consolidating not only the rights of the owner but also imposing respective prohibitions to other persons, as well as the owner himself; the practice of application of legal norms indicates that the laws regulating the ownership rights are often violated not only by encroaching upon the rights of the owner but also, for the owner’s part, by not keeping to the limits of possession, use and disposal of property as defined by the law (Constitutional Court ruling of 8 April 1997). The owner who has the right to possess, use and dispose of his property, may not violate laws and the rights of other persons (Constitutional Court rulings of 14 March 2002 and 19 September 2002).

The inviolability of property and protection of subjective rights of ownership which are entrenched in the Constitution cannot be interpreted as grounds for opposing the right and interests of the owner to the public interest, as well as the rights, freedoms and legitimate interests of other persons (Constitutional Court rulings of 13 May 2005, 14 March 2006 and 20 May 2008).

10.4. While construing the provisions, which originate from the Constitution, that ownership includes obligations, and that the right of ownership is not absolute, together with Article 54 of the Constitution, the Constitutional Court has held that all owners, possessors and users of land lots, forests and water bodies, must pay heed to the constitutional imperative of the protection of natural environment and protect the natural environment, not deteriorate its state, and not inflict harm upon the natural environment (Constitutional Court rulings of 14 March 2006 and 22 June 2009).

10.5. In the context of the constitutional justice case at issue it needs to be noted that the legislator, while seeking to secure the public interest protected by the Constitution, inter alia the protection of natural environment, that of individual objects of nature, that of protected territories and areas of value, as well as a proper and rational use of land, forests and water bodies, may provide for various measures, by means of which one seeks to eliminate the consequences of construction violating requirements of legal acts. Such measures may be inter alia an obligation to demolish a structure which is being built (or which has been built), or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.). In the course of establishing such measures the principle of proportionality must be followed, under which the measures provided for in laws must be in line with the objectives sought, which are necessary to society and which are constitutionally justified. The measures should be necessary in order to protect the rights and freedoms of other persons, the values entrenched in the Constitution and/or the constitutionally important objectives.

From the Constitution, inter alia Paragraph 1 of Article 109 thereof, from the constitutional principles of justice and a state under the rule of law a duty arises for the legislator to establish, in the course of regulation of the relations related to elimination of the consequences of construction violating requirements of legal acts, the criteria and/or the situations, in the presence of which a court, which decides on the legal consequences of construction violating requirements of legal acts, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, would have a possibility to choose a proper measure for elimination of the consequences of construction violating requirements of legal acts.

IV

On the compliance of Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the Civil Code with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

1. The petitioners request investigation into whether Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC, to the extent that this paragraph does not provide that a court, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, may adopt a decision, which is different from an obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.), is not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

2. Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC prescribed:

The court by its decision may:

1) obligate the builder to properly remodel the structure within an established period of time (demolish a part of the structure, reconstruct it, etc.);

2) obligate the builder to demolish the structure within a given time frame.”

3. Thus, Paragraph 3 (which is being disputed by the petitioners) of Article 4.103 (wording of 17 October 2006) of the CC established that that a court, which considers a case regarding the legal consequences of unauthorised construction or of construction, which is not unauthorised, but which violates the solutions of the project of the structure or requirements of legal acts, could adopt one of the two decisions: to obligate the builder to properly remodel the structure within an established period of time (demolish a part of the structure, reconstruct it, etc.) or to demolish the structure; a possibility for the court to adopt a different decision was not provided for. Consequently, the disputed provision of Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC was formulated in an imperative manner.

4. It has also been mentioned that the legal regulation established in Article 4.103 (wording of 17 October 2006) of the CC encompasses essentially different situations:

the legal regulation established in Paragraph 3 of Article 4.103 of the CC includes inter alia the situations, when a structure which is being built (or has been built) or other construction operations which have been performed are not allowed in the place in question at all, whereas the established violations may objectively be removed only by demolishing or reconstructing the structure;

the legal regulation established in Paragraph 3 of Article 4.103 of the CC includes inter alia also such situations, when a structure which is being built (or has been built) or other construction operations which have been performed are essentially allowed in the place in question, whereas the established violations can objectively be rectified without demolishing or reconstructing the structure.

5. In this context it needs to be noted that, as mentioned, under the Constitution, the legislator, while seeking to secure the public interest protected by the Constitution, inter alia the protection of natural environment, that of individual objects of nature, that of protected territories and areas of value, as well as a proper and rational use of land, forests and water bodies, may provide for various measures, by means of which one seeks to eliminate the consequences of construction violating requirements of legal acts; such measures may be inter alia an obligation to demolish a structure which is being built (or which has been built), or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.); in the course of establishing such measures the principle of proportionality must be followed, under which the measures provided for in laws must be in line with the objectives sought, which are necessary to society and which are constitutionally justified; the measures should be necessary in order to protect the rights and freedoms of other persons, the values entrenched in the Constitution and/or the constitutionally important objectives.

Therefore, the legal regulation established in Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC whereby a court, having considered a case on the legal consequences of construction violating requirements of legal acts, had to adopt a decision obligating the builder to demolish the structure or to properly remodel it (demolish a part of the structure, reconstruct it, etc.) in the situations when the construction operations performed in the place in question are not permissible at all, while the established violations may objectively be eliminated only by demolishing or reconstructing the structure, is proportionate (adequate) to the committed violation and in line with the legitimate and generally important objectives sought in order to protect the violated rights of persons, to maintain a fair balance between the interest of society and those of a person, to secure the protection of environment, protected territories, areas of value and other objects of nature, to secure rational use of territories, and is to be assessed as constitutionally grounded.

6. The legal regulation established in Paragraph 3 (wording of 17 October 2006) of Article 4.103 of the CC, when it includes such situations, when a structure which is being built (or has been built) or other construction operations which have been performed are essentially allowed in the place in question, whereas the established violations can objectively be rectified without demolishing or reconstructing the structure, is to be assessed differently.

6.1. It has been mentioned that Paragraph 3 (which is being disputed by the petitioners) of Article 4.103 (wording of 17 October 2006) of the CC established that that a court, which considers a case regarding the civil legal consequences of unauthorised construction or of construction, which is not unauthorised, but which violates the solutions of the project of the structure or requirements of legal acts, could adopt one of the two decisions: to obligate the builder to properly remodel the structure within an established period of time (demolish a part of the structure, reconstruct it, etc.) or to demolish the structure; the disputed provision was formulated in an imperative manner, therefore, even invoking Paragraph 4 of Article 1.5 of the CC (according to which, while construing and applying laws, a court shall be guided by the principles of justice, reasonableness and good faith), a court, having stated the fact of existence of construction violating requirements of legal acts, even in the situations when a structure which is being built (or has been built) or other construction operations which have been performed are essentially allowed in the place in question, whereas the established violations can objectively be rectified without demolishing or reconstructing the structure, could not adopt any other decision but only to obligate the builder to properly remodel the structure within an established period of time (demolish a part of the structure, reconstruct it, etc.) or to demolish the structure.

6.2. It has also been mentioned that a duty to courts stems from Paragraph 1 of Article 109 of the Constitution to consider cases justly and objectively and to adopt reasoned and reasonable decisions; the constitutional value is not the adoption of a decision in court, but rather the adoption of a just court decision. The entire legal system must be based upon the constitutional principle of a state under the rule of law, which also pre-supposes the proportionality of the established legal liability; the measures established by the state for violations of law must be proportionate (adequate) to the violation of law, they must be in line with the legitimate and generally important objectives sought; there must be a fair balance (proportionality) between the objective sought and the measures chosen to achieve this objective.

6.3. It has also been mentioned that the legislator, when regulating corresponding relations by means of the law, must heed the Constitution, inter alia the constitutional principles of a state under the rule of law, equality of rights, public and fair consideration of the case, impartiality and independence of judges. One must establish the legal regulation in laws whereby legal preconditions would be created to a court to investigate all circumstances significant to a case and to adopt a just decision; it is not permitted to establish any such legal regulation which would not permit the court, after it takes account of all important circumstances of the case and by following law, without transgressing the imperatives of justice and reasonableness which arise from the Constitution, to adopt a just decision in the case and thus to administer justice. Otherwise, the powers of the court to administer justice, which arise from inter alia Article 109 of the Constitution, would be limited or even denied, and one would deviate from the constitutional concept of the court as the institution which administers justice in the name of the Republic of Lithuania, as well as from the constitutional principles of a state under the rule of law and justice.

6.4. In the context of the constitutional justice case at issue it needs to be noted that a duty arises to the legislator from the Constitution, inter alia Paragraph 1 of Article 109 thereof, from the constitutional principles of justice and a state under the rule of law, to establish such legal regulation, whereby a court, while considering a case on the legal civil consequences of construction violating requirements of legal acts, while having assessed all circumstances of the case, would have a possibility to adopt not a formal decision, but a decision, whereby the measure established by the law (the obligation provided for in the law, which is imposed upon the builder) would be proportionate (adequate) to the committed violation and would be in line with the legitimate and generally important objectives sought in order to defend violated rights of other persons and to maintain a fair balance between the interests of society and those of a person.

6.5. It needs to be held that the legal regulation established in Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC, whereby a court, while considering a case on the legal civil consequences of construction violating requirements of legal acts, in the situations when a structure which is being built (or has been built) or other construction operations which have been performed are essentially allowed in the place in question, whereas the established violations can objectively be rectified without demolishing or reconstructing the structure, could not adopt any other decision but only to obligate the builder to properly remodel the structure within an established period of time (demolish a part of the structure, reconstruct it, etc.) or to demolish the structure, created preconditions for such legal situations to appear, where the possibilities of the court to administer justice were limited. It is not in conformity with Paragraph 1 of Article 109 of the Constitution and is not in line with the constitutional principles of justice and a state under the rule of law.

7. Thus, from the Constitution, inter alia Paragraph 1 of Article 109 thereof, from the constitutional principles of justice and a state under the rule of law a duty arises for the legislator to establish, in the course of regulation of the relations related to elimination of the consequences of construction violating requirements of legal acts, the criteria and/or the situations, in the presence of which a court, which decides on the legal consequences of construction violating requirements of legal acts, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, would be able to adopt a just decision and thus to administer justice.

8. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC, whereby in case a structure (its part) has been built or is being built in an unauthorised manner or not in an unauthorised manner, but in violation of the solutions of the structure or in violation of requirements of legal acts, the court investigating the case, by its decision, “may: 1) obligate the builder to properly remodel the structure within an established period of time (demolish a part of the structure, reconstruct it, etc.); 2) obligate the builder to demolish the structure within a given time frame”, to the extent that it did not provide for any criteria and/or situations in the presence of which a court, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, could adopt also a different decision, was in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of justice and a state under the rule of law.

V

On the compliance of Article 28 (wordings of 17 October 2006 and 19 November 2009) of the Law on Construction with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

1. It has been mentioned that the petitioners inter alia request investigation into whether Paragraph 3 of Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that this paragraph did not provide that a court, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, might adopt a decision, which is different from an obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.), was not in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

2. Paragraph 3 of Article 28 (wording of 17 October 2006) of the Law on Construction prescribed: “If the builder (client) does not carry out the requirement specified in Item 1 of Paragraph 2 of this Article within the set time limit, the county governor’s administration or the State Territorial Planning and Construction Inspectorate under the institution authorised by the Government shall, within the scope of competence specified in Paragraphs 3, 4, 6, and 7 of Article 27 of this Law, submit to the court an request (application) regarding the carrying-out of obligations.”

3. It has been mentioned that, under Paragraph 3 of Article 28 (wording of 17 October 2006) of the Law on Construction, a court, while deciding on the execution of the obligations adopted by the competent institutions and while seeking to secure the control of the reasonableness and lawfulness of the adopted obligations, having stated the existence of the fact of the construction that violated the requirements of legal acts, could not adopt any other decision different from the possible decisions of the competent institutions, which were entrenched in Paragraph 2 (wording of 17 October 2006) of Article 28 of the Law on Construction, i.e. it could only confirm a decision to demolish the structure built in an unauthorised manner or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.) and to obligate to execute such a decision.

4. It has been held that the situations where a structure which is being built (or which has been built) or other construction operations which have been performed are permissible in the place in question, whereas the established violations can objectively be corrected without demolishing or reconstructing the structure are essentially different from the situations where a structure which is being built (or which has been built) or other construction operations which have been performed are not permissible in the place in question at all, whereas the established violations can objectively be eliminated only by demolishing or reconstructing the structure.

5. The legal regulation established in Paragraph 3 of Article 28 (wording of 17 October 2006) of the Law on Construction did not provide for a possibility for a court, which was deciding on the execution of the obligations imposed by the competent institution, even in cases when a structure which was being built (or had been built) or other construction operations which had been performed were essentially allowed in the place in question, whereas the established violations could objectively be rectified without demolishing or reconstructing the structure, to adopt a different decision than the confirmation of the obligation by the competent institutions for the builder to demolish or reconstruct the structure which is being built (or which has been built), or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.) or to demolish the structure.

In other words, the possibilities of a court which was deciding on the execution of the obligations under Paragraph 3 of Article 28 of the Law on Construction when a structure which was being built (or had been built) or other construction operations which had been performed were essentially allowed in the place in question, whereas the established violations could objectively be rectified without demolishing or reconstructing the structure, to administer justice and adopt a just decision were limited, since the disputed legal regulation had not established any criteria and/or situations in the presence of which a court, having stated the fact of construction violating requirements of legal acts, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, could be allowed to adopt also a different decision than the confirmation of the obligation by the competent institutions for the builder to demolish or reconstruct the structure which was being built (or which had been built), or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.).

6. Having held in the constitutional justice case at issue that the legal regulation established in Paragraph 3 of Article 4.103 (wording of 17 October 2006) of the CC, whereby a court had to adopt a decision in all cases to obligate the builder to demolish the structure (its part) which was being built or which had been built or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.), since the disputed legal regulation did not provide for any criteria and/or situations in the presence of which a court, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, could adopt also a different decision, was in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of justice and a state under the rule of law, on the grounds of the same arguments one is to hold that Paragraph 3 of Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that it had not established any criteria and/or situations in the presence of which a court, having stated the fact of construction violating requirements of legal acts, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, could be allowed to adopt also a different decision than the confirmation of the obligation by the competent institutions for the builder to demolish or reconstruct the structure which is being built (or which has been built), or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.), was in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of justice and a state under the rule of law.

7. It has been mentioned that the petitioners inter alia request investigation into whether Paragraph 3 of Article 28 (wording of 19 November 2009) of the Law on Construction, to the extent that this paragraph does not provide that a court, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, may adopt a decision, which is different from an obligation for a person to demolish or to reconstruct the structure (to demolish part of the structure, to rebuild it, etc.), was not (is not) in conflict with Paragraph 1 of Article 109 of the Constitution, with the constitutional principles of justice and a state under the rule of law.

8. Paragraph 3 of Article 28 (wording of 19 November 2009) of the Law on Construction prescribed: “If the builder (client) does not carry out the requirement specified in Items 1 of Paragraph 2 of this Article within the set time limit, the State Territorial Planning and Construction Inspectorate under the Ministry of Environment shall apply to the court regarding the carrying-out the demand.”

9. It has been mentioned that if one compares the legal regulation established in Paragraph 3 of Article 28 (wording of 19 November 2009) of the Law on Construction with the legal regulation established in Paragraph 3 of Article 28 (wording of 17 October 2006) of the Law on Construction it is obvious that the legal regulation established in Paragraph 3 of Article 28 (wording of 19 November 2009) of the Law on Construction from the aspect disputed by the petitioner did not undergo any essential changes.

10. Having held in the constitutional justice case at issue that Paragraph 3 of Article 28 (wording of 17 October 2006) of the Law on Construction, to the extent that it had not established any criteria and/or situations in the presence of which a court, having stated the fact of construction violating requirements of legal acts, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, could be allowed to adopt also a different decision than the confirmation of the obligation by the competent institutions for the builder to demolish or reconstruct the structure which was being built (or which had been built), or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.), was in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of justice and a state under the rule of law, on the grounds of the same arguments one is to hold that Paragraph 3 of Article 28 (wording of 19 November 2009) of the Law on Construction, to the extent that it had not established any criteria and/or situations in the presence of which a court, having stated the fact of construction violating requirements of legal acts, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, could be allowed to adopt also a different decision than the confirmation of the obligation by the competent institutions for the builder to demolish or reconstruct the structure which was being built (or which had been built), or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.), was in conflict with Paragraph 1 of Article 109 of the Constitution and with the constitutional principles of justice and a state under the rule of law.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

ruling:

1. To recognise that Paragraph 3 of Article 4.103 (wording of 17 October 2006; Official gazette Valstybės žinios, 2006, No. 116-4403) of the Civil Code of the Republic of Lithuania, whereby in case a structure (its part) has been built or is being built in an unauthorised manner or not in an unauthorised manner, but in violation of the solutions of the structure or in violation of requirements of legal acts, the court investigating the case, by its decision, “may: 1) obligate the builder to properly remodel the structure within an established period of time (demolish a part of the structure, reconstruct it, etc.); 2) obligate the builder to demolish the structure within a given time frame”, to the extent that it did not provide for any criteria and/or situations in the presence of which a court, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, could adopt also a different decision, was in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and with the constitutional principles of justice and a state under the rule of law.

2. To recognise that Paragraph 3 of Article 28 (wording of 17 October 2006; Official gazette Valstybės žinios, 2006, No. 116-4402) of the Law on Construction of the Republic of Lithuania, to the extent that it had not established any criteria and/or situations in the presence of which a court, having stated the fact of construction violating requirements of legal acts, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, could be allowed to adopt also a different decision than the confirmation of the obligation by the competent institutions for the builder to demolish or reconstruct the structure which was being built (or which had been built), or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.), was in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and with the constitutional principles of justice and a state under the rule of law.

3. To recognise that Paragraph 3 of Article 28 (wording of 19 November 2009; Official gazette Valstybės žinios, 2009, No. 144-6352) of the Law on Construction of the Republic of Lithuania, to the extent that it had not established any criteria and/or situations in the presence of which a court, having stated the fact of construction violating requirements of legal acts, having assessed all circumstances of the case and while following the principles of justice, reasonableness and proportionality, could be allowed to adopt also a different decision than the confirmation of the obligation by the competent institutions for the builder to demolish or reconstruct the structure which was being built (or which had been built), or to properly remodel it (to demolish part of the structure, to reconstruct it, etc.), was in conflict with Paragraph 1 of Article 109 of the Constitution of the Republic of Lithuania and with the constitutional principles of justice and a state under the rule of law.

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

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

Justices of the Constitutional Court: Armanas Abramavičius
                                                                      Toma Birmontienė
                                                                       Pranas Kuconis
                                                                       Kęstutis Lapinskas
                                                                       Zenonas Namavičius
                                                                       Egidijus Šileikis
                                                                       Algirdas Taminskas
                                                                       Romualdas Kęstutis Urbaitis