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On publishing the Planning Scheme of Trakai Historical National Park

Case No. 23/2007-38/2009

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 912 “ON APPROVING THE PLANNING SCHEME OF TRAKAI HISTORICAL NATIONAL PARK” OF 6 DECEMBER 1993 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

9 February 2010
Vilnius

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

with the secretary of the hearing—Daiva Pitrėnaitė,

in the presence of the representatives of the Government of the Republic of Lithuania, the party concerned, who were Agnė Murauskaitė, Head of the Law Application Division of the Legal Department of the Ministry of Environment of the Republic of Lithuania, and Eglė Izokaitytė, the chief specialist of the said division,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing on 5 February 2010 heard case No. 23/2007-38/2009 subsequent to:

1) the petition of the Supreme Administrative Court of Lithuania, a petitioner, requesting to investigate whether Resolution of the Government of the Republic of Lithuania No. 912 “On Approving the Planning Scheme of Trakai Historical National Park” of 6 December 1993 is not in conflict with Paragraph 2 of Article 7 of the Constitution of the Republic of Lithuania, the constitutional principle of a state under the rule of law, Article 2, Item 4 of Paragraph 1 of Article 3 and Paragraph 1 of Article 9 of the Republic of Lithuania Law on the Procedure of Publication and Coming into Force of Laws and Other Legal Acts (wording of 7 July 2005), as well as whether the same resolution of the Government of the Republic of Lithuania was not in conflict with Paragraph 1 of Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph 1 of Article 8 of the Republic of Lithuania Law “On the Procedure of Publication and Coming into Force of Republic of Lithuania Laws and Other Legal Acts” (wording of 6 April 1993) (petition No. 1B-25/2007);

2) the petition of the Vilnius Regional Administrative Court, a petitioner, requesting to investigate whether Resolution of the Government of the Republic of Lithuania No. 912 “On Approving the Planning Scheme of Trakai Historical National Park” of 6 December 1993 according to the procedure of its publishing is not in conflict with Paragraph 2 of Article 7 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-50/2009).

By the Constitutional Court Decision “On Joining Petitions into One Case” of 23 December 2009, petition No. 1B-25/2007 (case No. 23/07) of the Supreme Administrative Court of Lithuania and petition No. 1B-50/2009 (case No. 38/2009) of the Vilnius Regional Administrative Court were joined into one case and it was given reference No. 23/2007-38/2009.

The Constitutional Court

has established:

I

1. The Supreme Administrative Court of Lithuania, a petitioner, was investigating an administrative case. By its ruling of 26 April 2007, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Government Resolution of No. 912 “On Approving the Planning Scheme of Trakai Historical National Park” of 6 December 1993 (hereinafter also referred to as Government resolution No. 912 of 6 December 1993) is not in conflict with Paragraph 2 of Article 7 of the Constitution, the constitutional principle of a state under the rule of law, Article 2, Item 4 of Paragraph 1 of Article 3 and Paragraph 1 of Article 9 of the Law on the Procedure of Publication and Coming into Force of Laws and Other Legal Acts (wording of 7 July 2005), as well as whether the same Government resolution was not in conflict with Paragraph 1 of Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph 1 of Article 8 of the Law “On the Procedure of Publication and Coming into Force of Republic of Lithuania Laws and Other Legal Acts” (wording of 6 April 1993) (petition No. 1B-25/2007).

2. The Vilnius Regional Administrative Court, the petitioner, was investigating an administrative case. By its ruling of 7 October 2009, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition requesting to investigate whether Government Resolution No. 912 “On Approving the Planning Scheme of Trakai Historical National Park” of 6 December 1993 according to the procedure of its publishing is not in conflict with Paragraph 2 of Article 7 of the Constitution and the constitutional principle of a state under the rule of law (petition No. 1B-50/2009).

II

The petitions of the Supreme Administrative Court of Lithuania and the Vilnius Regional Administrative Court, the petitioners, are substantiated by the following arguments.

Government resolution No. 912 of 6 December 1993 approved the Planning Scheme of Trakai Historical National Park, which is composed of the plan of the park territory with its functional zones and the explanatory note. Subsequent to Order of the Republic of Lithuania Ministry of Construction and Urban Planning No. 212 “On Publishing the Planning Scheme of Trakai Historical National Park” of 20 December 1993, not entire said scheme was published in the official gazette “Valstybės žinios”: a part of this scheme—the plan of the territory of the park with the functional zones—has not been announced publicly. The said order of the Ministry of Construction and Urban Planning only specified that it was possible to become familiarised with this plan at the Ministry of Ministry of Construction and Urban Planning, at the Board of the Trakai District and at the Directorate of Trakai Historical National Park.

The Constitutional Court has held that all parts of a normative legal act (including its appendices) constitute a whole, they are inseparably interrelated and have equal legal power; that it is impossible to separate the appendices form the legal act, since when the legal regulation established in the appendices is amended, then the entire content of the established legal regulation is changed as well. The plan of the territory of Trakai Historical National Park with the functional zones is an inseparable part of the planning scheme of Trakai Historical National Park, however, it has not been published in the official gazette “Valstybės žinios”, which is the official source of publishing legal acts.

III

In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from A. Murauskaitė, Head of the Law Application Division of the Legal Department of the Ministry of Environment, and E. Izokaitytė, the chief specialist of the same division, wherein it was noted that the fact that the territories of the park with the functional zones, which are a constituent part of the Planning Scheme of Trakai Historical National Park (hereinafter also referred to as the Scheme), was not published in the official gazette “Valstybės žinios”, the official source of publishing legal acts, does not give grounds to assert that the requirements for publishing legal acts as entrenched in the Constitution were violated. The position of the representative of the party concerned is substantiated by these arguments.

1. The legislator has been granted the right, while taking account of the specificity of certain legal acts, to establish a separate source and way of the publication of such legal acts, if such legal regulation has to secure the requirements (which are entrenched in the Constitution) of formality and publicity of publishing legal acts, the constitutional requirement the legal act be published in its entirety (including all its constituent parts) and that legal acts be published in the state language—Lithuanian. While invoking the provisions of the Constitutional Court ruling of 27 June 2007, one can draw a conclusion that at the time of approving the Planning Scheme of Trakai Historical National Park there were no technical possibilities to publish the coloured scheme made from cardboard (4 mm in thickness), whose measures were 1.6 m x 1.6 m (the scale of the main drawing of the graphical part of the Scheme was 1 : 10 000) in the official gazette “Valstybės žinios” (the only official source of publishing legal acts) so that the legal subjects could decipher it and understand its content. Thus, in the situation of publishing the disputed document of territorial planning, the way of publishing legal acts as established in the Law on the Procedure of Publication and Coming into Force of Laws and Other Legal Acts did not secure the adherence to the requirements for publishing legal acts as entrenched in the Constitution. The non-publishing of the plan of the territory of Trakai Historical National Park with its functional zones in the official source of publishing legal acts was constitutionally justifiable and was in line with all the conditions specified in the Constitutional Court ruling of 27 June 2007: it was announced in the official (regular) source of publishing legal acts that by its resolution the Government approved the Planning Scheme of Trakai Historical National Park; it is clear from the published legal act that the plan of the territory of Trakai Historical National Park with its functional zones was not published in the said source; it was specified where it was possible to familiarise oneself with the non-published constituent part of the legal act; the access for the legal subjects to the corresponding legal regulation is secured in practice.

2. The Planning Scheme of Trakai Historical National Park approved by disputed Government resolution No. 912 of 6 December 1993 is a special document of territorial planning with regard to which the legislator, while taking account of the specific content and extent of documents of territorial planning, had established a separate procedure for its publishing and entry into force, which secured the execution of publicity, formality of legal acts and other requirements entrenched in the Constitution. The Planning Scheme of Trakai Historical National Park had been prepared and approved before the Republic of Lithuania Law on Territorial Planning came into force. Upon coming into force of the Law on Territorial Planning, the question of the legal status of the Scheme was decided by Government of the Republic of Lithuania Resolution No. 617 “On Application of the Republic of Lithuania Law on Territorial Planning to the Approved Territorial Planning Documents the Preparation of Which was Begun and not Finished Before Coming into Force of this Law” of 24 May 1996 (hereinafter also referred to as Government resolution No. 617 of 24 May 1996), under Item 1 of which, the general plans, detailed plans and projects and regeneration projects and schemes of towns (or parts thereof), towns and villages (rural districts), projects and schemes of the arrangement of communication and engineering infrastructure networks and objects, projects and schemes of territorial development, projects and schemes of lot marking and red lines, planning schemes of state parks, land use planning and forestry projects and other documents which provide for the conditions of land use of the territories and development of the activity in them, the rights and obligations of land users are territorial planning documents, if they had been approved under the established procedure before coming into force of the Law on Territorial Planning. The said plans had to be registered at the state register of territorial planning documents. The Planning Scheme of Trakai Historical National Park was registered at the state register of the territorial planning documents as a special document of territorial planning, therefore, both under the Law on Territorial Planning and the Regulations for the Register of Territorial Planning Documents, all persons were able to familiarise themselves with this territorial planning document and receive all information concerning it.

3. The striving of the legislator for establishing a separate procedure for publishing of documents of territorial planning and their entry into force, which would secure the publicity of publishing legal acts and other requirements entrenched in the Constitution, is also shown by the fact that in the course of changing the Law on Territorial Planning a special procedure was established in order to secure publicity of publishing territorial planning documents (Law on Territorial Planning, wording of 7 February 2004) whereby the legislator did not demand that a document of territorial planning be published in the official source of publishing legal acts, whereas the publicity of its publishing, under the legal regulation established in the Law on Territorial Planning, had to be secured by applying special procedures of participation of the public in the process of drafting the documents of territorial planning, by entering such a document into the register of documents of territorial planning and by securing the right of all persons to familiarise with it.

4. Realistic opportunities were created to all persons to familiarise with the part of the legal act which had not been published in the official gazette “Valstybės žinios”: the Scheme was registered in the register of territorial planning documents, it was possible to familiarise with the plan at the Ministry of Environment (at present—at the State Service for Protected Areas under the Ministry of Environment), at the Trakai District Municipality and the Directorate of Trakai Historical National Park. A copy of the plan is also kept at the Ministry of Culture of the Republic of Lithuania, whereas the electronic version of the Scheme is available at the webpage of the Directorate of Trakai Historical National Park (www.seniejitrakai.lt).

IV

In the course of the preparation of the case for the Constitutional Court hearing the following was received:

Letter of the Environment Protection Agency No. (15)-A4-237 “Regarding the Information in Case No. 23/07” of 11 February 2008 giving the information that the Planning Scheme of Trakai Historical National Park approved by Government resolution No. 912 of 6 December 1993 was registered in the register of territorial planning documents and that, according to the register of territorial planning documents, the original copy of the said scheme is kept by the Government, while a copy of the scheme—at the State Service for Protected Areas under the Ministry of Environment. Together with this letter an extract of the register of territorial planning documents was sent, confirming the information given in the letter.

Letter of the Directorate of Trakai Historical National Park No. S-103 “Regarding the Information in Case No. 23/07” of 12 February 2008 in which it is indicated that one of original copies of the Planning Scheme of Trakai Historical National Park is kept at the Directorate of Trakai Historical National Park. It is also explained therein that the main drawing of the graphical part of the said scheme is made from cardboard which is 4 mm in thickness; the Scheme is composed of four parts, each of which is 0.8 x 0.8 m in size; the entire size of the Scheme is 1.6 x 1.6 m; the scale of the Scheme is 1 : 10 000; the Scheme is in colour. It is asserted in the letter that one is able to familiarise with an original copy of the Planning Scheme of Trakai Historical National Park also at the Ministry of Environment and at the Trakai District Municipality, whereas the electronic version of the Scheme is available at the webpage of the Directorate of Trakai Historical National Park (www.seniejitrakai.lt).

Letter of the Administration of the Trakai District Municipality No. AP3-752 “Regarding the Information in Case No. 23/07” of 21 February 2008 wherein it is asserted that the Planning Scheme of Trakai Historical National Park (either the original, or a copy thereof) was not submitted to the Trakai District Municipality and that the said scheme was never available at the Trakai District Municipality and is not kept there.

Letter of the Directorate of Trakai Historical National Park No. S-194 “Regarding Submission of Additional Information” of 29 February 2008 wherein it is specified that the electronic version of the Planning Scheme of Trakai Historical National Park has been available at the webpage of the Directorate of Trakai Historical National Park (www.seniejitrakai.lt) since December 2003. The Directorate of Trakai Historical National Park also indicated that the Administration of the Trakai District Municipality, when it submits requests to the Directorate of Trakai Historical National Park regarding preparation of a digest of conditions for projecting and planning, also submits extracts of the Planning Scheme of Trakai Historical National Park. In addition, the Administration of the Trakai District Municipality, while executing the requirements of Article 28 of the Law on Territorial Planning, has registered the Planning Scheme of Trakai Historical National Park at the register of territorial planning documents, number 110792000003.

Letter of the Service of the Prime Minister of the Republic of Lithuania No. 8-78/12 “Regarding Submission of Information” of 31 December 2009 whereby copies of documents of drafting Government resolution No. 912 of 6 December 1993 were submitted.

Letter of the Ministry of Culture No. S2-59 “Regarding the Planning Scheme of Trakai Historical National Park” of 13 January 2010 wherein it is asserted that since 2000 when the functions of the founder of Trakai Historical National Park were transferred to the Ministry of Culture, a copy of the drawing of the Planning Scheme of Trakai Historical National Park has been kept at the Ministry of Culture (since September 2004—at the Division of Protected Territories and Protection of Heritage) and all those willing were able to familiarise with the Scheme freely during the working hours of the ministry. The copy of the drawing of the Planning Scheme of Trakai Historical National Park kept at the Ministry of Culture is composed of 4 sheets whose size is 870 x 817 mm.

Letter of the State Service for Protected Areas under the Ministry of Environment No. V3 2.8.-71 “Regarding Submission of Information” of 15 January 2010 wherein it is indicated that the State Service for Protected Areas under the Ministry of Environment was founded on 1 January 2002 upon reorganisation of the Department for Forests and Protected Territories and that there is a diminished copy of the Planning Scheme of Trakai Historical National Park in colour, whereas the said department used to keep such a copy.

V

At the Constitutional Court hearing, A. Murauskaitė and E. Izokaitytė, the representatives of the Government, the party concerned, virtually reiterated the arguments set forth in their written explanations and submitted additional explanations.

1. The representatives of the Government maintained that the Planning Scheme of Trakai Historical National Park is displayed in public at the Directorate of Trakai Historical National Park, all persons who wish to familiarise with the said scheme have an opportunity to do so, the plan’s copies in colour and in black-and-white as well as digital extracts of the Scheme are made.

2. As regards the keeping of the Planning Scheme of Trakai Historical National Park at the Trakai District Municipality, the representatives of the Government submitted information whereby the Trakai District Municipality submits extracts of the Scheme to the interested institutions. The representatives of the Government also maintained that in administrative cases, inter alia in case A11 – 215/2007 of the Supreme Administrative Court of Lithuania, the Trakai District Municipality refers to the Scheme, therefore, it is to be presumed that the Trakai District Municipality holds the Planning Scheme of Trakai Historical National Park.

The Constitutional Court

holds that:

I

1. In the constitutional justice case at issue one disputes the compliance of the Government resolution, whereby the Planning Scheme of Trakai Historical National Park was approved, with the Constitution and with corresponding articles (parts thereof) of the Law “On the Procedure of Publication and Coming into Force of Republic of Lithuania Laws and Other Legal Acts” (wording of 6 April 1993 with subsequent amendments and supplements), which, as from 1 January 2003, is titled as the Law on the Procedure of Publication and Coming into Force of Laws and Other Legal Acts.

2. On 23 April 1991, the Supreme Council of the Republic of Lithuania adopted Resolution No. I-1244 “On Establishing of Dzūkija, Curonian Spit and Žemaitija National Parks, Trakai Historical National Park and Viešvilė State Nature Reserve” which came into force on 1 May 1991. The said resolution, while seeking “to preserve the most valuable Lithuanian landscape complexes and ethno-cultural heritage for the people of Lithuania and for the future generations”, inter alia established: “To establish the national parks and the state reserve (according to the prepared schemes) which are provided for in the Complex Nature Protection Scheme of the Republic of Lithuania: <…> Trakai Historical National Park—area of 8 thousand ha” (Sub-item 4 of Item 1); “To commission the Government of the Republic of Lithuania, upon submission of the Department of Environmental Protection of the Republic of Lithuania and the Inspectorate of Cultural Heritage <…> before 1 November 1991 to approve <…> the Regulations for Trakai Historical National Park <…>” (Sub-item 1 of Item 2).

3. On 22 April 1992, the Government adopted Resolution No. 283 “On Approving the Provisional Regulations for Dzūkija, Curonian Spit and Žemaitija National Parks and Trakai Historical National Park and the Regulations for Viešvilė State Nature Reserve”, Item 1 of which approved inter alia the Provisional Regulations for Trakai Historical National Park. This Government resolution came into force on 22 April 1992.

Section 3 of Item 2 of the said provisional regulations (wording of 22 April 1992) prescribed: “The territory of Trakai Historical National Park shall be managed under the planning scheme of this park approved by the Government and the projects (prepared on the basis of this scheme and co-ordinated under established procedure) concerning land management, forest management, water management, settlements’ planning, regeneration of villages, recreation, roads and engineering communications as well as other projects.”

4. On 6 December 1993, the Government adopted Resolution No. 912 “On Approving the Planning Scheme of Trakai Historical National Park” whose compliance with the Constitution and with corresponding articles (parts thereof) of the Law “On the Procedure of Publication and Coming into Force of Republic of Lithuania Laws and Other Legal Acts” (wording of 6 April 1993 with subsequent amendments and supplements) (which, as from 1 January 2003, is titled as the Law on the Procedure of Publication and Coming into Force of Laws and Other Legal Acts) is disputed in the constitutional justice case at issue. This Government resolution came into force on 11 December 1993.

4.1. Government resolution No. 912 of 6 December 1993 (wording of 6 December 1993) prescribed:

The Government of the Republic of Lithuania shall resolve:

1. To approve the Planning Scheme of Trakai Historical National Park (the plan of the park territory with its functional zones and the explanatory note) submitted by the Department for Monument Maintenance under the Ministry of Construction and Urban Planning.

2. To commission the State Institute for Land Management to mark the limits of the zones of Trakai Historical National Park in the plans of land utilisation and in the plans of land management in the land reform, as well as to compute the area of these zones.”

4.2. This Government resolution approved the Planning Scheme of Trakai Historical National Park, which is composed of the plan of the territory of the park with the functional zones (the graphical part of the Scheme) and the explanatory note (the textual part of the Scheme).

On 10 December 1993, only the Government resolution was published in the official gazette “Valstybės žinios”, whereas the annexes approved by the said resolution were not printed.

On 4 February 1994, Order of the Ministry of Construction and Urban Planning No. 212 “On Publishing the Planning Scheme of Trakai Historical National Park” of 20 December 1993 was published in the official gazette “Valstybės žinios”, wherein it was established: “To publish the Planning Scheme of Trakai Historical National Park (the plan of the park territory with its functional zones and the explanatory note) approved by Government Resolution No. 912 ‘On Approving the Planning Scheme of Trakai Historical National Park’ of 6 December 1993.”

The said order contained the following remark: “The plan shall not be published. It is possible to familiarise with it at the Ministry of Ministry of Construction and Urban Planning, at the Board of the Trakai District and at the Directorate of Trakai Historical National Park.”

Thus, the graphical part of the Scheme (the plan of the territory of the park with the functional zones) was not printed, and only the textual part of the Scheme titled “The Planning Scheme of Trakai Historical National Park” was published.

In this textual part of the Scheme the purposes of the founding of this park as well as the structure of the Scheme and its role in the legal regulation of the management of Trakai Historical National Park are explained, the general principles of planning and managing Trakai Historical National Park are established, the zones of the park, the purposes of their establishment, the utilisation and management as well as development of these zones are defined, as well as the detail programme (chart) of the most important projecting work for 1994-1997 necessary in order to carry out the tasks and implement concrete measures of Trakai Historical National Park is presented.

5. On 4 April 2000, the Government adopted Resolution No. 388 “On Approving the Regulations for Trakai Historical National Park” which came into force on 13 April 2000. By Item 1 of this Government resolution the Regulations for Trakai Historical National Park were approved, whereas by Item 5 of the same resolution Government Resolution No. 283 “On Approving the Provisional Regulations for Trakai Historic National Park” (Item 5.1) and Government Resolution No. 239 “On Partial Amendment of the Provisional Regulations for Trakai Historical National Park” of 13 February 1995 (Item 5.2) were recognised as no longer valid.

Item 3 of the Regulations for Trakai Historical National Park prescribed that the territory of the national park shall be protected, managed and utilised in pursuance with the planning scheme approved by Government resolution No. 912 of 6 December 1993, and with the territorial planning documents prepared on the basis of this scheme and co-ordinated and approved under established procedure.

6. On 28 May 2002, the Government adopted Resolution No. 760 “On Granting the Right of Land Possession to the Directorate of Trakai Historical National Park and on Amending Resolution of the Government of the Republic of Lithuania No. 912 of 6 December 1993 and Resolution of the Government of the Republic of Lithuania No. 69 of 11 January 1996”, which came into force on 1 June 2002. This Government resolution inter alia granted the right to the Directorate of Trakai Historical National Park to possess a 78.65-hectare land plot in the territory of the homestead of the former Užtrakis manor (Item 1) and correspondingly amended Sub-item 2.3 of Item 2 “Sanctuaries” of Section I “The Conservation Zone” of the Chapter “The Zones of Trakai Historical National Park” of the Scheme (Item 2).

On 21 October 2004, the Government adopted Resolution No. 1323 “On Amending Resolution of the Government of the Republic of Lithuania No. 912 ‘On Approving the Planning Scheme of Trakai Historical National Park’ of 6 December 1993”, which came into force on 27 October 2004. By this resolution the Scheme was partially amended and supplemented: Item 3 of Section III “The Recreation Zone” of the Chapter “The Zones of Trakai Historical National Park” was amended—it was provided to create new recreation zones, whereas Annex 3 “Establishments of Rest and Utilisation Thereof” of the Scheme was supplemented with the Chart “New Establishments of Rest under Construction in the Territory of Trakai Historical National Park”.

7. On 31 March 1992 (when the accession document was deposited with the Director-General of the United Nations Educational, Scientific and Cultural Organisation (UNESCO)), the Republic of Lithuania joined the Convention Concerning the Protection of the World Cultural and Natural Heritage (hereinafter referred to as the Convention) which was adopted on 16 November 1972 in Paris. In the Republic of Lithuania the Convention came into force on 30 June 1992. Joining to the Convention, the Republic of Lithuania took the obligation to protect the cultural and natural heritage on its territory and acquired the right to propose that properties in its territory be inscribed in the UNESCO World Heritage List.

In 2002, UNESCO experts, while in Lithuania, paid attention to the properties of Trakai Historical National Park, which received their favourable evaluation, and recommended to prepare for the nomination of this Lithuanian object for the UNESCO World Heritage List. At the Conference “The Trakai Historical National Park—on the UNESCO World Heritage Lists—the Need and Opportunities” held on 3-4 April 2003 in Lithuania a resolution was adopted wherein it was inter alia held that “Taking into consideration the exclusive comprehensive value of landscape, the Trakai Historical National Park could be nominated to the World Heritage List of Mixed Properties” and it was decided to ask “the Ministry of Culture to approve the inscription of the Trakai Historical National Park in World Heritage List of Mixed Properties, to approve by an order a working group and delegate it with a task of preparing within the established terms the submission of the Trakai Historical National Park to the World Heritage Committee and allocate funds, necessary for this purpose”.

On 28 July 2003, upon submission by the Ministry of Culture of the Republic of Lithuania, Trakai Historical National Park was included into the tentative list of the UNESCO World Heritage List (category of properties—mixed).

8. Thus, the State of Lithuania has treated and treats Trakai and its environs as a unique complex of landscape created by nature and man, as a territory, which must be protected and with whose regard a special legal regime must be created; this is a universally known fact.

9. In the context of the constitutional justice case at issue it also needs to be emphasised that, as mentioned, a principled provision was entrenched in the Regulations for Trakai Historical National Park approved by Government Resolution No. 388 “On Approving the Regulations for Trakai Historical National Park” of 4 April 2000 whereby Trakai Historical National Park is managed in pursuance with the planning scheme of Trakai Historical National Park, which is approved by the Government.

Thus, any decisions related to administering the territory of Trakai Historical National Park (inter alia with detailed plans of settlements, forest management, land management, water management, regeneration of villages, recreation, roads and engineering communications etc.) could not (and cannot) be adopted without taking account of the said Scheme approved by the Government and could not (and cannot) be in conflict with solutions of the Scheme. If one disregarded these solutions, especially being aware of the fact that the State of Lithuania treats Trakai and its environs as a unique complex of landscape created by nature and man, as a territory, which must be protected and with whose regard a special legal regime must be created, and that this is a universally known fact, then the general principle of law bona fides would be disregarded as well.

Otherwise, not only the identity and integrity of Trakai Historical National Park as a unique complex of landscape created by nature and man, as a territory, which must be protected, would be violated, but also the imperatives of Articles 53 and 54 of the Constitution, inter alia the provision of Paragraph 1 of Article 54 of the Constitution that the state shall take care of the protection of the natural environment, wildlife and plants, individual objects of nature and areas of particular value and shall supervise a sustainable use of natural resources, their restoration and increase, and the provision of Paragraph 3 of Article 53 thereof that the state and each person must protect the environment from harmful influences, would be breached.

10. On the other hand, the requirement arising from the Constitution to preserve Trakai Historical National Park does not mean that institutions of the State of Lithuania are allowed to disregard the provisions of the Constitution, inter alia the constitutional concept of official and public publishing of legal acts, when these institution regulate, by means of legal acts and within their competence, the relations related to administering the territory of Trakai Historical National Park (inter alia with detailed plans of settlements, forest management, land management, water management, regeneration of villages, recreation, roads and engineering communications etc.).

II

1. It has been mentioned that in this constitutional justice case one disputes the compliance of Government resolution No. 912 of 6 December 1993, whereby the Planning Scheme of Trakai Historical National Park was approved, with Paragraph 2 of Article 7 of the Constitution and with the constitutional principle of a state under the rule of law according to the procedure of publishing of the said resolution, i.e. one disputes not content of the said Government resolution and that of the Scheme approved by the said resolution, but the fact that not the entire Scheme was published in the official gazette “Valstybės žinios” (the graphical part of the Scheme was not published therein).

2. It needs to be noted that, on 27 June 2007, the Constitutional Court adopted the Ruling “On the compliance of the Republic of Lithuania Law ‘On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania’ (wording of 6 April 1993) and Government of the Republic of Lithuania Resolution No. 1269 ‘On the Planning Scheme (General Plan) of Curonian Spit National Park’ of 19 December 1994 (wording of 19 December 1994) with the Constitution of the Republic of Lithuania”.

In the said constitutional justice case the Constitutional Court recognised that the Republic of Lithuania Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993) (Official Gazette Valstybės žinios, 1993, No. 12-296), to the extent that it did not establish that the legal acts (parts thereof) of especially large size and complex structure, inter alia such which include graphic parts of especially large size, regarding the publication of which very big technical problems would appear, could officially be published not in the official gazette “Valstybės žinios”, but in other sources and/or in other ways, as well as to the extent that it did not establish that the said legal acts (parts thereof) of especially large size and complex structure, even if it is required to officially announce them in the official gazette “Valstybės žinios”, could be officially published in special editions of the official gazette “Valstybės žinios”, was in conflict with Paragraph 2 of Article 7 of the Constitution and with the constitutional principle of a state under the rule of law. The Constitutional Court also recognised that Government Resolution No. 1269 “On the Planning Scheme (General Plan) of Curonian Spit National Park” of 19 December 1994 (wording of 19 December 1994) (Official Gazette Valstybės žinios, 1994, No. 99-1977), as regards the procedure of its publishing, was not in conflict with the Constitution.

3. In the constitutional justice case wherein the aforementioned ruling was adopted one decided the issue of the compliance of the Planning Scheme of Curonian Spit National Park, according to the procedure of its publishing, with the Constitution. In the constitutional justice case at issue the compliance of Government Resolution No. 912 “On Approving the Planning Scheme of Trakai Historical National Park” of 6 December 1993 is disputed virtually in the same aspect—that the graphical part of the Scheme was not published in the official gazette “Valstybės žinios”, the official source of publishing legal acts.

4. It has been established in the constitutional justice case at issue that the Scheme is composed not only of the textual part, but also the graphical part (not only written text, but also drawings etc.) which is in colour; the main drawing of the graphical part of the said scheme is made from cardboard which is 4 mm in thickness; each four parts of the Scheme are 80 x 80 cm in size; the entire size of the Scheme is 160 x 160 cm (Letter of the Directorate of Trakai Historical National Park No. S-103 “Regarding the Information in Case No. 23/07” of 12 February 2008). This scheme was approved by the Government resolution in 1993.

Taking account of all this, one is to note that in its format the graphical part of the Planning Scheme of Trakai Historical National Park is similar to the graphical part of the Planning Scheme of Curonian Spit National Park (drawings of the size 51.5 x 226 cm, 51 x 221 cm, 59.5 x 100 cm, 43 x 123 cm, 43 x 161.5 cm, 59.5 x 167 cm, 59.5 x 171 cm, 59 x 189.5 cm, 59 x 207 cm etc.). In addition, as mentioned, the Planning Scheme of Trakai Historical National Park was approved in 1993, i.e. even earlier than the Planning Scheme of Curonian Spit National Park, which was approved by a Government resolution in 1994.

5. Under the Constitution, rulings of the Constitutional Court are final and not subject to appeal, they are obligatory to everyone, whereas under Paragraph 7 of Article 34 of the Law on Constitutional Court, facts which were established by a ruling of the Constitutional Court in one case shall not be proved again in the consideration of other cases.

The factual circumstances established in previous cases of the Constitutional Court are res iudicata; these factual circumstances are not established and proven anew in new cases (Constitutional Court conclusion of 31 March 2004).

The Constitutional Court has held that the legal position of the Constitutional Court (ratio decidendi) in the corresponding constitutional justice cases has the significance of the precedent (Constitutional Court ruling of 22 October 2007).

6. While taking account of the fact that in their format the graphical parts of the planning schemes of Curonian Spit National Park and Trakai Historical National Park are similar, also while taking account of the fact that in both cases the matter of investigation is analogous (the compliance of the Government resolutions whereby the planning schemes of corresponding protected territories were approved with the Constitution, according to the procedure of the adoption of these resolutions), one is to invoke the factual circumstances established in the previous constitutional justice case (regarding the Planning Scheme of Curonian Spit National Park) which are related with the practice and technical possibilities of publishing legal acts and the procedure for informing the public about territorial planning documents. One is also to invoke the conclusions made in the Constitutional Court ruling of 27 June 2007 regarding the then valid legal regulation related to planning of territories, informing the public about the process of planning of territories, the procedure of publishing of legal acts, inter alia territorial planning documents, and the summarised previous and newly formed constitutional doctrine.

7. In the aforesaid constitutional justice case regarding the Planning Scheme of Curonian Spit National Park the Constitutional Court inter alia established these factual circumstances:

in December 1994, at the time when the Planning Scheme of Curonian Spit National Park was approved by the Government, Government resolutions were officially published in the official gazette “Valstybės žinios”, which was printed by the JSC “Spauda”;

in 1994, in Lithuania, it was in general technically possible to print such document as the Planning Scheme (General Plan) of Curonian Spit National Park, however, it would have been difficult inter alia to ensure the integrity of such document;

publishing the Planning Scheme of Curonian Spit National Park namely in the official gazette “Valstybės žinios”, in its entirety (all its constituent parts) in such size, in which the Scheme was approved by the Government, and in such edition and size, in which at that moment the official gazette “Valstybės žinios” was printed, without losing the informational value (clarity, quality, etc.) of the Planning Scheme of Curonian Spit National Park, was virtually impossible at that time (in 1994) and for a long time afterwards due to the lack of technical possibilities;

at that time (i.e. in 1994), the possibilities of computers in Lithuania were especially limited (little memory, slowness, limited network, etc.), thus, it was difficult to provide the users with maps, graphics, pictures, etc. on the Internet; the technical possibilities to prepare such drawings as a digital version of the Planning Scheme of Curonian Spit National Park and to put in on the Internet appeared approximately in 1996-1998; the technical possibilities to replicate such documents in a digital format increased in 1996, when the state land cadastre enterprise purchased a black-and-white scanner and the sufficient technical possibilities appeared in 1998, when the SE Distance Research and Geoinformatics Centre “GIS-Centras” purchased the first colour scanner.

8. In its ruling of 27 June 2007, the Constitutional Court held that in December 1994 and for quite a while afterwards, virtually there were no technical possibilities to publish the Planning Scheme of Curonian Spit National Park namely in the official gazette “Valstybės žinios” (and in such edition and size, in which at that moment the official gazette “Valstybės žinios” was printed and in which, pursuant to the Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993), Government resolutions had to be published officially) in its entirety (all the constituent parts of the said scheme) in such size in which that scheme was approved by the Government, i.e. without losing the information value (clarity, quality, etc.) of the scheme.

9. On the grounds of these circumstances, which are res iudicata in the context of the constitutional justice case at issue, it needs to be held that virtually there were no technical possibilities to publish the Planning Scheme of Trakai Historical National Park (approved in 1993) namely in the official gazette “Valstybės žinios” (and in such edition and size, in which at that moment the official gazette “Valstybės žinios” was printed and in which, pursuant to the Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993), Government resolutions had to be published officially) in its entirety (all the constituent parts of the said scheme) in such size in which that scheme was approved by the Government, i.e. without losing the information value (clarity, quality, etc.) of the scheme.

10. While deciding in the constitutional justice case at issue whether Government Resolution No. 912 “On Approving the Planning Scheme of Trakai Historical National Park” of 6 December 1993 was not in conflict with the Constitution, the following was established:

the original of the Scheme is kept at the Directorate of Trakai Historical National Park, whereas the electronic version of the Scheme has been available at the internet webpage of the Directorate of Trakai Historical National Park (www.seniejitrakai.lt) since December 2003 (Letter of the Directorate of Trakai Historical National No. S-103 “Regarding the Information in Case No. 23/07” of 12 February 2008 and Letter No. S-194 “Regarding Submission of Additional Information” of 29 February 2008);

copies of the Scheme are kept at the Ministry of Culture (Letter of the Ministry of Culture No. S2-59 “Regarding the Planning Scheme of Trakai Historical National Park” of 13 January 2010, explanations of A. Murauskaitė and E. Izokaitytė, the representatives of the party concerned) and at the State Service for Protected Areas under the Ministry of Environment; the Scheme is registered in the register of territorial planning documents (Letter of the Environment Protection Agency No. (15)-A4-237 “Regarding the Information in Case No. 23/07” of 11 February 2008 together with an extract of the register of territorial planning documents, Letter of the State Service for Protected Areas under the Ministry of Environment No. V3 2.8.-71 “Regarding Submission of Information” of 15 January 2010);

it is possible to familiarise with the plan of the territory of Trakai Historical National Park with its functional zones (or a copy thereof) at the Directorate of Trakai Historical National Park, at the Ministry of Culture, at the Ministry of Environment (at present—at the State Service for Protected Areas under the Ministry of Environment), whereas the electronic version of the Scheme is available at the internet webpage of the Directorate of Trakai Historical National Park (www.seniejitrakai.lt) (explanations of A. Murauskaitė and E. Izokaitytė, the representatives of the party concerned, Letter of the Ministry of Culture No. S2-59 “Regarding the Planning Scheme of Trakai Historical National Park” of 13 January 2010); the Planning Scheme of Trakai Historical National Park is displayed in public at the Directorate of Trakai Historical National Park, all persons who wish to familiarise with the said scheme have an opportunity to do so, the plan’s copies in colour and in black-and-white as well as digital extracts of the Scheme are made (explanations of A. Murauskaitė and E. Izokaitytė, the representatives of the party concerned, at the judicial hearing).

11. It is asserted in Letter of the Administration of the Trakai District Municipality No. AP3-752 “Regarding the Information in Case No. 23/07” of 21 February 2008 that the Scheme has never been available at the Trakai District Municipality and is not kept there. At the time of the consideration of the case, it was established that the Trakai District Municipality submits extracts of the Scheme to the interested institutions, and that in administrative cases, inter alia in case A11 – 215/2007 of the Supreme Administrative Court of Lithuania, the Trakai District Municipality refers to the Scheme (explanations of A. Murauskaitė and E. Izokaitytė, the representatives of the party concerned, at the judicial hearing).

12. In the constitutional justice case at issue it has also been established that in the course of issuance of conditions for detailed planning at Trakai Historical National Park one always refers to the Scheme, that the Administration of the Trakai District Municipality, when it submits requests to the Directorate of Trakai Historical National Park and the Vilnius Region Environment Protection Department regarding conditions for preparation of planning documents, also submits extracts of the graphical part of the Planning Scheme of Trakai Historical National Park and indicates this in the description of annexes to the requests (Letter of the Directorate of Trakai Historical National Park No. S-194 “Regarding Submission of Additional Information” of 29 February 2008 and Letter of the Ministry of Environment No. (16-1)-D8-265 “Regarding Submission of Information” of 11 January 2010 with attached copies of requests of the Administration of the Trakai District Municipality regarding the conditions for preparation of planning documents and copies of extracts of the graphical part of the Scheme). It was not found that in the course of issuing conditions for detailed planning (at Trakai Historical National Park) there were any legal disputes as regards the accessibility of the Scheme to legal subjects or as regards the authenticity of the content of the Scheme.

Thus, even though not the entire Scheme was published in the official gazette “Valstybės žinios” (only the textual part thereof was published in the official gazette “Valstybės žinios”), it has been recognised that the Scheme is valid in its entirety, the original (copies) of this Scheme has (have) been kept at respective institutions, it has been accessible for familiarisation, in case it was necessary copies and extracts of the Scheme were made, the Scheme has been used in the course of preparation of planning documents.

III

1. As mentioned, in the constitutional justice case at issue it is requested to investigate the compliance of the way how Government resolution No. 912 of 6 December 1993 (part thereof) was published, but not what was established in this Government resolution, with the Constitution, namely with Paragraph 2 of Article 7 thereof which provides that only laws which are published shall be valid, and with the constitutional principle of a state under the rule of law.

2. In its ruling of 27 June 2007, while deciding an analogous constitutional dispute (regarding the Planning Scheme of Curonian Spit National Park), the Constitutional Court held:

laws are not valid and may not be applied unless they are officially promulgated; the law must establish the procedure of publication of the laws and the source of information in which the laws must be published; the official publication of laws in pursuance with the procedure established in the Constitution and laws is a necessary condition so that laws be valid and that subjects of legal relations should know as to what laws are valid, what their content is, and that they might follow these laws; there may not be not published laws in a democratic state under the rule of law; laws must be published publicly;

under the Constitution, the legal acts must be officially published following the procedure of their official publishing, which is established namely at the moment when they are issued;

taking account of the constitutional requirement that law may not be non-public, the notion “laws” which is employed in Paragraph 2 of Article 7 of the Constitution should not be construed only literally—it should be construed in an expanding manner, as a notion that includes not only legal acts, which have the power of the law, but also other legal acts;

Government resolutions, as well as other legal acts, may differ according to the form, contents, structure, size, may have various constituent parts (annexes); the legal act may include not only the textual, but also graphical parts (tables, drawings, schemes, plans, cartograms, symbols, emblems, etc.); all parts of a normative legal act (as well as annexes) constitute a whole, they are inseparably connected and have equal legal power; the annexes may not be separated from a legal act because, upon changing the legal regulation established therein, the entire content of the legal regulation established in the legal act is changed; the whole legal act with all its constituent parts must be published;

the official public publishing of the whole legal act is not an end in itself—it is necessary so that the subjects of law would know what the corresponding legal act is, would be able to familiarize themselves with the whole legal act and to follow it; the legislator must establish by the law such legal regulation related to the official publishing of the legal acts that the legal acts would be accessible for all subjects of law; while doing so, the legislator has broad discretion: upon taking account of the contents, peculiarities and variety of the legal acts, as well as other circumstances, he may establish various sources and ways of official publishing of the legal acts; while establishing the sources and ways of the official publishing of legal acts, the legislator has to take account of the technical possibilities to publish the legal acts in a certain way; the fast technological development determines the dynamism of the legal acts regulating corresponding social relations, electronic communications and telecommunications are undergoing fast development, the opportunities to seek, obtain and disseminate information by making use of electronic information technologies, inter alia the Internet, are constantly expanding, therefore, it is necessary that legislation not get behind with the progress of information technologies and with changes in respective social relations which are determined by such progress; these provisions are mutatis mutandis applicable also to the publishing of legal acts;

in the cases when legal acts include not only the textual (written), but also the graphical (drawings, etc.) parts, especially if these legal acts are of large size and complex structure and there appear big technical problems regarding the publication of their graphical part (printing, replicating) (as well as if the expenses of its publication (printing, replicating) are groundlessly big (taking account of the financial capabilities of the state, as well as of the fact to what circle of subjects of law the legal regulation establishes the rights and duties)), one may establish by the law such procedure of official publishing of these legal acts which differs from the general (usual) official procedure of publishing of the legal acts which are composed only of the written text; in itself, the Constitution does not prohibit it; the law may establish that the graphical part (or certain parts thereof) of such legal acts shall be officially published separately from the textual part (in a different source), as well as that the graphical part (or certain parts thereof) shall be officially published in a different way than the textual part;

also in the cases when the graphical part of the legal act is published separately from the textual part (in a different source) and/or in a different way than the textual part, one must follow the requirements of publicity and formality of publishing of the legal acts which stem from the Constitution, as well as one must ensure that due to the separate publication of the textual and the graphical part of the legal acts, no preconditions would appear to question the authenticity of their contents: first of all, it is necessary that by following the general (usual) procedure of official publishing of the legal acts in the corresponding source one would announce that the corresponding legislative decision has been adopted regarding a certain question; second, it should be clear from the legal acts published in this source that a certain constituent part (constituent parts) of this legal act has (have) not been published therein; third, it should be clear where one can familiarize himself with the constituent part (constituent parts) of the legal act, which was (were) not published in the said source; and, fourth, one should ensure in practice the accessibility of the corresponding part of the legal act (thus, also all the legal act as a whole) to the subjects of law, moreover, no grounded doubts regarding the authenticity of the contents of the constituent part (constituent parts) of the legal act which was (were) not published in the said source should arise for those subjects of law; if these conditions are followed, and, certainly, if the non-publishing of a certain constituent part (constituent parts) of the legal act may be constitutionally grounded, in itself there will be no grounds to state that a certain legal act is “non-published” or that it is “published” not publicly, not officially, i.e. not meeting the requirements of Paragraph 2 of Article 7 of the Constitution, and not heeding the constitutional principle of a state under the rule of law; such ensuring (in the specified cases) of the possibilities to familiarize oneself with the contents of the constituent part (constituent parts) of the legal act which was (were) not published in the said source, thus, also of all the legal act as a whole, if there are enough solid reasons for that, in itself does not give grounds to question the compliance of the corresponding legal act with the Constitution.

IV

On the compliance of Government Resolution No. 912 “On Approving the Planning Scheme of Trakai Historical National Park” of 6 December 1993 with Paragraph 2 of Article 7 of the Constitution, the constitutional principle of a state under the rule of law, Article 2, Item 4 of Paragraph 1 of Article 3 and Paragraph 1 of Article 9 of the Law on the Procedure of Publication and Coming into Force of Laws and Other Legal Acts (wording of 7 July 2005), and with Paragraph 1 of Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph 1 of Article 8 of the Law “On the Procedure of Publication and Coming into Force of Republic of Lithuania Laws and Other Legal Acts” (wording of 6 April 1993).

1. It has been mentioned that in the constitutional justice case at issue one disputes the compliance of Government resolution No. 912 of December 1993, whereby the Planning Scheme of Trakai Historical National Park was approved, inter alia with corresponding articles (parts thereof) of the Law “On the Procedure of Publication and Coming into Force of Republic of Lithuania Laws and Other Legal Acts” (wording of 6 April 1993 with subsequent amendments and supplements), which, as from 1 January 2003, is titled as the Law on the Procedure of Publication and Coming into Force of Laws and Other Legal Acts. One is disputing not something that is established in this Government resolution, i.e. not the content of this Government resolution and that of the Scheme approved by the same resolution, but one is disputing the way of publishing this Government resolution (part thereof), namely that the Scheme, according to the petitioner, was not published in the official gazette “Valstybės žinios”, the official source of publishing legal acts.

2. It has been mentioned that, under the Constitution, the legal acts must be officially published following the procedure of their official publishing, which is established namely at the moment when they are issued.

Therefore, although the Supreme Administrative Court of Lithuania, a petitioner, requests to investigate whether the disputed Government resolution (part thereof) is not in conflict, according to the procedure of its publishing, not only with corresponding articles (parts thereof) of the Law “On the Procedure of Publication and Coming into Force of Republic of Lithuania Laws and Other Legal Acts” (wording of 6 April 1993), but also with corresponding articles (parts thereof) of the Law on the Procedure of Publication and Coming into Force of Laws and Other Legal Acts (this is the title of the Law “On the Procedure of Publication and Coming into Force of Republic of Lithuania Laws and Other Legal Acts” (wording of 6 April 1993 with subsequent amendments and supplements) employed since 1 January 2003)) which are set forth in the wording of 7 July 2005, the Constitutional Court will not investigate whether the disputed Government resolution (part thereof) is not in conflict with the articles (parts thereof) (set forth in the wording of 7 July 2005) of the Law on the Procedure of Publication and Coming into Force of Laws and Other Legal Acts in the constitutional justice case at issue.

3. At the time of the adoption of the disputed Government resolution the Law “On the Procedure of Publication and Coming into Force of Republic of Lithuania Laws and Other Legal Acts” (wording of 6 April 1993) provided for a single official source of publishing Government resolutions—the official gazette “Valstybės žinios”. The Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993) did not include any provisions that the legal acts (parts thereof) of especially large size and complex structure, inter alia such which include graphical parts (drawings, tables, graphs, schemes, maps, etc.) of especially large size, regarding the publication of which very big technical problems would appear, could officially be published not in the official gazette “Valstybės žinios”, but in other sources and/or in other ways. Neither did this law include any provisions that the said legal acts (parts thereof) of especially large size and complex structure, even if it is required to officially announce them in the official gazette “Valstybės žinios”, could be officially published in the special editions of the official gazette “Valstybės žinios”, the circulation of which, taking account of various circumstances, could be smaller than the usual circulation of the official gazette “Valstybės žinios”, and that its size could differ from the usual size of the official gazette “Valstybės žinios”.

3.1. In its ruling of 27 June 2007 the Constitutional Court held that “the non-establishment of such differentiated legal regulation is constitutionally groundless as it does not comply with the concept of the official public publishing of the constitutional legal acts which is enshrined inter alia in Paragraph 2 of Article 7 of the Constitution which, together with the constitutional principle of a state under the rule of law, implies the necessity to establish the differentiated legal regulation of the official publishing of the Government resolutions (and other legal acts)”. It was also held in the same Constitutional Court ruling that the overall legal regulation established in the Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993), in this aspect, was deficient, constitutionally groundless.

3.2. The Constitutional Court ruling of 27 June 2007 recognised that the Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993), to the extent that it did not establish that the legal acts (parts thereof) of especially large size and complex structure, inter alia such which include graphical parts of especially large size, regarding the publication of which very big technical problems would appear, could officially be published not in the official gazette “Valstybės žinios”, but in other sources and/or in other ways, as well as to the extent that it did not establish that the said legal acts (parts thereof) of especially large size and complex structure, even if it is required to officially announce them in the official gazette “Valstybės žinios”, could be officially published in special editions of the official gazette “Valstybės žinios”, was in conflict with Paragraph 2 of Article 7 of the Constitution and with the constitutional principle of a state under the rule of law.

3.2.1. It was noted in the Constitutional Court ruling that namely these provisions of Paragraph 1 of Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph 1 of Article 8 of the Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993) because of which the compliance of Government Resolution No. 1269 “On the Planning Scheme (General Plan) of Curonian Spit National Park” of 19 December 1994 was disputed, reflected the deficiency and constitutional unreasonableness of the overall legal regulation which was established in this law. It was also noted that this statement may not be interpreted as meaning that, purportedly, only the specified provisions of Paragraph 1 of Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph 1 of Article 8 of this law reflected the deficiency and constitutional unreasonableness of the overall legal regulation which is established in the Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993).

3.2.2. Having held that the Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993), to the extent that it did not establish that the legal acts (parts thereof) of especially large size and complex structure, inter alia such which include graphical parts (drawings, tables, graphs, schemes, maps, etc.) of especially large size, regarding the publication of which very big technical problems would appear, could officially be published not in the official gazette “Valstybės žinios”, but in other sources and/or in other ways, as well as to the extent that it did not establish that the said legal acts (parts thereof) of especially large size and complex structure, even if it is required to officially announce them in the official gazette “Valstybės žinios”, could be officially published in the special editions of the official gazette “Valstybės žinios”, the circulation of which, taking account of various circumstances, could be smaller than the usual circulation of the official gazette “Valstybės žinios”, and whose size could differ from the usual size of the official gazette “Valstybės žinios”, was in conflict with Paragraph 2 of Article 7 of the Constitution and with the constitutional principle of a state under the rule of law, as well as upon stating that the provisions of Paragraph 1 of Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph 1 of Article 8 of this law reflected the deficiency and constitutional unreasonableness of the overall legal regulation which is established in the Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993), the Constitutional Court did not investigate whether the said Government resolution was not in conflict with Paragraph 1 of Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph 1 of Article 8 of the Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993).

4. One of essential elements of the constitutional principle of a state under the rule of law is the principle that one should not apply a legal act which is in conflict with a legal act of higher power.

While taking account of the fact that the Constitutional Court ruling of 27 June 2007 recognised that the Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993), to the extent that it did not establish that the legal acts (parts thereof) of especially large size and complex structure, inter alia such which include graphical parts of especially large size, regarding the publication of which very big technical problems would appear, could officially be published not in the official gazette “Valstybės žinios”, but in other sources and/or in other ways, as well as to the extent that it did not establish that the said legal acts (parts thereof) of especially large size and complex structure, even if it is required to officially announce them in the official gazette “Valstybės žinios”, could be officially published in special editions of the official gazette “Valstybės žinios”, was in conflict with Paragraph 2 of Article 7 of the Constitution and with the constitutional principle of a state under the rule of law, it would be meaningless to investigate the compliance of disputed Government resolution No. 912 with Paragraph 1 of Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph 1 of Article 8 of the Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993): if such compliance were investigated, one would make an essentially erroneous presumption that, purportedly, a sub-statutory legal act should be in conformity with an anticonstitutional law. Such a presumption would deny the concept (entrenched in the Constitution) of the hierarchy of legal acts, on top of which is the Constitution; the very essence of constitutional justice would thus be distorted.

Therefore, in the constitutional justice case at issue the Constitutional Court will not investigate whether the disputed Government resolution was not in conflict with Paragraph 1 of Article 1, Item 4 of Paragraph 1 of Article 2 and Paragraph 1 of Article 8 of the Law “On the Procedure of Publication and Coming into Force of Laws and Other Legal Acts of the Republic of Lithuania” (wording of 6 April 1993).

5. While deciding, subsequent to the petitions of the petitioners, in the constitutional justice case at issue whether Government Resolution No. 912 “On Approving the Planning Scheme of Trakai Historical National Park” of 6 December 1993 was not in conflict with Paragraph 2 of Article 7 of the Constitution and the constitutional principle of a state under the rule of law, it needs to be noted that the following was established in the constitutional justice case at issue:

on 10 December 1993, the official gazette “Valstybės žinios” published Government Resolution No. 912 “On Approving the Planning Scheme of Trakai Historical National Park” of 6 December 1993, whereby the Planning Scheme of Trakai Historical National Park was approved;

on 4 February 1994, Order of the Ministry of Construction and Urban Planning No. 212 “On Publishing the Planning Scheme of Trakai Historical National Park” of 20 December 1993, together with the textual part of the Scheme titled “The Planning Scheme of Trakai Historical National Park” was published in the official gazette “Valstybės žinios”, whereas the graphical part of the Scheme (the plan of the park territory with its functional zones) was not published (the following remark was entered: “The plan shall not be published. It is possible to familiarise with it at the Ministry of Ministry of Construction and Urban Planning, at the Board of the Trakai District and at the Directorate of Trakai Historical National Park.”); Thus, the legal subjects were informed in the official gazette “Valstybės žinios”, the official source of publishing legal acts, where it was possible to familiarise with the unpublished graphical part of the Scheme (originals, copies thereof);

the Scheme is of big size, its is composed not only of the textual, but graphical part as well; the main drawing of the graphical part of the said scheme is made from cardboard which is 4 mm in thickness; each four parts of the Scheme are 80 x 80 cm in size; the entire size of the Scheme is 160 x 160 cm;

in the course of issuance of conditions for detailed planning (in Trakai Historical National Park) one has been and is referring to the Scheme;

the Trakai District Municipality submits extracts of the Scheme to the interested institutions, inter alia in case A11 – 215/2007 of the Supreme Administrative Court of Lithuania, the Trakai District Municipality refers to the Scheme;

in the course of issuing conditions for detailed planning (at Trakai Historical National Park) there have not been any legal disputes as regards the accessibility of the Scheme to legal subjects or as regards the authenticity of the content of the Scheme, thus, even though not the entire Scheme was published in the official gazette “Valstybės žinios” (only the textual part thereof was published in the official gazette “Valstybės žinios”), it has been recognised that the Scheme is valid in its entirety;

it is possible to familiarise with the plan (or a copy thereof) of the territory of Trakai Historical National Park with its functional zones at the Directorate of Trakai Historical National Park, the Ministry of Culture, and the Ministry of Environment (at present—at the State Service for Protected Areas under the Ministry of Environment). The Planning Scheme of Trakai Historical National Park is displayed in public at the Directorate of Trakai Historical National Park, all persons who wish to familiarise with the said scheme have an opportunity to do so, the plan’s copies in colour and in black-and-white as well as digital extracts of the Scheme are made. The electronic version of the Scheme is available at the Internet webpage of the Directorate of Trakai Historical National Park (www.seniejitrakai.lt).

6. In addition, as mentioned, in this constitutional justice case one is to invoke the circumstance as res iudicata established in the constitutional justice case regarding the Planning Scheme of Curonian Spit Historical National Park, that publishing the Planning Scheme of Curonian Spit National Park (which, as already held in the constitutional justice case at issue, in its format is similar to the planning scheme of Trakai Historical National Park) namely in the official gazette “Valstybės žinios”, in its entirety (all its constituent parts) in such size, in which the Scheme was approved by the Government, and in such edition and size, in which at that moment the official gazette “Valstybės žinios” was printed, without losing the informational value (clarity, quality, etc.) of the Planning Scheme of Curonian Spit National Park, was virtually impossible at that time (in December 1994) and for a long time afterwards due to the lack of technical possibilities.

While construing this circumstance in the context of the constitutional justice case at issue, it needs to be held that also in 1993, when the Government resolution disputed in this constitutional justice case was adopted, whereby the Planning Scheme of Trakai Historical National Park was approved, publishing the Scheme namely in the official gazette “Valstybės žinios”, in its entirety (all its constituent parts) in such size, in which the Scheme was approved by the Government, and in such edition and size, in which at that moment the official gazette “Valstybės žinios” was printed, without losing the informational value (clarity, quality, etc.) of the Scheme, was virtually impossible due to the lack of technical possibilities.

7. In the said Constitutional Court ruling regarding the Planning Scheme of Curonian Spit Historical National Park it was also noted that the Scheme approved by the disputed Government resolution is a territorial planning document, therefore, while deciding whether the disputed Government resolution was not in conflict with the Constitution, one had to take account not only of the fact how the law, which, as mentioned, by the Constitutional Court ruling of 27 June 2007 was recognised as conflicting with the Constitution, had regulated the relations linked to the official publishing and coming into force of Government resolutions and the time when the disputed Government resolution was adopted (and later), but also of the fact how the preparation, registration, publishing and coming into force of the territorial planning documents had been (were) regulated.

In its ruling of 27 June 2007, while summing up the legal regulation related to the preparation of the territorial planning documents and its development since 1994, the Constitutional Court held: the said legal regulation allowed various persons to participate in consideration of the prepared, but not yet approved, territorial planning documents, natural and legal persons had the right to familiarize themselves with prepared and approved territorial planning documents and to receive copies of the territorial planning documents or parts thereof and copies of the drawings; no obstacles for that were established in legal acts; the persons could find out where the approved territorial planning documents were kept from the register of the territorial planning documents; there was an established procedure of registration of the territorial planning documents, whereby the register of the territorial planning documents had to provide where the original copy and the duplicates of the territorial planning document were kept.

8. In the constitutional justice case at issue one is to take account of the conclusion made in the Constitutional Court ruling regarding the Planning Scheme of Curonian Spit Historical National Park that from the legal acts which regulated the preparation, registration, publishing and coming into force of the territorial planning documents (some of them were issued soon after the said scheme was approved by the Government), it is obvious that it had to be (and it really was) clear for the subjects of law where to familiarize themselves with the said scheme (its original copies and duplicates) which had not been published in the official gazette “Valstybės žinios”.

In this context it needs to be noted that it has been established in the constitutional justice case at issue that legal subjects were informed in the official gazette “Valstybės žinios”, the official source of publishing legal acts, about where they can familiarise with the part of the Scheme that had not been published in the official gazette “Valstybės žinios” (The remark in Order of the Ministry of Construction and Urban Planning No. 212 “On Publishing the Planning Scheme of Trakai Historical National Park” of 20 December 1993: “The plan shall not be published. It is possible to familiarise with it at the Ministry of Ministry of Construction and Urban Planning, at the Board of the Trakai District and at the Directorate of Trakai Historical National Park.”).

9. It has been held in this Constitutional Court ruling that any decisions related to administering the territory of Trakai Historical National Park (inter alia with detailed plans of settlements, forest management, land management, water management, regeneration of villages, recreation, roads and engineering communications etc.) could not (and cannot) be adopted without taking account of the said Scheme approved by the Government and could not (and cannot) be in conflict with solutions of the Scheme. If one disregarded these solutions, especially being aware of the fact that the State of Lithuania treats Trakai and its environs as a unique complex of landscape created by nature and man, as a territory, which must be protected and with whose regard a special legal regime has been created, and that this is a universally known fact, then the general principle of law bona fides would be disregarded as well.

10. Thus because of all the circumstances specified herein, the mere fact that the Planning Scheme of Trakai Historical National Park which was approved by Government Resolution No. 912 “On Approving the Planning Scheme of Trakai Historical National Park” of 6 December 1993 was not published in the official gazette “Valstybės žinios” as a whole, in itself does not give grounds to state that the Scheme was “not published” or “published” not in public and not officially, that the access to it was not ensured for the subjects of law, and that thus the requirements of Paragraph 2 of Article 7 of the Constitution were violated and the constitutional principle of a state under the rule of law was disregarded.

11. Taking account of the arguments set forth, one is to draw a conclusion that Government Resolution No. 912 “On Approving the Planning Scheme of Trakai Historical National Park” of 6 December 1993 (wording of 6 December 1993) according to the procedure of its publishing is not in conflict with Paragraph 2 of Article 7 of the Constitution and the constitutional principle under the rule of law.

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

ruling:

To recognise that Resolution of the Government of the Republic of Lithuania No. 912 “On Approving the Planning Scheme of Trakai Historical National Park” of 6 December 1993 (Official Gazette Valstybės žinios, 1993, No. 68-1287; 1994, No. 10-162), according to the procedure of its publishing, is not in conflict with the Constitution of the Republic of Lithuania.

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

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

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