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On compensation for damage done to forests

Case No. 11/97

 

 

THE CONSTITUTIONAL COURT OF

THE REPUBLIC OF LITHUANIA

 

R U L I N G

 

On the compliance of Paragraph 3 of Item 3.4 of the Resolution of the Government of the Republic of Lithuania (No. 329) “On the Compensation for Damage Done to Forests” of 14 August 1991 with the Constitution of the Republic of Lithuania

 

Vilnius, 1 June 1998

 

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

The court reporter—Daiva Pitrėnaitė

Laima Vaičiūnienė, the chief specialist at the Legal and Personnel Office of the Legal Department at the Ministry of Agriculture, and Valdas Vaičiūnas, the Head of the Division of Forestry Strategy of the Forestry Department at the Ministry of Environment, both acting as the representatives of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Paragraph 1 of Article 102 of the Constitution of the Republic of Lithuania and Paragraph 1 of Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 7 May 1998, in its public hearing, considered case No. 11/97 subsequent to the petition submitted to the Court by the petitioner—the College of the Civil Cases Department of the Klaipėda Regional Court—requesting an investigation into whether Paragraph 3 of Item 3.4 of the Resolution of the Government of the Republic of Lithuania (No. 329) “On the Compensation for Damage Done to Forests” of 14 August 1991 was in compliance with the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

On 14 August 1991, the Government of the Republic of Lithuania adopted the Resolution (No. 329) “On the Compensation for Damage Done to Forests” (Official Gazette Valstybės žinios, 1991, No. 26-706). Item 3.4 was set forth by the Government in its Resolution (No. 741) “On a Partial Amendment to the 14 August 1991 Resolution (No. 329) of the Government of the Republic of Lithuania” (Official Gazette Valstybės žinios, 1993, No. 52(37)-1014) as follows:

3.4 The funds exacted for damage done to forests, as well as those received after realisation of unlawfully acquired production, shall be paid:

to the accounts of district and city boards in the case that the damage has been done to the forests categorised as belonging to the sphere of regulation of the said boards and damages have been claimed by the same;

to the owners in the case that the damage has been done to their forests and damages have been claimed by the same;

to the Fund for Forest Growing of forestry offices and national parks in the case that the damage has been done to the forests of forestry offices or those of national parks, and damages have been claimed by forest protection officials, as well as in the event that the damage has been done to forests belonging to other legal or natural persons by unlawful actions of the latter and damages have been claimed by forest protection officials;

to the Central Fund of the Forestry Ministry for Forest Growing in the case that the damage to the forests of forestry offices or those of national parks has been done by unlawful actions of these forestry offices or national parks, and damages have been claimed by forest protection officials.”

By indicating the number of the impugned paragraph of this resolution, the petitioner disregarded the requirements of Paragraph 3 of Article 9 of the Republic of Lithuania’s Law on the Procedure for Drafting Laws and Other Legal Normative Acts. According to the content of the paragraph impugned by the petitioner, it should be registered as Paragraph 3 of Item 3.4 (hereinafter referred to as Paragraph 3 of Item 3.4 of the Government Resolution (No. 329) “On the Compensation for Damage Done to Forests” of 14 August 1991).

II

On 18 June 1997, the petitioner—the College of the Civil Cases Department of the Klaipėda Regional Court—was investigating a civil case subsequent to an appeal of the respondent concerning the decision of the Klaipėda District Local Court to exact from the respondent 37,115.02 Lt in damages for the arbitrary felling of his forest. On 18 June 1997, by its ruling, the said court suspended the investigation of the case and applied to the Constitutional Court with the petition requesting an investigation into whether the provision “the funds exacted for damage done to forests <...> shall be paid to the Fund for Forest Growing of forestry offices and national parks <...> in the event that the damage has been done to forests belonging to other legal or natural persons by unlawful actions of the latter” of Paragraph 3 of Item 3.4 of the Government Resolution (No. 329) “On the Compensation for Damage Done to Forests” of 14 August 1991 was in compliance with Article 23 of the Constitution.

III

The petitioner grounds his request on the following arguments.

Article 26 of the Republic of Lithuania’s Law on Forests provides that the natural and legal persons that violated the requirements of the Law on Forests shall be brought to responsibility under the procedure provided for by the laws of the Republic of Lithuania. Paragraph 2 of Article 11 of the Law on Forests provides that the regulations for managing and utilisation of private forests shall be confirmed by the Government.

The petitioner notes that Article 23 of the Constitution stipulates that property shall be inviolable, and that the rights of ownership shall be protected by law. The petitioner is of opinion that the owner of a forest by arbitrarily, i.e. unlawfully, felling his forest can inflict damage on himself only. The responsibility for such a transgression is provided for in Article 62 of the Code of Administrative Transgressions of Law, however, no other law—the Civil Code, the Law on Forests, etc.—provides for the responsibility of the owner for felling of a private forest or the compensation for damage. The petitioner maintains that the impugned provision of Paragraph 3 of Item 3.4 of Government Resolution “On the Compensation for Damage Done to Forests” limits the rights of the owner to manage, use, and dispose of his property, and violates his interests. According to the meaning of Article 23 of the Constitution, such limitations may be provided for only by law.

IV

In the course of the preparation of the case for the judicial investigation, explanations of L. Vaičiūnienė and V. Vaičiūnas, the representatives of the party concerned, were received.

1. The representative L. Vaičiūnienė explained that, under Article 1 of the Law on Forests, “forest is one of the main resources of Lithuanian nature, it serves for the welfare of the State and its citizens, it preserves the stability of the landscape and the quality of the environment”. Forest is national wealth of our State, it satisfies the interests of the whole society, and its ecological significance is enormous. The Law on Forests grants the right to citizens to visit forests freely with the exception of reservation and special purpose forests. If compared to other objects of the right to private ownership, all these circumstances condition a specific character of legal regulation pertaining to forest as the object of the right to private ownership. The representative also indicated that the management, utilisation, restoration and preservation of forests of all ownership forms are regulated by the Law on Forests, the Law on Land, the Regulations for Managing and Utilisation of Private Forests and are confirmed by government resolution or other legal act.

The representative noted that the owners of private forests have the right to purchase woodland, to transfer it free of charge, to exchange, rent, and mortgage it under procedure established by law, as well as to get, free of charge, legal advice concerning forestry management.

The representative is of opinion that the fact that the laws and other legal acts impose limitations on the owners of private forests as regards utilisation of forest resources does not violate the provisions of property inviolability as established by Article 23 of the Constitution.

The representative pointed out that the ministry, taking account of the fact that the owner of a forest, by felling forest arbitrarily and destroying trees and shrubbery in the woodland which belongs to him by right of ownership, does not inflict harm on either the State or society, submitted to the Government a new draft Resolution “On the Compensation for Damage Done to Forests” wherein the responsibility of forest owners for compensation for damage caused by felling trees and shrubbery in the woodland belonging to them by right of ownership has not been provided for.

2. In his explanation the representative A. Vaičiūnas indicated that the specific character of legal regulation of forest as an object of the right to private ownership is conditioned by the fact that, if compared with other objects of the right of ownership, forest is national wealth of Lithuania, it satisfies the interests not only of the owner but also those of society.

The representative noted that it is impossible to mention any developed country where the owners of forests could dispose of it absolutely freely. All over the world the state regulates forest felling, restoration, their conversion into other areas of economic significance, it establishes environment preservation requirements and responsibility for violations of respective laws.

The representative maintained that the owners of private forests dispose of the forests which belong to them by the right to private ownership, they may sell their forests, transfer them free of charge, mortgage them, rent them, etc. The forest owner, however, must manage, utilise the resources of, restore and preserve his forest in observance of the requirements of laws and other legal acts.

In the opinion of the representative, the limitations imposed on the owners of private forests regarding utilisation of forest resources in the valid laws and substatutory acts do not violate the property inviolability provisions as established by Article 23 of the Constitution.

The representative pointed out that the owner of a forest who fells his forest by violating laws and other legal acts often inflicts damage on the State, society and nature. However, in such cases when a forest owner performs selective felling in utilised forests, then, in practice he does not inflict much damage either on nature or society, however, he violates valid legal acts, for which he must be brought to responsibility.

The representative noted that taking into consideration the fact that the forest owner, by arbitrarily felling forest, often inflicts damage only on himself, the Ministry of Agriculture and Forestry submitted to the Government a new draft Resolution “On the Compensation for Damage Done to Forests” wherein one does not provide for damage estimation for the forest owners who have felled their forest arbitrarily.

V

In the course of the preparation of the case for the judicial investigation, the conclusions of the specialists—Prof. Habil. Dr. V. Mikelėnas, Head of the Chair of Civil Law and Proceedings at the Law Faculty of Vilnius University, and L. Miežėnas, a prosecutor at the Division for Preparation of Civil Cases and Legal Acts of the Office of the Prosecutor General of the Republic of Lithuania—were received.

V. Mikelėnas, basing oneself on the analysis of the content of Paragraph 2 of Article 30 of the Constitution, as well as that of the norms of articles of the Civil Code and the norms of the Law on Forests, drew the conclusion that the Government, by establishing civil responsibility to the forest owner for inflicting damage after he felled his forest, was acting ultra vires, i.e. it violated the principle of the separation of powers which has been established by the Constitution and laws, as it decided the issues categorised as belonging not to its competence but that of the legislature. It is affirmed in the conclusion that, from the legal standpoint, the Government groundlessly established civil responsibility for the forest owner who has felled his forest in violation of the established procedure, as this contradicts the established fundamentals of appearance and termination of liabilities.

It is emphasised in the conclusion that forest is a special object of the right of ownership, it has a significant importance for the whole society, atmosphere and other life factors of the existence of our planet. The limitations imposed on management and utilisation of private forests by the Law on Forests and other legal acts are justifiable as they protect the public interest. The State has been granted such a right by Paragraph 3 of Article 46 of the Constitution.

In his explanation, L. Miežėnas indicated that the Law on Forests does not provide for material responsibility of forest owners for damage inflicted on the forests which belong to them by right of ownership. The Regulations for Managing and Utilisation of Private Forests do not provide for material responsibility to forest owners for the inflicted damage by felling the forests which belong to them by right of ownership. It is maintained in the explanation that, under the valid laws, for an arbitrary forest felling, or for exceeding the amount of wood or species of trees indicated in the permit, administrative responsibility might be applied to the forest owner which is provided for in the Code of Administrative Transgressions of Law.

L. Miežėnas pointed out that, by its resolution of 14 August 1991, the Government by establishing damage compensation to the state (or a municipality), when the damage has been inflicted by unlawful actions of the owner by felling the forest which belongs to him by right of private ownership, exceeded its competence powers.

In the case at issue an explanation of the vice minister of agriculture A. Brukas was also received.

VI

In the court hearing the representatives of the party concerned virtually reiterated the arguments set forth in their explanations.

The representative V. Vaičiūnas additionally explained that whenever forest is felled, some or other damage is being inflicted on the environment, and this is not doubted by environment experts. The main drawback of the impugned resolution is that one does not distinguish the damage inflicted on the forest, nor the damage which is inflicted on the environment by forest felling. The representative noted that the damage inflicted on the forest by arbitrary forest felling has 2 aspects: that of property—when damage has been inflicted on the forest, and that of environment protection—when damage has been inflicted on the environment. The representative pointed out that in the prepared new draft resolution there is not provided that property damages are to be deducted after a forest owner has arbitrarily felled his forest as it does the said damage to his own forest. However, providing one established that damage has been inflicted on the environment due to the forest felling, the owner must compensate such damage.

The representative of the party concerned L. Vaičiūnienė assented to the explanation of V. Vaičiūnas and noted that Article 26 of the Law on Forests provides for the responsibility of the third party to compensate the damage inflicted on managers, owners or users of forests. The forest owner by arbitrary forest felling inflicts damage on himself. The law provides for administrative responsibility for arbitrary forest felling by the forest owner. The civil responsibility of the forest owner for the said action should be abolished.

The representative of the party concerned V. Vaičiūnas admitted that the conditions, basis and procedure for compensation for arbitrary forest felling and, due to it, for damage inflicted on the forest as well as the environment must be established by law, while the methods and rates for the calculation of the amount of damages may be approved by the Government or, upon the commissioning of the latter, by a competent institution. In addition, the representative explained that the principles of compensation of ecological damages are not regulated in details by law. The methods and rates of determination of such damages must be based on objective criteria, i.e. by the functional purpose of forest, under which Article 4 of the Law on Forests divides forests into four groups and for each group respective legal regulation has been established.

The Constitutional Court

holds that:

1. The principle of the inviolability of property is entrenched in Paragraph 1 of Article 23 of the Constitution: “Property shall be inviolable.” Thus, it is only the owner, as a possessor of subjective rights to property, who has an exclusive right to manage, use and dispose of it. Alongside, the owner has the right to demand that other natural and legal persons, as well as the State, should not violate his ownership rights.

Paragraph 2 of Article 23 of the Constitution provides: “The rights of ownership shall be protected by law.” Thus, the State has an obligation to pass corresponding laws, and, on the grounds thereof, to protect property. For that purpose, a system of respective legal norms is created, the aim of which is to secure an opportunity to the owner to use, manage, and dispose of his property at his discretion, as well as safeguard the right of ownership from its violations. It is not possible to assert, however, that, in accomplishing his subjective ownership rights, the owner is absolutely free. Neither the Constitution nor universally recognised international legal norms deny the possibility of establishing certain limits on the management, use or disposal of one’s property by law. Meanwhile, such limitations may not deny the essence of the right of ownership.

In elucidating the content of Paragraphs 1 and 2 of Article 23 of the Constitution, one has to take account of Article 28 of the Constitution, wherein it is stipulated: “While exercising their rights and freedoms, persons must observe the Constitution and the laws of the Republic of Lithuania, and must not impair the rights and interests of other people.” The norm of Paragraph 1 of Article 96 of the Civil Code by which the owner shall manage, use and dispose of the property which belongs to him without violating the rights and legitimate interests of other persons is, in essence, in conformity to the aforesaid constitutional provision. This means that the owner, when accomplishing his subjective ownership rights, must take into consideration the public interests. Besides, while construing the essence of Paragraph 2 of Article 23 of the Constitution, the Constitutional Court noted that “<...> as far as the theory of law is concerned, the protection of property rights by legal means presuppose, in turn, appropriate limits to such protection, as law in all cases of the regulation of public relations is valid only within certain limits” (the Constitutional Court’s ruling of 13 December 1993).

2. Paragraph 1 of Article 54 of the Constitution prescribes: “The State shall concern itself with the protection of the natural environment, its fauna and flora, separate objects of nature and particularly valuable districts, and shall supervise the moderate utilisation of natural resources as well as their restoration and augmentation.” In this norm one of the aims of the activities of the State is formulated, i.e., to ensure people’s rights to healthy and clean environment. Environment, as a rule, is understood as the entirety of interrelated elements (the surface and entrails of the earth, air, water, soil, flora, fauna, organic and non-organic substances, anthropogenic components), as well as natural and anthropogenic systems uniting them, which functions in nature.

Forest is one of the chief natural resources. It is a part of the indivisible ecological system, it serves for the welfare of society and people, it preserves the stability of the landscape and improves the quality of the environment. The common principles of environmental protection are applied to forest as a constituent part of the environment: the environmental protection is the concern and obligation of the State and the population; both public and private interests should be devoted to improve the quality of the environment; the diminishing of any negative impact upon the environment; striving for ecological production; an efficient and combined utilisation of natural resources. Generally, the requirements for environmental preservation are consolidated and particularised in the norms of respective laws wherein the duties and rights of forest managers, owners and users are established.

From the standpoint of forest preservation, one should distinguish the fact that in the valid legal acts special duties are established to forest owners, managers and users, as: to protect the forests from fire, pests, diseases and other negative factors, to restore the felled forest in due time and properly, to utilise the forest in such a way which could diminish the negative impact upon the environment, to rationally manage the woodland, to preserve its biological diversity, etc.

Thus, a peculiar ecological, social and economic significance of forest for the environment and the public interests conditions certain limitations and restrictions on the right of ownership of forest owners. As a rule, this is done by regulating the management and use of forest by means of legal acts.

One should note that a many-sided tradition of forest preservation is characteristic of Lithuania. For instance, in the Rules for the Supervision and Management of Private Forests approved on 7 June 1929 it was provided that the forests of proprietors shall be under the supervision of the Forestry Department. In Lithuania a rather strict procedure of forest felling for owners was in force. The owners who violated the rules for forest felling were being brought to responsibility under the norms of the Criminal Statute. The timber that was felled unlawfully was being withheld or sequestrated.

3.1. The petitioner faced doubts whether the provision that the funds exacted for damage done to forests shall be paid to the Fund for Forest Growing of forestry offices and national parks “<...> in the event that the damage has been done to forests belonging to other legal or natural persons by unlawful actions of the latter” of Paragraph 3 of Item 3.4 of the Government Resolution (No. 329) “On the Compensation for Damage Done to Forests” of 14 August 1991 was in compliance with Article 23 of the Constitution. The petitioner is of opinion that such a provision contradicts the said article as thereby the right of the owner to manage, use and dispose of his property is limited, i.e. his interests are violated. In addition, he maintains that, according to the meaning of Article 23 of the Constitution, the rights of ownership may be restricted only by law.

By analysing the conformity of the impugned provision of Paragraph 3 of Item 3.4 of the government resolution to Article 23 of the Constitution, it is necessary to take into consideration its interaction with other norms of the said resolution, the historical aspects of legal regulation of corresponding public relations, as well as other important circumstances.

Item 1 of the government resolution prescribes that both legal and natural persons are materially responsible provided they, in the lands of the fund of forests, unlawfully fell or damage trees and shrubbery, destroy or damage forest, forest cultures, seedlings or saplings in forest plantations. Material responsibility is also established for other unlawful actions. In the resolution the rates of compensation for damage done to forests by the actions of legal and natural persons were approved, while Subitem 2 of Item 3 stipulates that the persons who have done damage to forests shall compensate it irrespective of the fact whether they are brought to criminal or administrative responsibility or not. Generalising the content of the aforesaid legal norms, one may assert that the legal grounds have been formulated therein to exact compensation for damage inflicted on forests from legal and natural persons.

The other norms of this resolution are virtually designed for particularisation of the legal regulation concerning compensation of the damage done to forests. It is evident that the impugned provision of Paragraph 3 of Item 3.4 is also of such nature. It was established therein that the funds exacted for damage done to forests shall be paid to the Fund for Forest Growing of forestry offices and national parks in the event that the damage has been done to forests belonging to other legal or natural persons by unlawful actions of the latter. This provision establishes the implementation rules for certain legal norms of the government resolution.

In assessing the lawfulness of the impugned provision of the government resolution, one has to take account of another aspect which is linked with its historical interpretation. One should note that, on 14 August 1991, when the Government Resolution “On the Compensation for Damage Done to Forests” was being adopted, in reality private forests so far did not exist. After the institution of private property had been re-instituted into the legal system of Lithuania, the nature of legal regulation of private property, including forests, was essentially changed. The Law on Forests, as well as other laws, provided for the existence of private property of forest, and established the duties of forest owners, managers and users. The legal pre-conditions for forest protection against unlawful actions were formulated, i.e., legal responsibility for arbitrary forest felling, as well as the obligation of natural and legal persons who have done damage to forest to compensate it.

Alongside, one should note that after private property of forest had come into being, the government resolution of 14 August 1991 on the compensation for damage done to forests was not correspondingly specified.

3.2. In solving the constitutionality issue of Paragraph 3 of Item 3.4 of the government resolution, one also has to base oneself on Paragraph 2 of Article 54 of the Constitution wherein it is prescribed: “The exhaustion of land and entrails of the earth, the pollution of waters and air, the production of radioactive impact on environment, as well as the impoverishment of fauna and flora, shall be prohibited by law.” The Constitutional Court notes that several aspects are to be distinguished in the content of this norm. First of all, the principle of environmental protection is consolidated therein: every legal and natural person must abstain from such actions which might inflict harm on natural environment and, it goes without saying, forests. Secondly, this norm presupposes corresponding responsibility for unlawful actions, as well as legal pre-conditions for the compensation for damage done to forest.

The norm of Paragraph 2 of Article 54 of the Constitution is the constitutional basis of the legal norms regarding compensation of the damage done to environment and forests. Article 32 of the Law on Environmental Protection provides: “Legal and natural persons who, by way of unlawful activities, cause damage on the environment, the life or health of a given person(s), or to the property or interests of other legal and natural persons, must compensate all losses, and, if possible, must restore the environmental state of the object in question.” However, corresponding norms of the Law on Forests have not been co-ordinated with the aforementioned norms yet. For example, Paragraph 1 of Article 26 of the Law on Forests provides that the legal and natural persons who inflict damage on the forest, property or interests of forest managers, owners and users, must compensate it fully or, if possible, restore the state of the matter in question which was prior to the infliction of the damage. One should pay attention to the fact that in the said article one mentions only the damage inflicted by the third party, meanwhile, the damage to the environment which may be done by forest owners when they arbitrarily fell the forest which belongs to them by right of ownership is not mentioned.

It is to be noted that the owner, by his arbitrary actions felling the forest which belongs to him by right of private ownership, may cause legal effects of 2 kinds. First, the forest owner violates the procedure for management and use of private forests which is established either by law or substatutory legal act, i.e. he performs a transgression of law for which he may be brought to legal responsibility. Second, the forest owner, by arbitrarily felling his forest, may do damage to the environment, too. In such a case, regardless of the application of administrative or criminal responsibility, liability may occur to compensate the damage inflicted on the environment.

3.3. As it was mentioned, the petitioner, by asserting that the impugned provision of Paragraph 3 of Item 3.4 of the Government Resolution (No. 329) “On the Compensation for Damage Done to Forests” of 14 August 1991 contradicts Article 23 of the Constitution, believes that the owner, by arbitrarily felling his forest, may inflict damage only on himself, therefore, one may not demand that he compensate the damage.

It should be noted that the investigation into the question as for the legal regulation concerning compensation of the damage by the forest owner which was inflicted on his forest by arbitrary forest felling must be linked with the common principles of liability law. Civil liability is a property liability one party whereof is entitled to claim damages, while the other party must compensate them. In the liability relation two parties are necessary: the person who has suffered damages, and the person who has inflicted the damage. The forest owner by arbitrarily, i.e. unlawfully, felling his forest may inflict property damage on himself as well. In this case, however, there is not any property liability, as the person who has suffered damages and the person who has inflicted the damage coincide in one person.

In the context of the case at issue it is important that the forest owner, by arbitrarily felling forest, inflicts damage on the environment, therefore, there occur the liability relations of damage compensation. In such a case, a respective institution of environmental protection is entitled to demand that the damage done to the environment be compensated.

In view of the reasoning and arguments set forth, it should be concluded that the impugned provision of Paragraph 3 of Item 3.4 of the Government Resolution (No. 329) “On the Compensation for Damage Done to Forests” of 14 August 1991 contradicts Paragraphs 1 and 2 of Article 23 of the Constitution.

Conforming to Article 102 of the Constitution of the Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

To recognise that the impugned provision that the funds exacted for damage done to forests shall be paid to the Fund for Forest Growing of forestry offices and national parks “<...> in the event that the damage has been done to forests belonging to other legal or natural persons by unlawful actions of the latter” of Paragraph 3 of Item 3.4 of the Resolution of the Government of the Republic of Lithuania (No. 329) “On the Compensation for Damage Done to Forests” of 14 August 1991 contradicts Paragraphs 1 and 2 of Article 23 of the Constitution of the Republic of Lithuania.

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

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

Justices of the Constitutional Court:

 

Egidijus Jarašiūnas     Kęstutis Lapinskas     Zigmas Levickis

 

Augustinas Normantas     Vladas Pavilonis      Jonas Prapiestis

 

Pranas Vytautas Rasimavičius      Teodora Staugaitienė     Juozas Žilys