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On the right to apply to court

Case No. 23/02

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF SECTION 3 OF ITEM 18 OF THE PROCEDURE FOR SUBMISSION, CONSIDERATION AND ISSUANCE OF PERMITS CONCERNING APPLICATIONS REQUESTING THE ACQUISITION OF NON-AGRICULTURAL LAND PLOTS AS OWNERSHIP TO NATIONAL AND FOREIGN SUBJECTS ESTABLISHED IN THE CONSTITUTIONAL LAW ON THE SUBJECTS, PROCEDURE, TERMS AND CONDITIONS OF, AND LIMITATIONS ON, THE ACQUISITION INTO OWNERSHIP OF LAND PLOTS PROVIDED FOR IN PARAGRAPH 2 OF ARTICLE 47 OF THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA (WORDING OF 10 DECEMBER 1998), WHICH WAS CONFIRMED BY THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 1423) “ON THE CONFIRMATION OF THE PROCEDURE FOR SUBMISSION, CONSIDERATION AND ISSUANCE OF PERMITS CONCERNING APPLICATIONS REQUESTING THE ACQUISITION OF NON-AGRICULTURAL LAND PLOTS AS OWNERSHIP TO NATIONAL AND FOREIGN SUBJECTS ESTABLISHED IN THE CONSTITUTIONAL LAW ON THE SUBJECTS, PROCEDURE, TERMS AND CONDITIONS OF, AND LIMITATIONS ON, THE ACQUISITION INTO OWNERSHIP OF LAND PLOTS PROVIDED FOR IN PARAGRAPH 2 OF ARTICLE 47 OF THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA” OF 10 DECEMBER 1998 WITH THE CONSTITUTION OF REPUBLIC OF LITHUANIA, ARTICLE 4 OF THE REPUBLIC OF LITHUANIA’S LAW ON COURTS (WORDING OF 24 JANUARY 2002) AND ARTICLE 5 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE LEGAL PROCEEDINGS OF ADMINISTRATIVE CASES (WORDING OF 19 SEPTEMBER 2001)

 

17 August 2004

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Jonas Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas

The court reporter—Daiva Pitrėnaitė

Jelena Liaskovskaja, Deputy Head of the Legal Division of the Ministry of Agriculture of the Republic of Lithuania, acting as the representative of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 11 August 2004, in its public hearing, considered case No. 23/02 subsequent to the petition of the Panevėžys Regional Administrative Court, the petitioner, requesting an investigation into whether the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania, which was confirmed by the Resolution of the Government of the Republic of Lithuania (No. 1423) “On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania” of 10 December 1998 was not in conflict with Paragraph 1 of Article 30 of the Constitution of the Republic of Lithuania, Paragraph 3 of Article 4 of the Republic of Lithuania’s Law on Courts and Paragraph 1 of Article 5 of the Republic of Lithuania’s Law on the Legal Proceedings of Administrative Cases.

The Constitutional Court

has established:

I

The Panevėžys Regional Administrative Court, the petitioner, considered an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania (hereinafter also referred to as the Procedure), which was confirmed by the Resolution of the Government of the Republic of Lithuania (No. 1423) “On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania” of 10 December 1998 (Official Gazette Valstybės žinios, 1998, No. 110-3042; hereinafter also referred to as the government resolution of 10 December 1998) was not in conflict with Paragraph 1 of Article 30 of the Constitution, Paragraph 3 of Article 4 of the Law on Courts and Paragraph 1 of Article 5 of the Law on the Legal Proceedings of Administrative Cases.

II

The petition of the petitioner is based on the following arguments.

1. Paragraph 1 of Article 30 of the Constitution provides that the person whose constitutional rights or freedoms are violated shall have the right to apply to court.

Under Paragraph 3 of Article 4 of the Law on Courts, enterprises, establishments, organisations and other institutions also enjoy the right to judicial defence; under Paragraph 1 of Article 5 of the Law on the Legal Proceedings of Administrative Cases, every interested subject shall be entitled to apply to court, in the manner prescribed by law, for the protection of his infringed or contested right or interest protected under law.

2. According to Article 10 of the 20 June 1996 the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania, the subjects as defined in this law, which desire to acquire a plot of non-agricultural land shall file a written application with the Government; the Government shall set the form of the application, specify the documents and information that must be submitted, as well as establish the procedures for filing and consideration of applications and the issue of permits.

By its Resolution (No. 1423) “On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania” of 10 December 1998, the Government confirmed the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania. Item 3 of the Procedure provides that the subjects who wish to acquire non-agricultural land plots as ownership, shall file applications, addressed to the Government, with county chiefs depending on the place that the land plots are situated. The county chief must consider such applications within one month as of the day that they were registered and adopt a decision either to issue or not to issue a permit to acquire the land plot (Items 13–16 of the Procedure). Section 3 of Item 18 of the Procedure provides that the applicant may lodge a complaint against the decision of the county chief with the Government or its authorised ministry; in case this complaint is considered by the Government or the ministry authorised by it, the decision adopted by it shall be final.

3. In the opinion of the petitioner, the Government had the right to establish a preliminary extra-judicial procedure for settlement of disputes, however, the procedure established is such that a subject, having lodged a complaint against the decision of the county chief with the Government or a ministry authorised by the latter, loses the right to judicial defence of his interests. Therefore, the petitioner is of the opinion that the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure groundlessly restricts the rights of the person and is in conflict with Paragraph 1 of Article 30 of the Constitution, Paragraph 3 of Article 4 of the Law on Courts and Paragraph 1 of Article 5 of the Law on the Legal Proceedings of Administrative Cases.

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the representative of the Government, the party concerned, who was J. Liaskovskaja.

1. According to Paragraph 1 of Article 10 of the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution, the subjects as defined in this law, which desire to acquire a plot of non-agricultural land shall file a written application with the Government, while under Paragraph 6 of the same article, the Government shall set the form of the application, specify the documents and information that must be submitted, as well as establish the procedures for filing and consideration of applications and the issue of permits.

Under Item 2 of the Procedure, permits for acquisition of non-agricultural land plots shall be issued by respective county chiefs depending on the place that the land plots are situated, while under Section 3 of Item 18 of the Procedure, the applicant may lodge a complaint against the decision of the county chief with the Government or its authorised ministry; in case this complaint is considered by the Government or the ministry authorised by it, the decision adopted by it shall be final.

According to the representative of the party concerned, the Government has not authorised any ministry to consider complaints regarding decisions adopted by county chiefs, therefore, the complaints specified by Item 18 of the Procedure are considered by the Government.

2. Under the Work Regulations of the Government of the Republic of Lithuania (with subsequent amendments) confirmed by the Government Resolution (No. 728) “On the Confirmation of the Work Regulations of the Government of the Republic of Lithuania” of 11 August 1994, applications of citizens, as well as other persons, including foreigners who permanently reside in the Republic of Lithuania, which are addressed to the Government, are considered in accordance with laws and other legal acts.

Under Item 40 of the Standard Procedure for Rendering Service to Citizens and Persons at Civil and Other Institutions confirmed by the Government Resolution (No. 1491) “On the Confirmation of the Standard Procedure for Rendering Service to Citizens and Persons at Civil and Other Institutions” of 25 September 2002, the applicant, if he does not agree with a decision adopted after consideration of his complaint, has the right to file a complaint with the Administrative Disputes Commission or an administrative court in pursuance with the procedure established in the Law on the Legal Proceedings of Administrative Cases.

According to the representative of the party concerned, subsequent to Paragraph 3 of Article 18 and Paragraph 3 of Article 19 of the Law on the Legal Proceedings of Administrative Cases, the regional administrative court considers complaints (applications) as the court of the first instance also as regards decisions adopted by other institutions (not provided for in the first and second paragraphs of these articles) for preliminary extrajudicial consideration of complaints in cases provided for by law. The decision of an appropriate administrative disputes commission or any other institution for a preliminary extrajudicial hearing of disputes, adopted after hearing an administrative dispute in accordance with the extrajudicial procedure, may be appealed against to the administrative court by any of the parties to the dispute, contesting the decision of the institution for a preliminary extrajudicial hearing of disputes; in such an event one can apply to the administrative court within 20 days of the day of the receiving of the decision (Paragraph 1 of Article 32 of the Law on the Legal Proceedings of Administrative Cases).

In the opinion of J. Liaskovskaja, on the grounds of the said legal acts, a resolution adopted by the Government concerning the decision of the county chief against which a complaint was filed by a national or foreign subject is an individual administrative legal act and it is final only when the complaint is considered under preliminary extrajudicial procedure; after the Government adopts a resolution concerning refusal of the county chief to issue a permit for acquisition of a non-agricultural land plot, the subject is not deprived of the right to apply to court concerning defence of its rights.

3. In the opinion of the representative of the party concerned, while taking account of the arguments set forth, the impugned provision of Item 18 of the Procedure is not in conflict with Paragraph 1 of Article 30 of the Constitution, Paragraph 3 of Article 4 of the Law on Courts and Paragraph 1 of Article 5 of the Law on the Legal Proceedings of Administrative Cases.

IV

In the course of the preparation of the case for the judicial consideration, written explanations were received from V. Markevičius, Minister of Justice of the Republic of Lithuania, V. Valeckaitė, Deputy Director of the Institute of Law, and T. Birmontienė, Director of the Lithuanian Centre for Human Rights.

V

At the Constitutional Court’s hearing, J. Liaskovskaja, the representative of the Government, the party concerned, virtually reiterated the arguments set forth in her written explanations.

J. Liaskovskaja also drew one’s attention to the fact that by the Government Resolution (No. 1349) “On the Amendment of the Resolution of the Government of the Republic of Lithuania (No. 1423) ‘On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania’ of 10 December 1998” of 30 October 2003 (hereinafter referred to as the government resolution of 30 October 2003), the government resolution of 10 December 1998 was amended and set forth in a new wording, as well as to the fact that the new wording of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania which was confirmed by the government resolution of 10 December 1998 no longer contains the provision impugned by the petitioner. Referring to Paragraph 4 of Article 69 of the Law on the Constitutional Court, according to which the annulment of the impugned legal act shall be grounds to adopt a decision to dismiss the initiated legal proceedings, the representative of the party concerned requested the Constitutional Court to dismiss the initiated legal proceedings in this case.

The Constitutional Court

holds that:

I

1. The Panevėžys Regional Administrative Court, the petitioner, requests an investigation into the compliance of the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania, which was confirmed by the Government Resolution (No. 1423) “On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania” of 10 December 1998 with Paragraph 1 of Article 30 of the Constitution, Paragraph 3 of Article 4 of the Law on Courts and Paragraph 1 of Article 5 of the Law on the Legal Proceedings of Administrative Cases.

2. On 20 June 1996, the Seimas adopted the Law on the Supplement of Article 47 of the Constitution of the Republic of Lithuania, whereby Article 47 of the Constitution was supplemented with Paragraph 2 and this article was set forth as follows:

Land, internal waters, forests, and parks may belong by right of ownership only to the citizens of the Republic of Lithuania and the State.

Municipalities, other national subjects as well as those foreign subjects conducting economic activities in Lithuania which are specified by the constitutional law in accordance with the criteria of European and Transatlantic integration chosen by the Republic of Lithuania may be permitted to acquire the ownership of non-agricultural land plots required for the construction and operation of buildings and facilities necessary for their direct activities. The procedure, conditions and restrictions of the acquisition of the ownership of such a plot shall be established by the constitutional law.

Plots of land may belong to a foreign state by right of ownership for the establishment of its diplomatic and consular missions in accordance with the procedure and on the conditions established by law.

The right of exclusive ownership of entrails of the earth, as well as the internal waters, forests, parks, roads, historical, archaeological and cultural objects of State importance shall belong to the Republic of Lithuania.

The exclusive rights to the airspace over its territory, its continental shelf, and the economic zone in the Baltic Sea shall belong to the Republic of Lithuania.”

3. On 20 June 1996, the Seimas adopted the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania, in Article 10 whereof it was established:

1. The subjects as defined in this Law, which desire to acquire a plot of non- agricultural land, shall file a written application with the Government of the Republic of Lithuania.

2. An enterprise that applies for a permit for the acquisition into ownership a land plot must, along with the application, submit documents and other official information specified by the Government, necessary for the determining the origin of the subject and the possessor of the rights of effective control, as well as documentation provided by the state land surveyor, concerning the plot in question. If the permit is requested for the acquisition of a land plot for the construction of buildings or facilities necessary for economic activities, the investing subjects must also furnish required information as to the capital being invested, specific investments and the plans of direct economic activities in Lithuania, creation of new jobs and environmental safety guarantees.

3. The national subjects specified in Article 2 of this Law, except enterprises and municipalities, that are willing to obtain the permit for the acquisition into their ownership a land plot for the operation of buildings and facilities necessary for their direct activities or for the construction of such buildings and facilities, must, along with the application, submit documents evidencing that the subject and the purpose of the property being acquired meet the conditions established by this Law.

4. The subject who applies for a permit for the acquisition of a land plot for the investment associated with the construction of buildings and facilities, must make a written obligation to the Government of the Republic of Lithuania to complete the construction of the buildings and facilities by a certain deadline and to start economic activities of a certain planned type. The subject that fails to fulfil such obligations shall pay penalties in the amount prescribed by law.

5. The agency that keeps land cadastre must, at the request of the owner, issue necessary documentation concerning the plot of land.

6. The Government shall set the form of the application, specify the documents and information that must be submitted, as well as establish the procedures for filing and consideration of applications and the issue of permits.

7. Upon the receiving of an application for the acquisition of a land plot into the ownership, the Government or an institution authorised by it, shall consider it and being ascertained that the subject which desires to acquire a land plot and said plot meet the conditions established by this Law, shall adopt the decision relative to the issue of the permit.

8. The permission to acquire a land plot may not be granted if the requested activity is subject to limitations or prohibitions established by law or other legal act.”

4. On 10 December 1998, the Government adopted the Resolution (No. 1423) “On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania”, whereby the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania was confirmed. It was established in Item 18 of the said procedure:

The issued permits for acquisition of non-agricultural land plots as ownership are registered in the book for the registering of permits for acquisition of non-agricultural land plots as ownership (subsequent to annexed Form 3).

The permits must be registered in the book in keeping to the rules of filling in the book which are given in the form.

The applicant may lodge a complaint against the decision of the county chief with the Government of the Republic of Lithuania or its authorised ministry. In case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final.”

By its Resolution (No. 139) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 1423) ‘On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania’ of 10 December 1998” of 6 February 2001, the Government partially amended the Procedure confirmed by its resolution of 10 December 1998, however, the provision “in case this complaint is considered by the Government or the ministry authorised by it, the decision adopted by it shall be final” of Item 18 thereof remained unchanged.

5. On 23 January 2003, the Seimas adopted the Law on the Alteration of Article 47 of the Constitution of the Republic of Lithuania, whereby Article 47 of the Constitution was amended. Article 47 (wording of 23 January 2003) of the Constitution provides:

The right of exclusive ownership of the subterranean, as well as internal waters, forests, parks, roads, historical, archaeological and cultural objects of State importance shall belong to the Republic of Lithuania.

The exclusive rights to the airspace over its territory, its continental shelf, and the economic zone in the Baltic Sea shall belong to the Republic of Lithuania.

In the Republic of Lithuania foreign subjects may acquire the ownership of land, internal waters, forests, and parks subsequent to a constitutional law.

Plots of land may belong to a foreign state by right of ownership for the establishment of its diplomatic and consular missions in accordance with the procedure and conditions established by law.”

6. On 20 March 2003, the Seimas adopted the Law on the Amendment of the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania, in Article 1 whereof titled “Revised Version of the Constitutional Law of the Republic of Lithuania on the Subjects, Procedure, Terms and Conditions of the Acquisition into Ownership of Land Plots, Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania” it was, inter alia, provided:

The Constitutional Law of the Republic of Lithuania on the Subjects, Procedure, Terms and Conditions of the Acquisition into Ownership of Land Plots, Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania shall be amended and set forth to read as follows:

The Constitutional Law of the republic of lithuania

on the Implementation of PARAGRAPH 3 OF Article 47

of the Constitution of the Republic of Lithuania <…>’.”

Article 11 titled “Procedure for the Issue of Permits to Acquire a Land Plot” of the Constitutional Law on the Implementation of Paragraph 3 of Article 47 of the Constitution, contained in Chapter III of the Constitutional Law on the Implementation of Paragraph 3 of Article 47 of the Constitution, which is found in Article 1 of the Law on the Amendment of the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution, provides:

1. Foreign subjects complying with the criteria established by Article 4 of this Law, which desire to acquire a plot of non-agricultural land, shall file a written application for the permit with the Government of the Republic of Lithuania or an institution authorised by it.

2. Foreign subjects that apply for a permit for the acquisition into ownership a land plot must, along with the application, submit documents specified by the Government or an institution authorised by it. If the permit is requested for the acquisition of a land plot for the construction of buildings and facilities necessary for economic activities, the investing subjects must also furnish required documents as to the capital being invested, specific investments and the plans of economic activities in Lithuania, creation of new jobs, and ecological safety guarantees.

3. The foreign subject that applies for a permit for the acquisition into its ownership a land plot for the investment associated with the construction of buildings and facilities, must make a written obligation to the Government of the Republic of Lithuania or an institution authorised by it to complete the construction of buildings and facilities by a certain deadline and to start economic activities as provided by the documents of foundation.

4. The keeper of the real property register must issue to a foreign subject applying for the permit for the acquisition of a land plot the necessary documents related to such plot of land.

5. The Government or an institution authorised by it shall set the form of application, specify the documents and information that must be submitted, as well as establish the procedure for filing and consideration of applications and the issue of permits.

6. Upon the receiving of an application for the acquisition of a land plot into their ownership, the Government or an institution authorised by it shall consider such application and, being ascertained that the foreign subject which desires to acquire a land plot and the said plot meet the terms and conditions established by this Law, shall adopt the decision relative to the issue of the permit.

7. The permit to acquire a land plot into the ownership may not be granted if the requested activity is subject to limitations or prohibitions established by law or other legal act.

8. The refusal of the Government or an institution authorised by it to issue a permit to acquire a land plot into the ownership in accordance with the procedure established by law may be contested in court.”

Article 17 titled “Entry into Force and Application of the Constitutional Law of the Republic of Lithuania on the Implementation of Paragraph 3 of Article 47 of the Constitution of the Republic of Lithuania” of the Constitutional Law on the Implementation of Paragraph 3 of Article 47 of the Constitution, which is contained in Article 1 of the Law on the Amendment of the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution, inter alia, provides: “Chapter III of the Constitutional Law of the Republic of Lithuania on the Implementation of Paragraph 3 of Article 47 of the Constitution of the Republic of Lithuania shall be in force until the day of accession of the Republic of Lithuania to the European Union.”

The Republic of Lithuania became a member of the European Union on 1 May 2004.

7. On 30 October 2003, the Government adopted the Resolution (No. 1349) “On the Amendment of the Resolution of the Government of the Republic of Lithuania (No. 1423) ‘On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania’ of 10 December 1998”, whereby the Government Resolution (No. 1423) “On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania” of 10 December 1998 was amended and set forth in a new wording; the title of the government resolution of 10 December 1998 was, inter alia, also amended: this government resolution was given the title “On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to Foreign Subjects Established in the Constitutional Law of the Republic of Lithuania on the Implementation of Paragraph 3 of Article 47 of the Constitution of the Republic of Lithuania”; the title of the Procedure was changed as well: it was entitled the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to Foreign Subjects Established in the Constitutional Law of the Republic of Lithuania on the Implementation of Paragraph 3 of Article 47 of the Constitution of the Republic of Lithuania.

The Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to Foreign Subjects Established in the Constitutional Law of the Republic of Lithuania on the Implementation of Paragraph 3 of Article 47 of the Constitution of the Republic of Lithuania, confirmed by the Government resolution of 10 December 1998 (wording of 30 October 2003), does not contain the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final”, which is impugned by the petitioner.

Item 4 of the government resolution of 10 December 1998 (wording of 30 October 2003) provides that “this Resolution shall be effective until the day that the Republic of Lithuania becomes a member of the European Union”.

It has been mentioned that the Republic of Lithuania became a member of the European Union on 1 May 2004. Thus, as of 1 May 2004, the said government resolution became no longer effective.

8. At the Constitutional Court’s hearing, the representative of the Government, the party concerned, submitted a request to dismiss the initiated legal proceedings in this case, arguing that the government resolution of 10 December 1998 was amended by the government resolution of 30 October 2003 and set forth in its new wording, and that the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to Foreign Subjects Established in the Constitutional Law of the Republic of Lithuania on the Implementation of Paragraph 3 of Article 47 of the Constitution of the Republic of Lithuania, confirmed by the government resolution of 10 December 1998, no longer contains the provision impugned by the petitioner, and referring to Paragraph 4 of Article 69 of the Law on the Constitutional Court, according to which the annulment of the impugned legal act shall be grounds to adopt a decision to dismiss the initiated legal proceedings.

Paragraph 4 of Article 69 of the Law on the Constitutional Court provides that the annulment of the impugned legal act shall be grounds to adopt a decision to dismiss the initiated legal proceedings. While construing this provision of the Law on the Constitutional Court, the Constitutional Court has held that the formula “shall be grounds to adopt a decision to dismiss the initiated legal proceedings” should be construed as establishing the right to the Constitutional Court, in cases when not courts but the other subjects pointed out in Article 106 of the Constitution applied to the Constitutional Court, while taking account of the circumstances of the case, to dismiss the initiated legal proceedings, but not as stipulating that in every case when the impugned legal act was annulled the instituted legal proceedings must be dismissed. Under the Constitution, in the cases when a court considering a case applies to the Constitutional Court after it has had doubts concerning the compliance of a law applicable in the case with the Constitution, also concerning the compliance of an act adopted by the Seimas, or an act of the President of the Republic or the Government with the Constitution or laws, the Constitutional Court has a duty to consider the petition of the court regardless of the fact whether or not the impugned law or other legal is valid (the Constitutional Court’s rulings of 5 April 2000, 4 March 2002, 10 May 2002, 3 June 2002, 21 August 2002, and 4 March 2003).

9. Subsequent to the petition of the petitioner, in this case the Constitutional Court will investigate whether the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania (wording of 10 December 1998), which was confirmed by the Government Resolution (No. 1423) “On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania” of 10 December 1998 was not in conflict with Paragraph 1 of Article 30 the Constitution, Paragraph 3 of Article 4 of the Law on Courts and Paragraph 1 of Article 5 of the Law on the Legal Proceedings of Administrative Cases.

II

On the compliance of the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania (wording of 10 December 1998), which was confirmed by the Government Resolution (No. 1423) “On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania” of 10 December 1998 with Paragraph 1 of Article 30 the Constitution.

1. The petitioner requests an investigation into the compliance of the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure (wording of 10 December 1998) with Paragraph 1 of Article 30 the Constitution.

2. Paragraph 1 of Article 30 the Constitution provides that the person whose constitutional rights or freedoms are violated shall have the right to apply to court.

3. In a state under the rule of law, a possibility is ensured for everyone to protect his rights in court from other persons, as well as unlawful actions of state institutions or officials (the Constitutional Court’s ruling of 1 October 1997). Under Paragraph 1 of Article 30 of the Constitution, a person must be guaranteed the right to an independent and impartial arbiter of the dispute, who would settle the legal dispute on the grounds of the Constitution and laws; every person enjoys this right; the person is guaranteed the defence of his violated rights in court regardless of the legal status of the person; the infringed rights and legitimate interests of persons must be defended in court irrespective of whether or not they are directly established in the Constitution; the rights of the person must be defended not formally, but in reality and effectively from unlawful actions of both private persons and state institutions or officials (the Constitutional Court’s rulings of 1 October 1997, 8 May 2000, and 12 July 2001). The guarantee of the protection of the rights and freedoms of persons is a guarantee of procedural nature, an essential element of the constitutional institute of rights and freedoms of persons (the Constitutional Court’s ruling of 30 June 2000), as well as a necessary condition of implementation of justice and an inseparable element of the content of the constitutional principle of a state under the rule of law.

The right to apply to court is an absolute one (the Constitutional Court’s ruling of 30 June 2000). It is not permitted to limit or deny this right. Under the Constitution, the legislature has a duty to establish the legal regulation so that it could be possible to settle all disputes concerning violations of rights and freedoms of persons in court. Legal acts can also establish a procedure of out-of-court settlement of disputes. However, it is not permitted to establish any such legal regulation which would deny the right of a person, who thinks that his rights or freedoms have been violated, to defend his rights or freedoms in court (the Constitutional Court’s rulings of 2 July 2002 and 4 March 2003).

4. Section 3 of Item 18 of the Procedure (wording of 10 December 1998) used to provide:

The applicant may lodge a complaint against the decision of the county chief with the Government of the Republic of Lithuania or its authorised ministry. In case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final.”

4.1. The part of the impugned provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it” should be construed together with the provision “the applicant may lodge a complaint against the decision of the county chief with the Government of the Republic of Lithuania or its authorised ministry” of Section 3 of Item 18 of the Procedure. The part of the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it” means that in case the applicant files such a complaint, this complaint must be considered, and it may not be construed as meaning that, purportedly, the Government or the ministry authorised by it may fail to consider the complaint of the applicant concerning a decision of the county chief regarding the application of the applicant requesting the issuance of a permit to acquire a non-agricultural land plots as ownership.

4.2. The part of the impugned provision “the decision adopted by it shall be final” means that one cannot lodge a complaint with court against a decision as to the complaint of the applicant concerning a decision of the county chief regarding the application of the applicant requesting the issuance of a permit to acquire a non-agricultural land plots as ownership. Such legal regulation denies the constitutional right of a person, who thinks that his rights or freedoms have been violated, to defend his rights or freedoms in court. Thus, it should be judged that the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure (wording of 10 December 1998) was in conflict with Paragraph 1 of Article 30 the Constitution, and that, due to this, it violated the constitutional principle of a state under the rule of law.

5. Taking account of the arguments set forth, it should be concluded that the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania (wording of 10 December 1998), which was confirmed by the government resolution of 10 December 1998, was in conflict with Paragraph 1 of Article 30 the Constitution and the constitutional principle of a state under the rule of law.

III

On the compliance of the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania (wording of 10 December 1998), which was confirmed by the Government Resolution (No. 1423) “On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania” of 10 December 1998 with Article 4 of the Law on Courts (wording of 24 January 2002) and Article 5 of the Law on the Legal Proceedings of Administrative Cases (wording of 19 September 2001).

1. The petitioner requests an investigation into the compliance of the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure (wording of 10 December 1998) with Paragraph 3 of Article 4 of the Law on Courts and Paragraph 1 of Article 5 of the Law on the Legal Proceedings of Administrative Cases.

2. Article 4 of the Law on Courts (wording of 24 January 2002) provides:

1. Citizens the Republic of Lithuania shall have the right to legal defence against encroachment upon their rights and freedoms which are established in the Constitution of the Republic of Lithuania and laws, and international treaties of the Republic of Lithuania. In cases provided for by law, they have the right to legal assistance which is guaranteed by the State.

2. Foreigners and stateless persons shall enjoy the same rights to legal defence as the citizens of the Republic of Lithuania unless the laws and international treaties of the Republic of Lithuania provide otherwise.

3. Enterprises, establishments, organisations and other institutions shall also have the right to legal defence.”

3. Article 5 of the Law on the Legal Proceedings of Administrative Cases (wording of 19 September 2000) provides:

1. Every interested subject shall be entitled to apply to the court, in the manner prescribed by law, for the protection of his infringed or contested right or interest protected under law.

2. Waiver of the right to apply to the court shall be inadmissible.

3. The court shall accept an administrative case for hearing:

1) subsequent to the complaint or petition of the person or his representative, applying for the protection of his right or interest protected under law;

2) subsequent to the petition for the protection of the rights of other persons lodged by the institutions and establishments specified by law or by the servants thereof;

3) subsequent to the petition for the protection of state or other public interests lodged in the cases established by law by the prosecutor, subjects of administration, officials of the National Audit Office, other state institutions, establishments, organisations or natural persons;

4) subsequent to the petition for the protection of the rights of municipalities in the sphere of public administration, lodged by municipal institutions, establishments and services;

5) in the cases established by law, subsequent to the petition for settlement of administrative disputes lodged by subjects of public administration.”

4. Article 4 of the Law on Courts (wording of 24 January 2002) and Article 5 of the Law on the Legal Proceedings of Administrative Cases (wording of 19 September 2000) establish the right of a person, who thinks that his rights or freedoms have been violated, to defend his rights or freedoms in court, they also regulate the relations related with the implementation of the right of a person to judicial defence.

5. It has been held in this ruling of the Constitutional Court that the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania (wording of 10 December 1998), which was confirmed by the government resolution of 10 December 1998, was in conflict with Paragraph 1 of Article 30 the Constitution and the constitutional principle of a state under the rule of law.

Due to the same arguments, one is to hold that the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania (wording of 10 December 1998), which was confirmed by the government resolution of 10 December 1998, was in conflict with Paragraph 3 of Article 4 of the Law on Courts (wording of 24 January 2002) and Paragraph 1 of Article 5 of the Law on the Legal Proceedings of Administrative Cases (wording of 19 September 2000).

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 gives the following

ruling:

1. To recognise that the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania (wording of 10 December 1998), which was confirmed by the Resolution of the Government of the Republic of Lithuania (No. 1423) “On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania” of 10 December 1998, was in conflict with Paragraph 1 of Article 30 the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

2. To recognise that the provision “in case this complaint is considered by the Government of the Republic of Lithuania or the ministry authorised by it, the decision adopted by it shall be final” of Section 3 of Item 18 of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania (wording of 10 December 1998), which was confirmed by the Resolution of the Government of the Republic of Lithuania (No. 1423) “On the Confirmation of the Procedure for Submission, Consideration and Issuance of Permits Concerning Applications Requesting the Acquisition of Non-agricultural Land Plots as Ownership to National and Foreign Subjects Established in the Constitutional Law on the Subjects, Procedure, Terms and Conditions of, and Limitations on, the Acquisition into Ownership of Land Plots Provided for in Paragraph 2 of Article 47 of the Constitution of the Republic of Lithuania” of 10 December 1998, was in conflict with Article 4 of the of the Republic of Lithuania’s Law on Courts (wording of 24 January 2002) and Article 5 of the of the Republic of Lithuania’s Law on the Legal Proceedings of Administrative Cases (wording of 19 September 2000).

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:                                                   Armanas Abramavičius

Egidijus Jarašiūnas

Egidijus Kūris

Kęstutis Lapinskas

Zenonas Namavičius

Jonas Prapiestis

Vytautas Sinkevičius

Stasys Stačiokas