Lt

On territorial planning

Case No. 16/07-17/07-20/08

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 6 (WORDING OF 8 JUNE 2006) OF ARTICLE 22 OF THE REPUBLIC OF LITHUANIA’S LAW ON TERRITORIAL PLANNING (WORDING OF 15 JANUARY 2004) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, ON THE COMPLIANCE OF ITEM 7.2 (WORDING OF 15 JANUARY 2004) OF THE DESCRIPTION OF THE PROCEDURE FOR TRANSFER OF RIGHTS AND OBLIGATIONS OF THE ORGANISER OF THE DETAILED PLANNING OF TERRITORIES AS WELL AS CONCLUSION OF CONTRACTS AS APPROVED BY THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 635) “ON THE APPROVAL OF THE DESCRIPTION OF THE PROCEDURE FOR TRANSFER OF RIGHTS AND OBLIGATIONS OF THE ORGANISER OF THE DETAILED PLANNING OF TERRITORIES AS WELL AS CONCLUSION OF CONTRACTS” OF 26 MAY 2004 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, AS WELL AS WITH PROVISIONS OF THE REPUBLIC OF LITHUANIA’S LAW ON TERRITORIAL PLANNING AND THE REPUBLIC OF LITHUANIA’S LAW ON FORESTS, AND ON THE COMPLIANCE OF ITEM 7.4 OF THE PROCEDURE FOR CONVERTING FOREST LAND INTO OTHER LANDED PROPERTY AS APPROVED BY ITEM 1 OF THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 641) “ON THE APPROVAL OF THE PROCEDURE FOR CONVERTING FOREST LAND INTO OTHER LANDED PROPERTY” WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, AS WELL AS PROVISIONS OF THE REPUBLIC OF LITHUANIA’S LAW ON FORESTS AND THE REPUBLIC OF LITHUANIA’S LAW ON TERRITORIAL PLANNING

22 June 2009
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, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Aurelija Stancikienė, a Member of the Seimas, Darius Karvelis, the Head of the Office of the Committee on Environment Protection of the Seimas, Daina Petrauskaitė, the Head of the Civil Law Unit of the Legal Department of the Office of the Seimas, as well as Neringa Azguridienė, an Advisor at the Public Law Unit of the same department, acting as the representatives of the Seimas of the Republic of Lithuania, a party concerned

Robertas Klovas, the Director of the Legal and Personnel Department of the Ministry of Environment of the Republic of Lithuania, and Eglė Izokaitytė, the Chief Specialist at the Law Application Division of the aforementioned department, acting as the representatives of the Government of the Republic of Lithuania, a party concerned,

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania, Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 8 June 2009, considered constitutional justice case No. 16/07-17/07-20/08 subsequent to:

1) the petition (No. 1B-08/2007) of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into:

whether Paragraph 6 (wording of 8 June 2006) of Article 22 of the Republic of Lithuania’s Law on Territorial Planning (wording of 15 January 2004) to the extent that, according to the petitioner, it does not prescribe that detailed plans, under which the main targeted purpose of utilisation of land is converted from forestry land into land for other purposes, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is not in conflict with Paragraph 3 of Article 46 and Paragraph 1 of Article 54 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law,

whether Item 7.2 (wording of government resolution No. 36 of 15 January 2004) of the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts as approved by the Resolution of the Government or the Republic of Lithuania (No. 635) “On the Approval of the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts” of 26 May 2004 to the extent that, according to the petitioner, it does not define that the rights and obligations of the organiser of detailed territorial planning may be transferred and the contract may be concluded, as well as the main targeted land utilisation purpose may be converted from forestry land into land for other purposes—the construction of structures or development of other activity—where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof (cities, towns), is not in conflict with Paragraph 3 of Article 46, Paragraph 1 of Article 54 of the Constitution of the Republic of Lithuania, the constitutional principle of a state under the rule of law, Paragraph 4 (wording of 8 June 2006) of Article 24 of the Republic of Lithuania’s Law on Territorial Planning (wording of 15 January 2004), as well as Paragraph 1 of Article 11 of the Republic of Lithuania’s Law on Forests (wording of 10 April 2001),

whether Item 7.4 of the Procedure for Converting Forest Land into Other Landed Property as approved by Item 1 of the Resolution of the Government or the Republic of Lithuania (No. 641) “On the Approval of the Procedure for Converting Forest Land into Other Landed Property” of 9 May 2002 is not in conflict with Article 54 of the Constitution, the constitutional principle of a state under the rule of law, Paragraph 1 of Article 11 of the Republic of Lithuania’s Law on Forests (wording of 10 April 2001), Paragraph 4 (wording of 8 June 2006) of Article 24 and Paragraph 3 (wording of 8 June 2006) of Article 26 of the Republic of Lithuania’s Law on Territorial Planning (wording of 15 January 2004);

2) the petition (No. 1B-17/2007) of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into:

whether Paragraph 6 (wording of 8 June 2006) of Article 22 of the Republic of Lithuania’s Law on Territorial Planning (wording of 15 January 2004) to the extent that, according to the petitioner, it does not prescribe that detailed plans, under which the main targeted purpose of utilisation of land is converted from forestry land into land for other purposes, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is not in conflict with Paragraph 3 of Article 46 and Paragraph 1 of Article 54 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law,

whether Item 7.2 (wording of government resolution No. 36 of 15 January 2004) of the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts as approved by the Resolution of the Government or the Republic of Lithuania (No. 635) “On the Approval of the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts” of 26 May 2004 to the extent that, according to the petitioner, it does not define that the rights and obligations of the organiser of detailed territorial planning may be transferred and the contract may be concluded, as well as the main targeted land utilisation purpose may be converted from forestry land into land for other purposes—the construction of structures or development of other activity—where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof (cities, towns), is not in conflict with Paragraph 3 of Article 46, Paragraph 1 of Article 54 of the Constitution of the Republic of Lithuania, the constitutional principle of a state under the rule of law, Paragraph 4 (wording of 8 June 2006) of Article 24 of the Republic of Lithuania’s Law on Territorial Planning (wording of 15 January 2004), as well as Paragraph 1 of Article 11 of the Republic of Lithuania’s Law on Forests (wording of 10 April 2001),

whether Item 7.4 of the Procedure for Converting Forest Land into Other Landed Property as approved by Item 1 of the Resolution of the Government or the Republic of Lithuania (No. 641) “On the Approval of the Procedure for Converting Forest Land into Other Landed Property” of 9 May 2002 is not in conflict with Article 54 of the Constitution, the constitutional principle of a state under the rule of law, Paragraph 1 of Article 11 of the Republic of Lithuania’s Law on Forests (wording of 10 April 2001), Paragraph 4 (wording of 8 June 2006) of Article 24 and Paragraph 3 (wording of 8 June 2006) of Article 26 of the Republic of Lithuania’s Law on Territorial Planning (wording of 15 January 2004);

3) the petition (No. 1B-21/2008) of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into:

whether Paragraph 6 (wording of 8 June 2006) of Article 22 of the Republic of Lithuania’s Law on Territorial Planning (wording of 15 January 2004) to the extent that, according to the petitioner, it does not prescribe that detailed plans, under which the main targeted purpose of utilisation of land is converted from forestry land into land for other purposes, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is not in conflict with Paragraph 3 of Article 46 and Paragraph 1 of Article 54 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law,

whether Item 7.4 of the Procedure for Converting Forest Land into Other Landed Property as approved by Item 1 of the Resolution of the Government or the Republic of Lithuania (No. 641) “On the Approval of the Procedure for Converting Forest Land into Other Landed Property” of 9 May 2002 is not in conflict with Article 54 of the Constitution, the constitutional principle of a state under the rule of law, Paragraph 1 of Article 11 of the Republic of Lithuania’s Law on Forests (wording of 10 April 2001), Paragraph 4 (wording of 8 June 2006) of Article 24 and Paragraph 3 (wording of 8 June 2006) of Article 26 of the Republic of Lithuania’s Law on Territorial Planning (wording of 15 January 2004).

By the Constitutional Court’s Decision “On Joining Petitions” of 1 October 2007, petitions Nos. 1B-17/2007 and 1B-08/2007 of the Vilnius Regional Administrative Court were joined into one case and it was given reference No. 16/07-17/07.

By the Constitutional Court’s Decision “On Joining Petitions” of 21 April 2009, petition No. 1B-21/2008 of the Vilnius Regional Administrative Court was also added to case No. 16/07-17/07; the case was given reference No. 16/07-07/07-20/08.

The Constitutional Court

has established:

I

1. The Vilnius 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 a petition (No. 1B-08/2007) requesting an investigation into:

whether Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004) to the extent that, according to the petitioner, it does not prescribe that detailed plans, under which the main targeted purpose of utilisation of land is converted from forestry land into land for other purposes, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is not in conflict with Paragraph 3 of Article 46 and Paragraph 1 of Article 54 of the Constitution and the constitutional principle of a state under the rule of law,

whether Item 7.2 (wording of 15 January 2004) of the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts (hereinafter also referred to as the Description) as approved by the Government Resolution (No. 635) “On the Approval of the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts” of 26 May 2004 (hereinafter also referred to as government resolution No. 635 of 26 May 2004) to the extent that, according to the petitioner, it does not define that the rights and obligations of the organiser of detailed territorial planning may be transferred and the contract may be concluded, as well as the main targeted land utilisation purpose may be converted from forestry land into land for other purposes—the construction of structures or development of other activity—where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof (cities, towns), is not in conflict with Paragraph 3 of Article 46, Paragraph 1 of Article 54 of the Constitution, the constitutional principle of a state under the rule of law, Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law on Territorial Planning (wording of 15 January 2004), as well as Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001),

whether Item 7.4 of the Procedure for Converting Forest Land into Other Landed Property (hereinafter also referred to as the Procedure) as approved by Item 1 of the Government Resolution No. 641 “On the Approval of the Procedure for Converting Forest Land into Other Landed Property” of 9 May 2002 (hereinafter also referred to as government resolution No. 641 of 9 May 2002) is not in conflict with Article 54 of the Constitution, the constitutional principle of a state under the rule of law, Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001), Paragraph 4 (wording of 8 June 2006) of Article 24 and Paragraph 3 (wording of 8 June 2006) of Article 26 of the Law on Territorial Planning (wording of 15 January 2004).

2. The Vilnius 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 a petition (No. 1B-17/2007) requesting an investigation into:

whether Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004) to the extent that, according to the petitioner, it does not prescribe that detailed plans, under which the main targeted purpose of utilisation of land is converted from forestry land into land for other purposes, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is not in conflict with Paragraph 3 of Article 46 and Paragraph 1 of Article 54 of the Constitution and the constitutional principle of a state under the rule of law,

whether Item 7.2 (wording of 15 January 2004) of the Description as approved by government resolution No. 635 of 26 May 2004 to the extent that, according to the petitioner, it does not define that the rights and obligations of the organiser of detailed territorial planning may be transferred and the contract may be concluded, as well as the main targeted land utilisation purpose may be converted from forestry land into land for other purposes—the construction of structures or development of other activity—where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof (cities, towns), is not in conflict with Paragraph 3 of Article 46, Paragraph 1 of Article 54 of the Constitution, the constitutional principle of a state under the rule of law, Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law on Territorial Planning (wording of 15 January 2004), as well as Paragraph 1 of Article 11 of the Republic of Lithuania’s Law on Forests (wording of 10 April 2001),

whether Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 is not in conflict with Article 54 of the Constitution, the constitutional principle of a state under the rule of law, Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001), Paragraph 4 (wording of 8 June 2006) of Article 24 and Paragraph 3 (wording of 8 June 2006) of Article 26 of the Law on Territorial Planning (wording of 15 January 2004).

3. The Vilnius 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 a petition (No. 1B-21/2008) requesting an investigation into:

whether Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004) to the extent that, according to the petitioner, it does not prescribe that detailed plans, under which the main targeted purpose of utilisation of land is converted from forestry land into land for other purposes, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is not in conflict with Paragraph 3 of Article 46 and Paragraph 1 of Article 54 of the Constitution and the constitutional principle of a state under the rule of law,

whether Item 7.4 of the Procedure for Converting Forest Land into Other Landed Property as approved by Item 1 of the Resolution of the Government or the Republic of Lithuania (No. 641) “On the Approval of the Procedure for Converting Forest Land into Other Landed Property” of 9 May 2002 is not in conflict with Article 54 of the Constitution, the constitutional principle of a state under the rule of law, Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001), Paragraph 4 (wording of 8 June 2006) of Article 24 and Paragraph 3 (wording of 8 June 2006) of Article 26 of the Law on Territorial Planning (wording of 15 January 2004).

II

1. The petitions (Nos. 1B-08/2007, 1B-17/2007 and 1B-21/2008) of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004) to the indicated extent is not in conflict with the Constitution, are based on the following arguments.

According to the petitioner, the state must regulate economic activity in order that the land intended for agriculture, forestry and other purposes is utilised in line with the conditions that are defined in territorial planning documents and in order that the interests of the state, of the owner of the forest and of the public are harmonised when, upon exception procedure, the forest land is converted into other landed property. In the opinion of the petitioner, these interests are harmonised by carrying out the territorial planning of the Republic of Lithuania, i.e. by drafting territorial planning documents and by organising, upon the procedure defined by the Government, a public discussion about drafts of the planning documents. Various provisions of the Law on Territorial Planning consolidate a principle that solutions of territorial planning of lower level must be in line with the territorial planning document of upper level, as well as with the laws and other legal acts.

The impugned Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004) provides that the detailed plans that convert the main purpose of utilisation of land are drafted in the event that such conversion is provided for in general or special plans of a municipality or part thereof, still this provision regulates solely conversion of land for agricultural purposes to land for other purposes and does not define conditions of drafting the detailed plans, in which the main targeted purpose of utilisation of land is converted from forestry into other purpose. The petitioner has doubts whether the situation of the owners of land lots intended for forestry and agriculture, who wish to convert the main targeted purpose of such lots, becomes unequal due to such legal regulation entrenched in the Law on Territorial Planning, whether the principles of reconstructive and rational management of forests are not violated, and whether legal preconditions are created for proportional and fair harmonisation of the interests of the owners of land lots intended for forestry and the public interest, and for ensuring the rational utilisation of forests.

The petitioner indicates that the reasons for his doubt originate, inter alia, from the following provisions of the official constitutional doctrine: land, forests, parks, water bodies are special objects of ownership, the foundation of welfare of the nation; their utilisation and protection is a prerequisite of human existence as well as survival and development of a human being and the society; environment protection, rational utilisation and increase of natural resources is the public interest, which must be guaranteed by the state; special ecological, social and economic significance of the forest causes certain restrictions of ownership right of the owners of forest, which must be in proportion to the constitutionally reasoned purpose; the ownership right may be limited by means of a law, however, such limitations must be necessary in a democratic society in order to preserve the values that are entrenched in the Constitution, and the principle of proportionality must be followed.

2. The petitions (Nos. 1B-08/2007, 1B-17/2007 and 1B-21/2008) of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Item 7.2 (wording of 15 January 2004) of the Description as approved by government resolution No. 635 of 26 May 2004 to the indicated extent is not in conflict with the Constitution, the Law on Territorial Planning and the Law on Forests (articles and paragraphs thereof) are based on the following arguments.

Item 7.2 (wording of 15 January 2007), analogously to Paragraph 6 of Article 22 of the Law on Territorial Planning, provides for a condition related to converting the main targeted purpose of utilisation of land for agricultural purposes into land for other purposes that such conversion is possible only in the event that this is defined in general and special plans of a municipality or part thereof (cities, towns); meanwhile, no such condition is established concerning the converting of the main targeted purpose of utilisation of land intended for forestry purposes into land for other purposes. Therefore, the petitioner had a doubt whether this item of the Description is not in conflict with the Constitution, the Law on Territorial Planning and the Law on Forests to the extent that, according to the petitioner, it does not define that the rights and obligations of the organiser of detailed territorial planning may be transferred and the contract may be concluded, as well as the main targeted land utilisation purpose may be converted from forestry land into land for other purposes—the construction of structures—where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof (cities, towns).

3. The petitions (Nos. 1B-08/2007, 1B-17/2007 and 1B-21/2008) of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002, is not in conflict with the Constitution, the Law on Territorial Planning and the Law on Forests (articles and paragraphs thereof) are based on the following arguments.

Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 defines that in the forests of groups II and IV, which are not listed in Items 7.1 and 7.2 of the Procedure, forest land may also be converted into other landed property without general plans of the territory of a municipality or parts of the territory of a municipality, which are drafted and approved upon the procedure set in the Law on Territorial Planning, or special documents on planning—projects of forest management.

According to the petitioner, it is possible to harmonise the interests of the state, of the owner of the forest and of the public only by carrying out the procedures of territorial planning of the Republic of Lithuania and following the principle of general planning of territories whereby solutions of documents of territorial planning of lower level should not violate the laws and other legal acts, and be in line with territorial planning documents of upper level. Therefore, the petitioner has doubts as to whether the legal regulation entrenched in Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002, which regulates the drafting of detailed plans that convert the main targeted purpose of the utilisation of land from forestry into agriculture, ensured a rational, moderate utilisation of natural resources (forest), as well as “whether one did not violate the principles of continuous, rational utilisation of the forest and reforestation, and whether a proportion was maintained between the interests of the owners of the forest and the public interest.”

III

In the course of the preparation of the case for the Constitutional Court’s hearing, written explanations were received from the representatives of the Seimas, a party concerned, who were A. Stancikienė, a member of the Seimas, D. Karvelis, the Head of the Office of the Committee on Environment Protection of the Seimas, N. Azguridienė, an Advisor at the Public Law Unit of the Legal Department of the Office of the Seimas, D. Petrauskaitė, the Head of the Civil Law Unit of the same department, former representatives of the Seimas, a party concerned, who were Antanas Bosas, a former member of the Seimas (pursuant to the 17 February 2009 ordinance (No. PP-22) of the Speaker of the Seimas, A. Bosas lost the power to represent the Seimas in this constitutional justice case), Bronius Bradauskas, the former Chairperson of the Seimas Committee on Environment Protection (pursuant to the 17 February 2009 ordinance (No. PP-23) of the Speaker of the Seimas, B. Bradauskas lost the power to represent the Seimas in this constitutional justice case), as well as the representatives of the Government, a party concerned, who were R. Klovas, the Director of the Legal and Personnel Department of the Ministry of Environment, A. Murauskaitė, the Head of the Law Application Division of the same department (upon the 3 June 2009 ordinance (No. 196) of the Prime Minister, A. Murauskaitė lost the power to represent the Government in this constitutional justice case), and E. Izokaitytė, the Chief Expert at the Law Application Division of the aforementioned department, which state that the impugned legal regulation is not in conflict with the respective legal acts of higher legal force, inter alia, the Constitution.

1. In the written explanations of the representatives of the Seimas, a party concerned, who were A. Bosas, B. Bradauskas and D. Karvelis, one stated that Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004) to the extent impugned by the petitioner is not in conflict with the Constitution.

In the opinion of the representatives of the Seimas, the impugned legal regulation that is established in the Law on Territorial Planning should be assessed in a systemic way, by taking into account other provisions of the same law and other laws. Social relations of drafting the territorial planning documents in case of converting the main targeted purpose of utilisation are regulated without violating the principles of protection, supervision, utilisation of natural environment, fauna and flora as well as separate objects of nature and especially valuable locations, those of restoration and increase of natural resources.

According to the representatives of the Seimas, it is obvious from the provisions of Paragraph 3 (wording of 8 June 2006) of Article 26, Paragraph 2 (wording of 8 June 2006) of Article 7 and Paragraph 2 of Article 13 of the Law on Territorial Planning (wording of 15 January 2004), which consolidate the general (and are not impugned by the petitioner) “principles of legal hierarchy of documents on territorial planning that should be approved by legal acts”, that solutions of the detailed plan may not contradict to solutions of the general or special plan, that these principles apply to all detailed plans irrespective of the established main targeted purpose of utilisation of land, including the land meant for forestry.

In the opinion of the representatives of the Seimas, the impugned Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004) consolidates a special provision on land for agricultural purposes. This was made because social relations of converting forest land into other landed property are regulated by Article 11 of the Law on Forests (wording of 10 April 2001), meanwhile, conversion of land for agricultural purposes has not been clearly regulated.

2. In the written explanations of N. Azguridienė and D. Petrauskaitė, representatives of the Seimas, a party concerned, it is maintained that Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004) to the indicated extent is not in conflict with the Constitution.

In the opinion of the representatives of the Seimas, the main law that regulates the planning of territories is the Law on Territorial Planning. However, the planning of territories is regulated by other laws as well. The impugned Paragraph 6 of Article 22 of the Law on Territorial Planning contains a special provision that is applicable while drafting detailed plans when the purpose of land for agricultural purposes is converted.

Having assessed the legal regulation that sets the procedure of converting forest land into other landed property, the representatives of the Seimas conclude that the rules for converting forest land into other landed property are stricter in comparison with the rules that apply to conversion of land for agricultural purposes into other landed property. In their opinion, the owners of forest land, who intend to convert the purpose of the forest land, never enjoyed in the past or do not enjoy at present more privileges in comparison with the owners of land for agricultural purposes, and the fact that the procedure of converting the main targeted purpose of forest land and land for agricultural purposes is defined by different legal acts, does not mean in itself that one group of owners of land enjoy more rights in comparison with another group.

3. In her written explanations A. Stancikienė, a representative of the Seimas, a party concerned, basically consents to the explanations of N. Azguridienė and D. Petrauskaitė, representatives of the Seimas.

4. In the written explanations of A. Murauskaitė, a representative of the Government, a party concerned, it is maintained that Item 7.2 (wording of 15 January 2007) of the Description as approved by government resolution No. 635 of 26 May 2004 to the indicated extent and Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 were not in conflict with the Constitution and laws.

4.1. According to the representative of the Government, pursuant to the Law on Territorial Planning municipalities may, upon the procedure defined by the Government, conclude contracts with users of land lots on transfer of rights and obligations of the organiser of detailed territorial planning. Such procedure is defined in the Description (wording of 15 January 2007) as approved by government resolution No. 635 of 26 May 2004. Pursuant to Item 3 of the Description, a municipality may conclude the contract only when the objectives of planning that are indicated in the applications of possessors or users of the land lots are not in conflict with the requirements of laws and other legal acts and solutions of general and special plans. Thus, the impugned legal regulation entrenched in the Description (wording of 15 January 2007) as approved by government resolution No. 635 of 26 May 2004 is not in conflict with the Constitution, the Law on Territorial Planning and the Law on Forests.

According to the representative of the Government, the Description (wording of 15 January 2007) as approved by government resolution No. 635 of 26 May 2004 sets only the procedure of transferring the rights and obligations of the organiser of territorial planning and terms of concluding the contract, therefore, this legal act should not be regarded as a legal act that sets conditions and restrictions for converting the main targeted purpose of utilisation of land.

4.2. The representative of the Government notes that, according to the legal regulation consolidated in Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002, a possibility was provided for to convert the forest land located in the forests of groups III and IV, which are not listed in Items 7.1 and 7.2 of the Procedure, into other landed property even in the absence of general plans of the territory of a municipality or parts of the territory of a municipality, which are drafted and approved upon the procedure defined in the Law on Territorial Planning, or in the absence of special documents on planning—projects of forest management. Such a possibility was not provided for in Paragraph 4 (wording of 8 June 2006) of Article 24 and Paragraph 3 (wording of 8 June 2006) of Article 26 of the Law on Territorial Planning (wording of 15 January 2004) (the compliance of Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 with the said paragraph is impugned the petitioner).

Moreover, according to the representative of the Government, one should distinguish between the cases where nature is harmed by illegal actions, and where forest land is converted into other landed property in line with the procedure defined in legal acts. It is impossible to state that, after forest is converted into other landed property, the object as a valuable ceases to exist, because land for agricultural purposes (meadow, ploughland) also constitutes a valuable, and, having converted the purpose of land from one type to another, one satisfies the interests related to obtaining a residential space and development of economic activity. The existing legal regulation guarantees a balance and possibility of living in a harmonious and well-balanced environment.

5. R. Klovas and E. Izokaitytė, representatives of the Government, a party concerned, submitted written explanations in which they basically consented to the explanations of A. Murauskaitė.

IV

At the Constitutional Court’s hearing, A. Stancikienė, a member of the Seimas, D. Karvelis, N. Azguridienė, D. Petrauskaitė, representatives of the Seimas, a party concerned, as well as R. Klovas and E. Izokaitytė, representatives of the Government, a party concerned, virtually reiterated the arguments set forth in their written explanations and answered the questions given by the justices of the Constitutional Court as well as presented additional explanations.

The Constitutional Court

holds that:

I

1. Although the Vilnius Regional Administrative Court, the petitioner, requests, inter alia (petitions Nos. 1B-08/2007, 1B-17/2007, and 1B-21/2008), an investigation into whether Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) is not in conflict with the Constitution to the extent that, according to the petitioner, it does not prescribe that detailed plans, under which the main targeted purpose of utilisation of land is converted from forestry land into land for other purposes, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, however, it is obvious from the argumentation of the petition and the material of the cases that it has doubts as to whether Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) is not in conflict with the Constitution to the extent that, according to the petitioner, it does not prescribe that detailed plans, under which the main targeted purpose of utilisation of land is converted from forestry land into land for other purposes meant for the construction of structures, are drafted, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof.

2. Although the Vilnius Regional Administrative Court, the petitioner, requests, inter alia (petitions Nos. 1B-08/2007, 1B-17/2007, and 1B-21/2008), an investigation into whether Item 7.2 (wording of 15 January 2004) of the Description as approved by government resolution No. 635 of 26 May 2004 to the extent that, according to the petitioner, it does not define that the rights and obligations of the organiser of detailed territorial planning may be transferred and the contract may be concluded, as well as the main targeted land utilisation purpose may be converted from forestry land into land for other purposes—the construction of structures or development of other activity—where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof (cities, towns), is not in conflict with the Constitution and laws (articles and paragraphs thereof), however, it is obvious from the argumentation of the petitions and the material of the cases that it has doubts as to whether Item 7.2 (wording of 15 January 2007) of the Description is not in conflict with the Constitution and the laws (articles and paragraphs thereof) to the extent that, according to the petitioner, the Description does not stipulate that the rights and obligations of the organiser of detailed territorial planning may be transferred and the contract may be concluded, as well as the main targeted land utilisation purpose may be converted from forestry land into land for other purposes—the construction of structures—where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof.

3. The Vilnius Regional Administrative Court, the petitioner, requests, inter alia (petitions Nos. 1B-08/2007, 1B-17/2007, and 1B-21/2008), an investigation into whether Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002, which provides: “7.4. In the forests of groups III and IV, which are not listed in Items 7.1 and 7.2 of the Procedure, forest land may be converted into other landed property even in the absence of general plans of the territory of a municipality or parts of the territory of a municipality, drafted and approved upon the procedure defined in the Republic of Lithuania’s Law on Territorial Planning, or in the absence of special documents on planning—projects of forest management;”, was not in conflict with the Constitution and laws (articles and paragraphs thereof).

It should be noted that on 27 February 2007, the Government adopted the Resolution (No. 238) “On Amending the Resolution of the Government or the Republic of Lithuania (No. 641) ‘On the Approval of the Procedure for Converting Forest Land into Other Landed Property’ of 9 May 2002” (hereinafter also referred to as government resolution No. 238 of 27 February 2007) (which came into force on 11 March 2007), in Item 1 of which it decided to amend government resolution No. 641 of 9 May 2002 and to set it forth in its new wording; alongside, the title of the legal act, which was approved by this resolution, was amended and it was given the following title: The Description of Procedure for Converting Forest Land into Other Landed Property (hereinafter referred to as the Description of Procedure). In Item 6.3 of the Description of Procedure (wording of 27 February 2007) it was, inter alia, prescribed: “6.3. <...> In the forests of groups III and IV, which are not listed in Items 6.1 and 6.2 of the Description, forest land may be converted into other landed property where this is provided for in the general plans of the territory of a municipality or parts of the territory of a municipality, which are drafted and approved upon the procedure defined in the Republic of Lithuania’s Law on Territorial Planning. <...>;”.

Having compared the legal regulation which is set forth in Item 7.4 of the Procedure with the one set forth in Item 6.3 of the Description of Procedure (wording of 27 February 2007), one can notice that it became different in essence: according to the previous legal regulation established in Item 7.4, it was allowed to convert forest land into other landed property even in the absence of general plans of the territory of a municipality or parts of the territory of a municipality, which are drafted and approved upon the procedure defined in the Law on Territorial Planning, or in the absence of special documents on planning—projects of forest management. Meanwhile, pursuant to the legal regulation which is set forth in Item 6.3, it may be done only in the event that this is provided for in the general plans of the territory of a municipality or parts of the territory of a municipality, which are drafted and approved upon the procedure defined in the Law on Territorial Planning.

Thus, the provision of Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 is not valid at present.

Pursuant to Paragraph 4 of Article 69 of the Law on the Constitutional Court, the annulment of the impugned legal act shall be grounds to adopt a decision to dismiss the instituted legal proceedings. The Constitutional Court has held that this can be said also about the situations, when the impugned legal act (part thereof) was not repealed, however, the legal regulation established in it was changed (the Constitutional Court’s ruling of 4 March 2003, its decisions of 14 March 2006 (cases Nos. 3/05 and 14/03), its rulings of 30 March 2006, 14 April 2006 and 21 September 2006, as well as its decision of 28 May 2007)

However, as it was held in the jurisprudence of the Constitutional Court more than once, when a court investigating a case applies to the Constitutional Court after it has doubts concerning the compliance of a law or another legal act applicable in the case with the Constitution (another legal act of higher legal force), the Constitutional Court has the duty to investigate the request of the court regardless of the fact whether the impugned law or other legal act is valid or not.

4. The petitioner requests an investigation, inter alia, into whether Item 7.2 (wording of 15 January 2007) of the Description as approved by government resolution No. 635 of 26 May 2004, to the indicated extent is not in conflict (petitions Nos. 1B-08/2007, 1B-17/2007), and whether Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002, was not in conflict (petitions Nos. 1B-08/2007, 1B-17/2007 and 1B-21/2008) with Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), however, it is obvious from the argumentation of the petitions and the material of the cases that it has doubts concerning the compliance of Item 7.2 of the Description (wording of 15 January 2007) to the indicated extent, and of Item 7.4 of the Procedure with not entire Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), but solely with the provision of this paragraph “Detailed plans may not be drafted in the event that the objectives of planning are in conflict with the requirements of laws and other legal acts”.

5. Thus, in this constitutional justice case the Vilnius Regional Administrative Court, the petitioner, has doubts as to whether:

Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) to the extent that, according to the petitioner, it does not prescribe that detailed plans, under which the main targeted purpose of utilisation of land is converted from forestry land into land for other purposes intended for construction, are drafted, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is not in conflict with Paragraph 3 of Article 46 and Paragraph 1 of Article 54 of the Constitution and the constitutional principle of a state under the rule of law (petitions Nos. 1B-08/2007, 1B-17/2007 and 1B-21/2008),

Item 7.2 (wording of 15 January 2007) of the Description as approved by government resolution No. 635 of 26 May 2004, to the extent that, according to the petitioner, it does not stipulate that the rights and obligations of the organiser of detailed territorial planning may be transferred and the contract may be concluded, as well as the main targeted purpose of utilisation of land may be converted from forestry land into land for other purposes meant for the construction of structures, if such conversion is provided for in general plans as well as special plans of a municipality or part thereof, is not in conflict with Paragraph 3 of Article 46, Paragraph 1 of Article 54 of the Constitution, the constitutional principle of a state under the rule of law, the provision “Detailed plans may not be drafted in the event that the objectives of planning are in conflict with the requirements of laws and other legal acts” of Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), as well as Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) (petitions Nos. 1B-08/2007 and 1B-17/2007).

Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 was not in conflict with Article 54 of the Constitution, the constitutional principle of a state under the rule of law, Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001), the provision “Detailed plans may not be drafted in the event that the objectives of planning are in conflict with the requirements of laws and other legal acts” of Paragraph 4 (wording of 8 June 2006) of Article 24 and Paragraph 3 (wording of 8 June 2006) of Article 26 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) (petitions Nos. 1B-08/2007, 1B-17/2007 and 1B-21/2008).

II

1. On 12 December 1995, the Seimas adopted the Law of Territorial Planning which came into force on 1 January 1996. This law regulated the planning of territories of the Republic of Lithuania as well as inter-relations of private persons, legal persons and state institutions in this process (Article 1).

Pursuant to Article 16 of the Law of Territorial Planning (wording of 12 December 1995), organisers of detailed planning where: 1) owners of land, 2) users of land, 3) possessors of state-owned land, 4) municipal boards (mayors). According to Paragraph 2 of Article 17 of this law, the owners, possessors and users of land holdings and forest holdings or owners of their groups, as well as municipalities (according to the functional purpose of lots) had to draft detailed plans only when the intended activity was, inter alia, construction, reconstruction or demolition, converting the main targeted purpose of utilisation of land, establishing or converting building-up regime, and that of the purpose of buildings or structures.

In this context, it should be noted that Paragraph 3 of Article 5 of the Law on Land (wording of 26 April 1994) prescribed that, according to the main targeted purpose of land utilisation, the stock of land of the Republic of Lithuania consisted, inter alia, of land for agricultural purposes, land for forestry purposes, and land for other purposes. Later the Law on Land (wording of 26 April 1994) has been amended and/or supplemented more than once, however, the legal regulation, according to which the stock of land of the Republic of Lithuania consisted, inter alia, of land for agricultural purposes, land for forestry purposes, and land for other purposes, remained unchanged.

2. Thus, pursuant to the legal regulation established in the Law on Territorial Planning (wording of 12 December 1995 with subsequent amendments and supplements), which was effective till 1 May 2004:

the conditions of drafting detailed plans, when the main targeted purpose of land utilisation was changed, were the same for the land of any targeted purpose of utilisation;

when the main targeted purpose of land utilisation (inter alia, of land for agriculture and forestry) was converted (inter alia, into land for other purposes—the construction of structures), it was the owners of the land, the users of the land, the possessors of the state-owned land, and the municipal boards (mayors) who were organisers of detailed planning. According to the legal regulation, that was effective at that moment, it was not provided that contracts are concluded on transfer of rights and obligations of the organiser of detailed territorial planning.

3. The Law on Territorial Planning (wording of 12 December 1995) was amended and supplemented more than once, inter alia, Paragraph 2 of Article 17 of the Law on Territorial Planning was amended and set forth in its new wording by Paragraph 1 of Article 5 of the Republic of Lithuania’s Law on Amending and Supplementing Articles 2, 4, 9, 14, 17, 20, 21, 22, 23, 24, 26 and 32 of the Law on Territorial Planning which was adopted by the Seimas on 12 October 2000 (it came into force on 31 October 2000), however, the legal regulation remained unchanged in the aspect that when the main targeted purpose of land utilisation was converted, conditions of drafting detailed plans were the same for the land of any designation; when the main targeted purpose of land utilisation (inter alia, of land for agriculture and forestry) was converted (inter alia, into land for other purposes—the construction of structures), it was the owners of the land, the users of the land, the possessors of the state-owned land, and the municipal boards (mayors) who were organisers of detailed planning.

4. On 15 January 2004, the Seimas adopted the Republic of Lithuania’s Law on Amending the Law on Territorial Planning, which came into force (except Articles 2 and 3 thereof) as from 1 May 2004 (Article 4 of the law). By Article 1 of the law, the Law on Territorial Planning (wording of 12 December 1995 with subsequent amendments and supplements) was set forth in its new wording, and Article 3 provided that “municipalities <...> draft general plans of the territories of municipalities or parts thereof till 31 December 2007”.

According to Article 20 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), it is the director of the administration of a municipality and the possessors of state-owned land who are the organisers of detailed territorial planning (Paragraph 1); upon the procedure defined by the Government, and in the cases and under conditions defined by the latter, municipality could conclude a contract on transfer of rights and obligations of the organiser of the detailed planning to the owner, possessor or user of land (Paragraph 2). Under Paragraph 1 of Article 22 of this law, inter alia, detail plans were drafted when the main targeted purpose of the utilisation of land was converted into that of construction of structures (Item 3).

5. In the context of the constitutional justice case at issue, having compared the legal regulation which is established in the Law on Territorial Planning (wording of 15 January 2004) with the one established in the Law on Territorial Planning (wording of 12 December 1995 with subsequent amendments and supplements made till 1 May 2004), it becomes obvious that:

the conditions of drafting of the detailed plans, when converting the main targeted purpose of land utilisation, were the same for the land of any purpose;

the legal regulation changed in the way, so that it did not provide that land users are the organisers of detailed planning, it was prescribed that the director of the administration of a municipality instead the municipal board (mayor) becomes the organiser of the detailed planning;

the Law on Territorial Planning (wording of 15 January 2004) already consolidated an opportunity to conclude a contract on transfer of rights and obligations of the organiser of detailed territorial planning.

6. On 28 September 2004, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 4, 12, 15, 22 and 24 of the Law on Territorial Planning, which came into force on 16 October 2004.

By Article 2 of Paragraph 4 of this law amendments were made to Paragraph 6 of Article 22 “Drafting Detailed Plans” of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) and it was set forth as follows:

6. The detailed plans that convert the main targeted purpose of land utilisation from land for agricultural purposes into land for other purposes shall be drafted if such conversion is provided for in the general plans as well as in special plans of a municipality or part thereof. In the event that general or special plans have not been drafted, only the director of the administration of a municipality or the possessor of the state-owned land may be the organiser of the drafting of the detailed plans.”

In this context it should be mentioned that at the time when Paragraph 6 (wording of 28 September 2004) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) came into force, according to Article 20 of this law, as already mentioned, the director of the administration of a municipality or the possessor of the state-owned land were the organisers of the drafting of the detailed plans (Paragraph 1); upon the procedure, in the events and under conditions defined by the Government, the municipality could conclude a contract on transfer of rights and obligations of the organiser of detailed territorial planning to the owner, possessor or user of the land (Paragraph 2); according to Paragraph 1 of Article 22 of this law, inter alia, detailed plans were drafted when the main targeted purpose of land utilisation was converted into land for the construction of structures (Item 3); according to Paragraph 1 (wording of 28 September 2004) of Article 24, the drafting of detailed plans when forming land lots for blocks or groups of residential houses (more than 3 residential houses) was only possible when this was provided for in the general plans of the territory of a municipality or part thereof, or in special plans of protected territories or their zones, and arrangement of residential territories.

7. In the context of the constitutional justice case at issue, when construing the legal regulation established in Paragraph 6 (wording of 28 September 2004) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), together with the one established in Paragraph 1 (wording of 15 January 2004) of Article 22 of the same law, it should be noted that this legal regulation is related to the drafting of the detailed plans by which the main targeted purpose of land utilisation is converted from agricultural land into land for other purposes (inter alia, the construction of structures) is changed:

when converting the main targeted purpose of land utilisation, if such conversion from agricultural land (as well as from land for any other purpose) to land for other purposes (inter alia, for the construction of structures) was provided for in the general plans as well as in special plans of a municipality or part thereof, it was the director of the administration of a municipality and the possessors of state-owned land who were the organisers of detailed planning. The municipality, upon the procedure, in the cases and under conditions established by the Government, could conclude a contract on transfer of rights and obligations of the organiser of detailed territorial planning to the owner, possessor or user of the land;

when converting the main targeted purpose of utilisation of land from agricultural land into land for other purposes (inter alia, the construction of structures) in the event that general or special plans of a municipality have not been drafted, it was only the director of the administration of a municipality or the possessor of state-owned land who could become the organisers of detailed planning;

the drafting of detailed plans when forming land lots for blocks or groups (more than 3 residential houses) of residential houses was only possible when this was provided for in the general plans of the territory of a municipality or part thereof, as well as in special plans of protected territories or their zones, and arrangement of residential territories.

8. On 8 June 2006, the Seimas adopted the Republic of Lithuania’s Law on Amending and Supplementing Articles 1, 2, 7, 10, 12, 15, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 34, 35 and 36 of the Law on Territorial Planning, which came into force on 13 June 2006. By Paragraph 2 of Article 11 of this law one amended Paragraph 6 (wording of 28 September 2004) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) and set it fort in its new wording. Paragraph 6 (wording of 8 June 2006) of Article 22 “Drafting Detailed Plans” of the said law, to the indicated extent is impugned by the petitioner, provides:

6. The detailed plans, which convert the main targeted purpose of land utilisation from agricultural land into land for other purposes shall be drafted if such conversion is provided for in the general plans as well as in special plans of a municipality or part thereof. In the event that general or special plans have not been drafted it is only the director of the administration of a municipality or the possessor of the state-owned land, who may be the organiser of the drafting of the detailed plans. Where the possessor or user of land intends to convert the main targeted purpose of land utilisation from agricultural land into land for other purposes, in which construction of important objects of municipal infrastructure (except residential houses) is planned, by 31 December 2007, when general plans of the territories of municipalities or parts thereof (cities, towns) must be drafted, the director of the administration of a municipality, in the presence of a decision of the municipal council and consent of the chief of the county, upon the procedure defined by the Government concludes a contract on transfer of rights and obligations of the organiser of detailed territorial planning to the possessor or user of the land.”

In the context of the constitutional justice case at issue it should be noted that it becomes obvious from both Article 3 of the aforementioned Law on Amending the Law on Territorial Planning and Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) that general plans of the territories of municipalities and parts thereof (towns and cities) had to be drafted by 31 December 2007.

Having compared the legal regulation established in Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning with the one established in Paragraph 6 (wording of 28 September 2004) of Article 22 of the said law, it becomes obvious that Paragraph 6 (wording of 28 September 2004) of Article 22 of this law was supplemented with a new provision, according to which the director of the administration of a municipality, upon the procedure established by the Government, could conclude a contract on transfer of rights and obligations of the organiser of detailed territorial planning to the possessor or user of the land, if a decision of the municipal council was adopted on such transfer of rights and obligations and the chief of the county gave his consent. Such rights and obligations could be transferred only in the event that the possessor or user of the land decided to convert the main targeted purpose of land utilisation from agricultural land into land for other purposes (inter alia, for the construction of structures), in which it was planned to build significant objects of municipal infrastructure (except residential houses), by 31 December 2007, when general plans of the territories of municipalities or parts thereof (cities, towns) had to be drafted.

Article 22 (wording of 8 June 2006) of the Law on Territorial Planning was amended, however, its Paragraph 6 has not been amended and/or supplemented.

9. It has been mentioned that the petitioner impugns the compliance of Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) with the Constitution to the extent that, according to the petitioner, this paragraph does not prescribe that the detailed plans converting the main targeted purpose of land utilisation from forestry land into land for other purposes—the construction of structures—are drafted, if such conversion is provided for in the general plans as well as in special plans of the municipality or part thereof. According to the petitioner, such legal regulation is in conflict with the Constitution, since forestry land enjoys less protection than agricultural land.

It should be noted that the relations linked to the conversion of the main targeted purpose of land utilisation are regulated not only by the Law on Territorial Planning, but inter alia by the Law on Land and the Law on Forests, as well.

10. In the context of the constitutional case at issue, the following provisions of the Law on Land (wording of 27 January 2004) should be mentioned:

according to Item 10 of Article 2, landed property is areas of land differing from other areas by their characteristic natural properties or peculiarities of economic utilisation;

Paragraph 2 of Article 3 provides that, according to the main targeted land utilisation purpose, the stock of land of the Republic of Lithuania consists of: 1) land for agricultural purposes, 2) land for forestry purposes, 3) land for conservation purposes, and 4) land for other purposes;

according to Article 24, the main targeted purpose of land utilisation shall be set upon the procedure defined by the Government when forming new land lots; the main targeted purpose of land utilisation established for such land lots shall be converted upon application of owners of land, trustees of state-owned land or other subjects in cases defined in the laws, in line with detailed or special documents on territorial planning (Paragraph 1); land owners may utilise the land for the purpose other than established at the moment of acquisition of the land into their ownership only in the event that the chief of the county adopts a decision to convert the main targeted purpose of land utilisation (Paragraph 2).

11. Summing up the aforementioned provisions of the Law on Land (wording of 27 January 2004 with subsequent amendments and/or supplements) in the context of the constitutional justice case at issue, it should be held that, according to the main targeted purpose of land utilisation the stock of land of the Republic of Lithuania consists, inter alia, of land for agricultural purposes, land for forestry purposes and land for other purposes; the established main targeted purpose of land utilisation is converted according to detailed or special documents of territorial planning.

In this context it should be noted that, according to Paragraph 4 of Article 26 of the Law on Land (wording of 27 January 2004 with subsequent amendments and/or supplements) reforestation in land for forestry purposes, as well as protection and utilisation of forest resources, is established by the Law on Forests.

12. In the context of the constitutional justice case at issue one should note the following provisions of the Law on Forests (wording of 10 April 2001 with subsequent amendments and/or supplements):

the purpose of the Law on Forests (wording of 10 April 2001) is to regulate reforestation, protection and utilisation, and to create legal preconditions for administering forests of all forms of ownership according to unified principles of stable and well-balanced forestry, by ensuring a rational utilisation of forest resources when supplying industry with raw material, the preservation of biological variety, an increase in the productivity of forests, the stability of landscape and the quality of environment, the possibility of discharging ecological, economic and social functions at present and in the future without harm to other eco-systems (Article 1);

forest is a tract of land the area of which is not less than 0.1 ha, covered by trees, the adult height of which in their growth place reaches not less than 5 meters, other forest vegetation, including sparse area or area that lost vegetation due to human activity or natural causes (cutting areas, burned areas, clearings). Clusters of trees in fields, by roadsides, water bodies, within towns and rural settlements, as well as cemeteries, narrow—up to 10 metres in width—tree belts, hedges, single trees and shrubs, as well as parks planted by man, which are situated within towns and rural settlements, shall not be considered to be forest. The procedure of care, protection and utilisation of the said planted areas shall be established by the Ministry of Environment (Paragraph 1 of Article 2);

forest land is land covered with forest (stands) or not covered with forest (cutting areas, perished stands, forest clearings, arboreta, nurseries, forest seed plantations, as well as raw shrubbery and plantations). Also to be rated as forest land are forest roads, forest compartment lines, technological and fire-prevention belts, piling places and areas taken up by facilities related to forest, rest spots, points for feeding wild animals, as well as land allocated for afforestation (Paragraph 3 of Article 2);

according to the purposes of forestry, the regime of forestry and the main functional mission, forests were and are divided into forest reservations (I group), special purpose forests (ecosystem preserving forests and recreational forests) (II group), protective forests (III group), as well as commercial forests (IV group) (Article 3 (wordings of 10 April 2001 and 26 June 2007));

forest land may be converted into other landed property only in exceptional cases, striking a balance between the interests of the state, the forest owner and society, and in the manner prescribed by the Government (Paragraph 1 of Article 11); forest cutting to meet technological and production needs for forestry (to establish seed-plots, to build roads related to forestry, to construct fire prevention-belts, technological strips, recreation areas and timber landings, in the established manner to dig gravel and sand for economic needs, etc.) shall not be considered to be forest land conversion (Paragraph 2 of Article 11).

13. Summing up the said provisions entrenched in the Law on Forests (wording of 10 April 2001 with subsequent amendments and/or supplements), the following conclusions should be drawn:

the Law on Forests (wording of 10 April 2001 with subsequent amendments and/or supplements) establishes what landed property is recognised as forest land;

according to the purposes of forestry, the regime of forestry and the main functional mission were and are divided into reservation forest (I group), special purpose forests (ecosystem preserving forests and recreational forests) (II group), protective forests (III group), as well as commercial forests (IV group);

Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) consolidates two provisions: first, forest land may be converted into other landed property only in exceptional cases; second, when transferring forest land into other landed property, a balance should be kept between the interests of the state, the forest owner and society, and this should be done upon the procedure established by the Government;

having established the legal regulation both in Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) and in other articles of this law, one does not set the cases of converting forest land into other landed property that should be treated as exceptional or/and the criteria, according to which such cases would be defined.

14. On 9 May 2002, the Government adopted the Resolution (No. 641) “On the Approval of the Procedure for Converting Forest Land into Other Landed Property”, which came into force on 15 May 2002, by Item 1 of which it approved the Procedure for Converting Forest Land into Other Landed Property, the compliance of Item 7.4 of which with the Constitution and the laws is impugned by the petitioner in this constitutional justice case.

14.1. Pursuant to Item 1 of the Procedure, forest land could be transferred into other landed property only in exceptional cases, striking a balance between the interests of the state, the forest owner and society; these interests are balanced when drafting documents on territorial planning and in the course of conducting the public discussion upon the procedure set forth in the Government Resolution (No. 1079) “On the Approval of Regulations Related to Discussing with the Society Draft Documents on Territorial Planning” of 18 September 1996.

On 18 September 1996, the Government adopted Resolution (No. 1079) “On the Approval of the Regulations Related to Discussing About Draft Documents on Territorial Planning with Society”, which came into force on 26 September 1996, by Item 1 whereof it approved the Regulations Related to Discussing About Draft Documents on Territorial Planning with Society (hereinafter referred to as the Regulations). In the context of the constitutional case at issue it should be noted that, according to the Regulations, a public discussion, inter alia, coordination, had to be conducted upon the procedure established in the Regulations, while following the principle of publicity of drafting documents on planning. The Regulations have been amended more than once, however, the said provision remained unchanged.

14.2. Item 7 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002, inter alia, prescribed:

7. Forest land shall be transferred into other landed property and the main targeted purpose of utilisation of forest land shall be converted according to the following requirements:

7.1. it shall be prohibited to transfer forest land into other landed property in the forests of group I, those of group II—ecosystem preserving forests, those of group III—forests of reservations and other forests, located within one kilometre from the Baltic Sea and Curonian Lagoon, the coastal protection zones of surface water bodies, sub-zones of physical protection of objects of heritage;

7.2. in the forests of group II—recreation forests—as well as forests of group III and IV which are located in the protected territories that are not listed in Item 7.1. of the procedure, one may convert forest land into other landed property only for the purposes related to protection, care and recreational utilisation of the protected territories, if this is provided for in the documents on the planning of protected territories;

7.3. in the forests of group II—recreation forests—not listed in Items 7.1 and 7.2 of the Procedure, forest land may be converted into other landed property if this is provided for in the general plans of the territory of a municipality or parts of the territory of a municipality or special documents on planning—projects of forest or land management—which are drafted and approved upon the procedure established in the Republic of Lithuania’s Law on Territorial Planning;

7.4. in the forests of groups III and IV, which are not listed in Items 7.1 and 7.2 of the Procedure, forest land may be converted into other landed property even in the absence of general plans of the territory of a municipality or parts of the territory of a municipality or special documents on planning—projects of forest or land management—which are drafted and approved upon the procedure established in the Republic of Lithuania’s Law on Territorial Planning;

7.5. forest land may be converted into other landed property only when documents on territorial planning, as listed in Items 7.2 and 7.3 of the Procedure (if any are necessary), are approved and detailed plans are drafted and <…> approved upon the established procedure.”

14.3. According to Item 8 of the Procedure, priority in the course of converting to other landed property is given to the forest land, which is not covered with forest (clearings, perished stands, cutting areas), as well as areas covered with stands comprising soft deciduous trees that are of low efficiency and are damaged by natural disaster or are sparse due to other reasons; in all cases one had to take account of the importance of forest in view of environment protection.

15. Summing up the provisions of the Regulations as approved by government resolution No. 1079 of 18 September 1996, and the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002, the following conclusions should be drawn:

pursuant to the Regulations (wording of 18 September 1996 with subsequent amendments) as approved by Government resolution No. 1079 of 18 September 1996, the public discussion, inter alia, coordination, had to be conducted upon the procedure established in the Regulations and in line with the principle of publicity of drafting the documents on territorial planning;

Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002, established the legal regulation, according to which forest land located in forests of group III (protective forests), where these forests were not considered to be forests of reservations and other forests, located within one kilometre from the Baltic Sea and Curonian Lagoon, the coastal protection zones of surface water bodies, sub-zones of physical protection of objects of heritage, as well as in the forests of group III (protection forests) and group IV (economic forests) and provided these forests were not situated in protected territories, could be converted into other landed property even in the absence of general plans of the territory of a municipality or parts of the territory of a municipality or special documents on planning—projects of forest management—which were drafted and approved upon the procedure established in the Law on Territorial Planning.

16. In the context of the constitutional justice case at issue the following provisions of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) were mentioned:

a general plan is a document of complex planning of territories, in which, having considered the levels and tasks of territorial planning, one establishes the spatial concept of development of the territory to be planned and principles of utilisation and protection of the territory (Paragraph 1 of Article 2 (wording of 8 June 2006));

documents of general planning of territories are: 1) general (master) plan of the territory of the state; 2) general (master) plan of the territory of a county, 3) general plan of the territory of a municipality, 4) general plan of the territory of a part of a municipality (city or town) (Paragraph 2 of Article 9). General plans are compulsory to all owners, possessors or users of real estate located within the territory subject to planning (Paragraph 2 of Article 9);

a special plan (project) is a document of territorial planning, which, having taken into account the levels and objectives of territorial planning, sets forth the trends, measures and requirements of the development, infrastructure management and/or protection of the territories that are necessary for individual spheres of activity (Paragraph 27 of Article 2 (wording of 8 June 2006));

objects of special planning comprise, inter alia, land for agricultural purposes and forest land (Paragraph 1 of Article 13);

according to Paragraph 1 (wording of 8 June 2006) of Article 15, documents of special territorial planning comprise, inter alia, schemes of forest management;

a detailed plan is a document on territorial planning, which sets forth boundaries of land lots, the regime of management and utilisation of territory (compulsory conditions for construction and other activity) (Paragraph 3 of Article 2 (wording of 8 June 2006));

objects of detailed territorial planning are as follows: 1) parts of territories of cities, towns, 2) territories of villages, 3) a land lot and groups of lots (Paragraph 1 of Article 19);

as mentioned before, according to Paragraph 1 of Article 20, the organisers of detailed territorial planning are the director of the administration of a municipality and possessors of state-owned land, and, according to Paragraph 2 (wording of 8 June 2006) of the same article, a municipality, upon the procedure, in cases and under conditions established by the Government, may conclude a contract on transfer of rights and obligations of the organiser of detailed territorial planning to the possessor or user of the land lot;

as mentioned before, according to Paragraph 1 of Article 22, inter alia, detailed plans are drafted when the main targeted purpose of utilisation of land is converted into land for the construction of structures (Item 3);

one may draft detailed plans in the course of forming land lots for contraction of residential houses and buildings or structures meant for other purposes only in the event that construction is provided for in general plans of the territory of a municipality or part thereof or in special plans of arrangement of protected territories or their zones, protected objects of heritage, as well as residential and other territories. Where general plans are not drafted by 31 December 2007, when general plans of the territories of municipalities and parts thereof (cities, towns) must be ready, it is permitted to draft detailed plans for the construction of important objects of municipal infrastructure (except residential houses) under decision of the municipal council and upon the consent of the head of the county (Paragraph 1 (wording of 8 June 2006) of Article 24);

inter alia, detailed plans may not be drafted if the objectives of planning are in conflict with requirements of laws and other legal acts (Paragraph 4 (wording of 8 June 2006) of Article 24);

solutions of the detailed plan must not be in conflict with special requirements on land utilisation, which are set forth in the laws, Government resolutions, valid solutions of general plans of the territory of a municipality and its parts, as well as special plans (except land management projects under land reform, the solutions of which are replaced by the detailed plans), and other legal acts (Paragraph 3 (wording of 8 June 2006) of Article 26).

17. To sum up the indicated provisions of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), in the context of the constitutional justice case at issue the following conclusions should be drawn:

this law regulates the relations linked to drafting detailed plans, inter alia, when the main targeted purpose of land utilisation is converted into land for other purposes—the construction of structures; it sets forth conditions for drafting such detailed plans and cases, where municipality may conclude a contract on transfer of rights and obligations of the organiser of detailed territorial planning to the owner, possessor or user of the land;

detailed plans, inter alia, when the main targeted purpose of land utilisation is converted into land for other purposes—the construction of structures—inter alia, may not be drafted: if construction is not provided for in general plans of the territory of a municipality or part thereof, or in special plans of arrangement of protected territories or their zones, protected objects of heritage, as well as residential and other territories (except cases, where, under a decision of the municipal council and upon the consent of the chief of the county, one could draft detailed plans for the construction of important objects of municipal infrastructure (except residential houses), if general plans have not been drafted by 31 December 2007); if the objectives of planning are in conflict with requirements of laws and other legal acts;

in the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), in the course of regulating the relations where the main targeted purpose of land utilisation is converted into land for other purposes (inter alia, for the construction of structures), alongside with general legal regulation, Paragraph 6 (wording of 8 June 2006) of Article 22 of this law establishes a separate, special legal regulation designated for drafting detailed plans under which the main targeted purpose of land utilisation is converted from agricultural land into land for other purposes (inter alia, for the construction of structures); moreover, it establishes as to who may become the organiser of detailed territorial planning, in what cases and under what conditions in the course of drafting the aforementioned detailed plans one may conclude a contract on transfer of the rights and obligations of the organiser of detailed territorial planning to the possessor or user of the land lots.

18. Having assessed the legal regulation entrenched in the provisions of the Law on Land (wording of 27 January 2004 with subsequent amendments and/or supplements), the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), and the Law on Forests (wording of 10 April 2001 with subsequent amendments and supplements), in the context of the constitutional justice case at issue, the following conclusions should be drawn.

18.1. In the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), when regulating relations where the main targeted purpose of land utilisation is converted into land for other purposes (inter alia, for the construction of structures), alongside with general legal regulation, Paragraph 6 (wording of 8 June 2006) of Article 22 of this law establishes a separate, special legal regulation, designated for drafting detailed plans, under which the main targeted purpose of land utilisation is converted from land for agricultural purposes into land for other purposes (inter alia, for the construction of structures); moreover, it establishes as to who may become the organiser of detailed territorial planning, in what cases and under what conditions in the course of drafting the aforementioned detailed plans one may conclude a contract on transfer of the rights and obligations of the organiser of detailed territorial planning to the possessor or user of the land lots.

18.2. The legal regulation establishing conditions of converting the targeted purpose of land utilisation from forestry land into land for other purposes (inter alia, the land for other purposes—the construction of structures), are set forth not in Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), but in other articles (parts thereof) of this and other laws, inter alia, in Paragraph 2 of Article 20, Item 3 of Paragraph 1 of Article 22, Paragraph 1 of Article 24 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001 with subsequent amendments and/or supplements), and in Paragraph 1 of Article 24 of the Law on Land (wording of 27 January 2004 with subsequent amendments and/or supplements).

III

On the compliance of Item 7.4 of the Procedure for Converting Forest Land into Other Landed Property as approved by Item 1 of the Government Resolution (No. 641) “On the Approval of the Procedure for Converting Forest Land into Other Landed Property” of 9 May 2002 with Article 54 of the Constitution, the constitutional principle of a state under the rule of law, Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001), the provision “Detailed plans may not be drafted in the event that the objectives of planning are in conflict with the requirements of laws and other legal acts” of Paragraph 4 (wording of 8 June 2006) of Article 24 and Paragraph 3 (wording of 8 June 2006) of Article 26 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements).

1. It has been mentioned that, on 9 May 2002, the Government adopted the Resolution (No. 641) “On the Approval of the Procedure for Converting Forest Land into Other Landed Property”, which came into force on 15 May 2002. By this resolution the Government, while following Article 11 of the Law on Forests (wording of 10 April 2001), approved the procedure for converting forest land into other landed property.

2. As mentioned before, Item 7 of the Procedure, inter alia, prescribed:

7. Forest land shall be transferred into other landed property and the main targeted purpose of utilisation of forest land shall be converted according to the following requirements:

7.1. it shall be prohibited to transfer forest land into other landed property in the forests of group I, those of group II—ecosystem preserving forests, those of group III—forests of reservations and other forests, located within one kilometre from the Baltic Sea and Curonian Lagoon, the coastal protection zones of surface water bodies, sub-zones of physical protection of objects of heritage;

7.2. in the forests of group II—recreation forests—as well as forests of group III and IV which are located in the protected territories that are not listed in Item 7.1. of the procedure, one may convert forest land into other landed property only for the purposes related to protection, care and recreational utilisation of the protected territories, if this is provided for in the documents on planning of the protected territories;

7.3. in the forests of group II—recreation forests—not listed in Items 7.1 and 7.2 of the Procedure, forest land may be converted into other landed property if this is provided for in the general plans of the territory of a municipality or parts of the territory of a municipality or special documents on planning—projects of forest or land management—which are drafted and approved upon the procedure established in the Republic of Lithuania’s Law on Territorial Planning;

7.4. in the forests of groups III and IV, which are not listed in Items 7.1 and 7.2 of the Procedure, forest land may be converted into other landed property even in the absence of general plans of the territory of a municipality or parts of the territory of a municipality or special documents on planning—projects of forest or land management—which are drafted and approved upon the procedure established in the Republic of Lithuania’s Law on Territorial Planning;

7.5. forest land may be converted into other landed property only when documents on territorial planning, as listed in Items 7.2 and 7.3 of the Procedure (if any are necessary), are approved and detailed plans are drafted and <…> approved upon the established procedure.”

3. It has also been mentioned that Item 8 of the Procedure prescribed, inter alia, that priority in the course of converting to other landed property is given to the forest land which is not covered with forest (clearings, perished stands, cutting areas) as well as areas covered with stands comprising soft deciduous trees that are of low efficiency and are damaged by natural disaster or are sparse due to other reasons; in all cases one had to take account of the importance of forest in view of environment protection.

4. In the context of the constitutional justice case at issue it should be noted that, as already mentioned, in Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002, the compliance of which with the Constitution and the laws (articles and paragraphs thereof) is impugned by the petitioner, one established the legal regulation according to which the forest land located in the forests of group III (protective forests), where these forests were not categorised as forests of reservations and other forests located within one kilometre from the Baltic Sea and Curonian Lagoon, the coastal protection zones of surface water bodies, the sub-zones of physical protection of objects of heritage, as well as the forest land located in the forests of group III (protection forests) and group IV (economic forests) and these forests were not situated in the protected territories, could be converted into other landed property even in the absence of general plans of the territory of a municipality or parts of the territory of a municipality or special documents on planning—projects of forest management—which were drafted and approved upon the procedure established in the Law on Territorial Planning.

Thus, the Government stipulated that the forest land located in the forests of groups III and IV (save the indicated exceptions) could be converted into other landed property even in the absence of general plans of the territory of a municipality or parts of the territory of a municipality or special documents on planning—projects of forest management—which were drafted and approved upon the procedure established in the Law on Territorial Planning.

5. It has been mentioned that the Government Resolution (No. 641) “On the Approval of the Procedure for Converting Forest Land into Other Landed Property” of 9 May 2002 was adopted on the grounds of Article 11 of the Law on Forests (wording of 10 April 2001), inter alia, Paragraph 1 thereof.

It has also been mentioned that the Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 was not in conflict with the Constitution and the laws (articles and paragraphs thereof), inter alia, Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001).

6. When examining, pursuant to the petitions of the Vilnius Regional Administrative Court, the petitioner, whether the impugned Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 was not in conflict with Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001), one must find out whether Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) is not in conflict with the Constitution.

7. The Constitutional Court has held that, while administering justice, the court must follow only the laws and legal acts that are not in conflict with the Constitution, it may not apply a law, which is in conflict with the Constitution (the Constitutional Court’s rulings of 13 December 2004, 16 January 2006, 27 June 2007, and 2 March 2009). The Constitutional Court also held that a virtually wrong presumption would be made that, purportedly, a substatutory legal act must be in line with an unconstitutional law; such presumption would deny the concept of the hierarchy of legal acts which is entrenched in the Constitution; thus, the essence of constitutional justice itself would be distorted (the Constitutional Court’s rulings of 16 January 2007, 27 June 2007, and 17 December 2007).

One of the major elements of the principle of a state under the rule of law is the requirement not to apply a legal act that is in conflict with a legal act of higher legal force.

8. Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) provides: “1. Forest land may be converted into other landed property only in exceptional cases, striking a balance between the interests of the state, the forest owner and society, and in the manner prescribed by the Government.”

By the aforementioned legal regulation, according to which forest land may be converted into other landed property only in exceptional cases, striking a balance between interests of the state, the forest owner and society, and in the manner prescribed by the Government, one strives, on the one hand, to ensure the protection of the forest as a national valuable of universal importance, and, on the other hand, preconditions are created to restrict ownership rights of forest owners.

9. In its acts the Constitutional Court has held more than once that Article 23 of the Constitution (inter alia, Paragraphs 1 and 2 thereof) consolidates the inviolability and protection of ownership; laws should protect the rights of ownership of all owners, including the state (as the organisation of the entire society) and municipalities.

Moreover, the Constitutional Court has held more than once that ownership performs a social function as well, and that ownership includes obligations.

The Constitutional Court has held also that, under the Constitution, the right of ownership is not absolute, it can be limited by means of a law due to the character of the object of ownership, due to committed deeds, which are contrary to law, and/or due to the need which is necessary to the society and constitutionally grounded; when one limits the rights of ownership, in all cases the following conditions must be followed: it may be limited only by invoking the law; the limitations must be necessary in a democratic society in order to protect the rights and freedoms of other persons, the values established in the Constitution and the objectives which are necessary to society and which are constitutionally grounded; heed must be paid to the principle of proportionality (the Constitutional Court’s rulings of 21 December 2000, 14 March 2002, 19 September 2002, 4 March 2003, 30 September 2003, 13 May 2005, 14 March 2006, 10 April 2009, and 8 June 2009).

In the context of the constitutional justice case at issue it should be noted that forests are special objects of ownership law. According to the Constitution, land, forests, water bodies may belong to various subjects by right of ownership—to the state, municipalities, legal and natural persons. In its ruling of 1 June 1998, the Constitutional Court held that forest is one of the chief natural resources; it is 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 environment: 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; diminishing the negative impact upon the environment, striving for ecological production; efficient and combined utilisation of natural resources, 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. One may legislatively establish a special, exceptional legal regime in regard of forests if compared with other objects (the Constitutional Court’s ruling of 14 March 2006).

10. While construing the provisions, which originate from the Constitution, that ownership includes obligations, and that the right of ownership is not absolute, together with Article 54 of the Constitution, the Constitutional Court has held that all owners, possessors and users of land lots, forests and water bodies, must pay heed to the constitutional imperative of the protection of natural environment and protect the natural environment, not deteriorate its state, and not inflict harm upon the natural environment (the Constitutional Court’s ruling of 14 March 2006); proper and rational use of land, forests and water bodies is a public interest protected by the Constitution (the Constitutional Court’s ruling of 13 May 2005); the state, being under constitutional obligation to act so that the protection of natural environment and of its individual objects, moderate use of natural resources and their restoration and augmentation are guaranteed, may legislatively establish the legal regulation under which the use of individual objects (natural resources) of natural environment be restricted (the Constitutional Court’s rulings of 6 September 2007 and 4 July 2008); a special ecologic, social and economic significance of the forest to the environment and public interests determines certain limitations and restrictions of the right of ownership of the owners of the forest (the Constitutional Court’s rulings of 1 June 1998, 13 May 2005, 14 March 2006 and 6 September 2007). In its ruling of 14 March 2006, the Constitutional Court also held that on the basis of the provision of Paragraph 2 of Article 23 of the Constitution that the rights of ownership shall be protected by law, the provision of Article 54 that the state must take care of the protection of the natural environment, individual objects of nature and especially areas of particular value, as well as other provisions of the Constitution, the conclusion should be drawn that respective measures of protection, including all restrictions of ownership right and freedom of economic activity, and prohibitions, must be established by means of a law.

11. The Constitutional Court has held: the Constitution does not prohibit the grouping of land and other objects of natural environment according to various criteria, inter alia, according to the purpose of their use; this must be done when taking account of characteristics of corresponding natural objects and other factors of natural environment; when regulating the relations in a differentiated manner, which are linked with the ownership and utilisation of land, forests, parks, water bodies, including those that are in areas of particular value, the legislature may class land and other objects of natural environment as certain kinds (categories), establish the legal regime related with such objects, inter alia, the conditions, limitations and prohibitions linked with the ownership, use, economic and other activity; the said limitations and prohibitions must be constitutionally grounded (the Constitutional Court’s rulings of 14 March 2006 and 30 March 2006).

12. The Constitutional Court has also held that it is permitted to make changes in the way land lots are categorised as agricultural land or as land of other purpose (inter alia, after qualitative changes in corresponding resources of land take place); in order to preserve the useful characteristics of agricultural land, the legislature has a duty to establish clear criteria of converting agricultural land into land of other purpose, while in the course of converting the purpose of land one must pay heed to the public interest (the Constitutional Court’s ruling of 30 March 2006); this is also applicable mutatis mutandis when regulating relations linked to converting the designation of land lots as forest land.

Thus, according to the Constitution, the legislature may establish such legal regulation, according to which the categorisation of land lots as land for forestry purposes may be altered, and forest land may be converted into other landed property (inter alia, after qualitative changes in corresponding resources of land take place). Under the Constitution, inter alia, Articles 23 and 54 thereof, the legislature, when regulating relations linked to converting the designation of land lots as land for forestry purposes into land for other purposes, as well as relations linked to converting forest land into other landed property, is obligated to establish clear criteria of converting the designation of land lots as land for forestry into land for other purposes, as well as converting forest land into other landed property. While doing so, one must pay heed to peculiarities of forest as a natural object, general principles of environment protection (inter alia, diminishing negative impact upon environment, efficient and combined utilisation), and the public interest. In this context, it should be noted that the legal regulation where the conversion of land lots of forest land into land for other purposes, as well as the conversion of forest land into other landed property is established by means of a law, may be differentiated, inter alia, by taking account of the forest value, the functional purpose and the impact upon the ecosystem.

13. The Constitutional Court has also held that one of the basic elements of the principle of a state under the rule of law, which is consolidated in the Constitution, is legal certainty and clearness. The imperative of legal certainty and clearness presupposes certain obligatory requirements to legal regulation. Legal regulation must be clear and harmonious, legal norms must be formulated precisely and not contain any ambiguities (the Constitutional Court’s rulings of 30 May 2003, 26 January 2004, and 24 December 2008).

14. In its ruling of 14 March 2006, the Constitutional Court held that when regulating, by means of legal acts, the relations linked with the ownership and utilisation of land, forests, parks and water bodies, as well as those which are in areas of particular value, one must pay heed to the norms and principles of the Constitution, inter alia, the constitutional principle of a state under the rule of law. The Constitutional Court has also held that the constitutional principle of a state under the rule of law implies the hierarchy of all legal acts and does not permit substatutory legal acts to regulate the relations which can be regulated only by law, and does not permit substatutory legal acts to establish any such legal regulation which would compete with that established in the law or which would not be based upon laws (the Constitutional Court’s ruling of 14 March 2006), because, otherwise, the supremacy of laws in respect to substatutory acts, which is established in the Constitution, would be violated (the Constitutional Court’s ruling of 21 August 2002).

15. It has been mentioned that Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) provides: “1. Forest land may be converted into other landed property only in exceptional cases, striking a balance between the interests of the state, the forest owner and society, and in the manner prescribed by the Government.”

It should be noted that, as mentioned before, two provisions are consolidated in Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001): first, forest land may be converted into other landed property only in exceptional cases; second, when converting forest land into other landed property, a balance should be kept between the interests of the state, the forest owner and society, and this should be done upon the procedure established by the Government.

16. It has also been mentioned that in the explanatory provision of Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001), according to which forest land may be converted into other landed property only in exceptional cases, one entrenches a general rule that forest land may not be converted into other landed property; this may be done “only in exceptional cases”.

In the context of the constitutional case at issue, it should be noted that the fact that forest land may be converted into other landed property only in exceptional cases corresponds to a special legal status of forest as a national value of exceptional importance.

Alongside, it should be noted that in the course of consolidation of legal regulation the content of the applied formulation “only in exceptional cases” was disclosed neither Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001), nor other articles of this law. Thus, the meaning of the formulation “only in exceptional cases”, which basically determines the converting of forest land into other landed property, is not defined and is unclear.

It should also be noted that, as mentioned before, in the course of the consolidation of the legal regulation, the cases of converting forest land into other landed property that should be treated as exceptional and/or criteria of defining such cases are set forth neither in Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001), nor in other articles of this law.

In this context, it should be held that the legal regulation entrenched in Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001), according to which the interests of the state, the forest owner and society should be coordinated under the procedure defined by the Government in the course of converting forest land into other landed property, should be regarded as the establishment of certain procedures for coordination of interests; such procedures may not be construed so that, purportedly, the legislature in this way permits setting the cases of converting forest land into other landed property, which should be treated as exceptional.

17. It has been mentioned that the laws must protect the ownership rights of all owners; under the Constitution, the ownership right is not absolute, it may be limited by means of a law due to the character of object of ownership, due to the need which is necessary to the society and constitutionally grounded. It has also been mentioned that forests are special objects of the ownership right; the special ecological, social and economic significance of forest in relation to the environment and the public interests causes certain limitations and restrictions of the ownership rights of forest owners, however, the ownership rights may be limited only on the grounds of a law.

It has also been mentioned that, according to the Constitution, the law may entrench the legal regulation according to which one may convert the purpose of forestry land; according to the Constitution, inter alia, Articles 23 and 54 thereof, when regulating the relations linked to converting the purpose of forestry land, as well as relations linked to converting forest land into other landed property, the legislature has the obligation to establish clear criteria of converting forest land into other landed property; while doing so, one must pay heed to peculiarities of forest as an object of nature, to the general principles of environment protection (inter alia, diminishing a negative impact upon the environment, efficient and combined utilisation of natural resources), as well as to public interest; the legal regulation where one establishes, in a law, the change of designation of land lots as forest land, and converting forest land into other landed property, may be differentiated, inter alia, by paying heed to the forest value, the functional purpose, and the impact upon the ecosystem.

It has also been mentioned that one of the major elements of the principle of a state under the rule of law is legal certainty and legal clearness; the imperative of legal certainty and legal clearness implies certain additional requirements to the legal regulation: it must be clear and harmonious.

It should be held that having failed to establish, in Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001), the cases and/or criteria of converting forest land into other landed property that should be considered exceptional, one deviates from the requirements that originate from Articles 23 and 54 of the Constitution and the constitutional principle of a state under the rule of law.

18. Taking into account the aforementioned arguments, the conclusion should be drawn that Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) to the extent that it does not establish the cases of converting forest land into other landed property which should be considered exceptional cases, and/or that it does not establish any criteria for determining such cases is in conflict with Articles 23 and 54 of the Constitution and the constitutional principle of a state under the rule of law.

19. Having held that Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) to the extent that it does not establish the cases of converting forest land into other landed property which should be considered exceptional cases, and/or that it does not establish any criteria for determining such cases is in conflict with Articles 23 and 54 of the Constitution and the constitutional principle of a state under the rule of law, in this constitutional justice case the Constitutional Court will not examine as to whether Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 was not in conflict with Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001).

Otherwise (if the compliance of Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 with Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) were investigated), the notion of hierarchy of legal acts as entrenched in the Constitution and the principle of the supremacy of the Constitution would be denied, and, in addition, the very essence of constitutional justice would be distorted.

20. It has been mentioned that the Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002, which provides that “in the forests of groups III and IV, which are not listed in Items 7.1 and 7.2 of the Procedure, forest land may be converted into other landed property even in the absence of general plans of the territory of a municipality or parts of the territory of a municipality, drafted and approved upon the procedure defined in the Republic of Lithuania’s Law on Territorial Planning, or in the absence of special documents on planning—projects of forest management” was not in conflict with Article 54 of the Constitution and the constitutional principle of a state under the rule of law.

21. When deciding whether Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 was not in conflict with the Constitution, it should be noted that, as already mentioned, the Government prescribed therein that forest land located in the forests of group III and IV (save the indicated exceptions) could be converted into other landed property even in the absence of general plans of the territory of a municipality or parts of the territory of a municipality, drafted and approved upon the procedure defined in the Law on Territorial Planning, or in the absence of special documents on planning—projects of forest management.

22. It was held in this ruling that:

according to the Constitution, inter alia, Articles 23 and 54 thereof, the legislature, when regulating the relations linked to converting the designation of forestry land, as well as the relations linked to converting forest land into other landed property, is obligated to establish criteria of converting forest land into land for other purposes;

in the course of consolidation of the legal regulation, the cases of converting forest land into other landed property that should be treated as exceptional and/or criteria of defining such cases are set forth neither in Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001), nor in other articles of this law;

when regulating, by law, the legal relations linked to the ownership and utilisation of land, forests, parks, water bodies, including those that are situated in especially valuable locations, one must pay heed to the norms and principles of the Constitution, inter alia, the constitutional principle of a state under the rule of law; the principle of a state under the rule of law implies the hierarchy of all legal acts and does not permit substatutory legal acts to regulate the relations which can be regulated only by law, and does not permit substatutory legal acts to establish any such legal regulation which would compete with that established in the law or which would not be based upon laws, because, otherwise, the supremacy of laws in respect to substatutory acts, which is established in the Constitution, would be violated;

special ecological, social and economic significance of forest in relation to environment and the public interests causes certain limitations and restrictions of the ownership rights of forest owners; when restricting ownership rights the following conditions should be met in all cases: it may be limited only on grounds of law; the restrictions must be necessary in a democratic society in order to preserve the rights and freedoms of other persons, the values that are entrenched in the Constitution, and the constitutionally important objectives that are necessary to the society; the principle of proportionality must be followed.

23. It should be held that by means of Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002, which provides that in the forests of groups III and IV, which are not listed in Items 7.1 and 7.2 of the Procedure, forest land may be converted into other landed property even in the absence of general plans of the territory of a municipality or parts of the territory of a municipality, which are drafted and approved upon the procedure defined in the Law on Territorial Planning, or in the absence of special documents on planning—projects of forest management, i.e. by means of a substatutory act regulated the relations linked to a limitation on the ownership rights of the owner, i.e. the relations which, pursuant to the Constitution, inter alia, Articles 23 and 54 thereof, and the constitutional principle of a state under the rule of law, may be regulated only by means of a law.

24. Taking into account the aforementioned arguments, the conclusion should be drawn that Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 was in conflict with Articles 23 and 54 of the Constitution and the constitutional principle of a state under the rule of law.

25. Having held that Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 was in conflict with Articles 23 and 54 of the Constitution and the constitutional principle of a state under the rule of law, in this constitutional justice case the Constitutional Court will not examine as to whether Item 7.4 of the Procedure as approved by Item 1 of government resolution No. 641 of 9 May 2002 was not in conflict with the provision “Detailed plans may not be drafted in the event that the objectives of planning are in conflict with the requirements of laws and other legal acts” of Paragraph 4 (wording of 8 June 2006) of Article 24, as well as Paragraph 3 (wording of 8 June 2006) of Article 26 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements).

IV

On the compliance of Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) with Paragraph 3 of Article 46, Paragraph 1 of Article 54 of the Constitution, and the constitutional principle of a state under the rule of law.

1. It has been mentioned that the Vilnius Regional Administrative Court, the petitioner, has doubts as to whether Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) to the extent that, according to the petitioner, it does not prescribe that the detailed plans, under which the main targeted purpose of utilisation of land is converted from forestry land into land for other purposes, are drafted, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is not in conflict with Paragraph 3 of Article 46 and Paragraph 1 of Article 54 of the Constitution and the constitutional principle of a state under the rule of law (petitions Nos. 1B-08/2007, 1B-17/2007, and 1B-21/2007).

2. The doubts of the petitioner concerning the compliance of the impugned legal regulation with Paragraph 3 of Article 46 and Paragraph 1 of Article 54 of the Constitution and the constitutional principle of a state under the rule of law are based on the fact, that, according to him, the impugned Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) does not establish the legal regulation, under which the main targeted purpose of land utilisation is converted from forestry land into land for other purposes—the construction of structures—whereas this norm contains the legal regulation whereby the main targeted purpose of land utilisation is converted from agricultural land into land for other purposes—the construction of structures; therefore, according to the petitioner, such legal regulation is in conflict with the Constitution, because land for forestry purposes enjoys less protection than land for agricultural purposes.

3. It has been mentioned that Paragraph 6 (wording of 8 June 2006) of Article 22 “Drafting Detailed Plans” of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), which in this constitutional justice case to the indicated extent is impugned by the petitioner, provides:

6. The detailed plans, which convert the main targeted purpose of land utilisation from agricultural land into land for other purposes shall be drafted if such conversion is provided for in the general plans as well as in special plans of a municipality or part thereof. In the event that general or special plans have not been drafted it is only the director of the administration of a municipality or the possessor of the state-owned land, who may be the organiser of the drafting of the detailed plans. Where the possessor or user of land intends to convert the main targeted purpose of land utilisation from agricultural land into land for other purposes, in which construction of important objects of municipal infrastructure (except residential houses) is planned, by 31 December 2007, when general plans of the territories of municipalities or parts thereof (cities, towns) must be drafted, the director of the administration of a municipality, in the presence of a decision of the municipal council and consent of the chief of the county, upon the procedure defined by the Government concludes a contract on transfer of rights and obligations of the organiser of detailed territorial planning to the possessor or user of the land.”

4. It has also been mentioned that in the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), in the course of regulating the relations where the main targeted purpose of land utilisation is converted into land for other purposes (inter alia, for the construction of structures), alongside with the general legal regulation, Paragraph 6 (wording of 8 June 2006) of Article 22 of this law establishes a separate, special legal regulation designated for drafting detailed plans, under which the main targeted purpose of land utilisation is converted from agricultural land into land for other purposes (inter alia, for the construction of structures); moreover, it establishes as to who may become the organiser of detailed territorial planning, in what cases and under what conditions, in the course of drafting the aforementioned detailed plans, one may conclude a contract on transfer of the rights and obligations of the organiser of detailed territorial planning to the possessor or user of the land lots.

5. It should be noted that, as already mentioned, the legal regulation establishing conditions of converting the targeted purpose of land utilisation from forest land into land for other purposes (inter alia, for the construction of structures), is set forth not in Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), but in other articles (parts thereof) of this and other laws. For example, as already mentioned, the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) provides that “upon the procedure defined by the Government, and in the cases and under conditions defined by the latter, a municipality can conclude a contract on transfer of rights and obligations of the organiser of the detailed planning to the owner, the possessor or the user of land” (Paragraph 2 of Article 20), “detailed plans shall be drafted: <...> 3) when the main targeted purpose of land utilisation is converted into construction of structures <...>” (Item 3 of Paragraph 1 of Article 22), “one may draft detailed plans in the course of forming land lots for the construction of residential houses and buildings or structures meant for other purposes only in the event that construction is provided for in general plans or in special plans of territory of a municipality or part thereof <...>. Where general plans are not drafted by 31 December 2007, <...> one may permit drafting detailed plans for the construction of important objects of municipal infrastructure (except residential houses) under decision of the municipal council and upon the consent of the chief of the county (Paragraph 1 of Article 24); it has also been mentioned that the Law on Forests (wording of 10 April 2001 with subsequent amendments and/or supplements) provides that “forest land may be converted into other landed property only in exceptional cases, while coordinating the interests of the state, the forest owner and society, and in the manner prescribed by the Government” (Paragraph 1 of Article 11); it has also been mentioned that the Law on Land (wording of 27 January 2004 with subsequent amendments and supplements) provides that “the established main targeted purpose of land utilisation is converted <...> according to detailed or special documents of territorial planning” (Paragraph 1 of Article 24).

Thus, it is obvious from the indicated legal regulation that conditions of converting the main targeted land utilisation from forestry land into land for other purposes (inter alia, for the construction of structures) are established not in Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), but in other articles (parts thereof) of this and other laws, inter alia, in Paragraph 2 of Article 20, Item 3 of Paragraph 1 of Article 22, Paragraph 1 of Article 24 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001 with subsequent amendments and/or supplements), and in Paragraph 1 of Article 24 of the Law on Land (wording of 27 January 2004 with subsequent amendments and/or supplements).

6. In this context it should be noted that the petitioner, when requesting an investigation into the compliance of Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) with the Constitution to the extent that, according to the petitioner, it does not prescribe that the detailed plans, under which the main targeted purpose of utilisation of land is converted from forestry land into land for other purposes (for the construction of structures), are drafted, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, challenges, as already mentioned, not the legal regulation entrenched in Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), but the fact that it does not establish something that should have been established; thus, in this case it is the issue of legislative omission that is raised.

7. The Constitutional Court has held that a legal gap, inter alia, legislative omission, always means that the legal regulation of the corresponding social relations is established neither explicitly, nor implicitly, neither in the said legal act (part thereof), nor in any other legal acts, even though there exists a need for legal regulation of these social relations, while the said legal regulation, in case of legislative omission, must be established, while heeding the imperatives of the consistency and inner uniformity of the legal system stemming from the Constitution and taking account of the content of these social relations, precisely in that legal act (precisely in that part thereof), since this is required by a certain legal act of higher legal force, inter alia, the Constitution itself (the Constitutional Court’s decisions of 8 August 2006, 5 November 2008, and its ruling of 2 March 2009).

8. It has been mentioned that the legal regulation establishing the conditions of converting the targeted land utilisation from forestry land (inter alia, into land for other purposes—the construction of structures) is provided for, inter alia, in Paragraph 2 of Article 20, Item 3 of Paragraph 1 of Article 22, Paragraph 1 of Article 24 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001 with subsequent amendments and/or supplements), and in Paragraph 1 of Article 24 of the Law on Land (wording of 27 January 2004 with subsequent amendments and/or supplements).

9. Therefore, there are no legal grounds to state that the legal regulation indicated by the petitioner, whereby the detailed plans under which the main targeted land utilisation purpose is converted from forestry land into land for other purposes—the construction of structures—are drafted, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, ought to be established precisely in Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements).

It means that the legislative omission indicated by the petitioner does not exist in Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements)—there is no such legal gap which is prohibited by the Constitution.

10. It has been held in this ruling of the Constitutional Court that Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) to the extent that it does not establish the cases of converting forest land into other landed property which should be considered exceptional cases, and/or that it does not establish any criteria for determining such cases, is in conflict with the Constitution. Alongside, it should be noted that the mere fact that Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) to the respective extent is ruled to be in conflict with the Constitution, does not mean that the legal regulation indicated by the petitioner had to be established precisely in Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements).

11. Taking into account the aforementioned arguments, the conclusion should be drawn that Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) to the extent that, according to the petitioner, it does not prescribe that detailed plans, under which the main targeted purpose of utilisation of land is converted from forestry land into land for other purposes, are drafted, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is not in conflict with Paragraph 3 of Article 46 and Paragraph 1 of Article 54 of the Constitution and the constitutional principle of a state under the rule of law.

V

On the compliance of Item 7.2 (wording of 15 January 2004) of the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts as approved by the Government Resolution (No. 635) “On the Approval of the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts” of 26 May 2004 with Paragraph 3 of Article 46, Paragraph 1 of Article 54 of the Constitution, the constitutional principle of a state under the rule of law, the provision “Detailed plans may not be drafted in the event that the objectives of planning are in conflict with the requirements of laws and other legal acts” of Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law on Territorial Planning (wording of 15 January 2004), as well as Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001).

1. It has been mentioned that the Vilnius Regional Administrative Court, the petitioner, has doubts as to whether Item 7.2 (wording of 15 January 2004) of the Description as approved by government resolution No. 635 of 26 May 2004, to the extent that, according to the petitioner, it does not define that the rights and obligations of the organiser of detailed territorial planning may be transferred and the contract may be concluded, as well as the main targeted land utilisation purpose may be converted from forestry land into land for other purposes—the construction of structures—where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is not in conflict with Paragraph 3 of Article 46, Paragraph 1 of Article 54 of the Constitution, the constitutional principle of a state under the rule of law, the provision “Detailed plans may not be drafted in the event that the objectives of planning are in conflict with the requirements of laws and other legal acts” of Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), as well as Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) (petitions Nos. 1B-08/2007 and 1B-17/2007).

2. The doubts of the petitioner concerning the compliance of the impugned legal regulation with the Constitution and laws are based on the fact, that, according to him, the impugned Item 7.2 (wording of 15 January 2004) of the Description as approved by government resolution No. 635 of 26 May 2004, to the extent that it does not establish the legal regulation, according to which the rights and obligations of the organiser of detailed territorial planning may be transferred and a contract may be concluded, as well as the main targeted purpose of utilisation of land may be converted from forestry land into land for other purposes—the construction of structures—where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is in conflict with the Constitution and laws, because under the established regulation land for forestry purposes enjoys less protection than land for agricultural purposes.

3. It should be noted that the petitioner, when requesting an investigation into the compliance of Item 7.2 (wording of 15 January 2007) of the Description with Paragraph 3 of Article 46, Paragraph 1 of Article 54 of the Constitution, the constitutional principle of a state under the rule of law, the provision “Detailed plans may not be drafted in the event that the objectives of planning are in conflict with the requirements of laws and other legal acts” of Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), as well as Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001), does not challenge the legal regulation entrenched in Item 7.2 (wording of 15 January 2007) of the Description. Instead, the petitioner challenges the fact that it does not establish something that should have been established, thus, it is the issue of legislative omission that is raised.

4. The Constitutional Court has held that a legal gap always means that the legal regulation of corresponding social relations is established neither explicitly, nor implicitly, neither in the said legal act (part thereof), nor any other legal acts, even though there exists a need for legal regulation of these social relations (the Constitutional Court’s decisions of 8 August 2006, 5 November 2008, and its ruling of 2 March 2009).

5. On 26 May 2004, pursuant to Paragraph 2 of Article 20 of the Law on Territorial Planning, the Government adopted the Resolution (No. 635) “On the Approval of the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts”, which came into force on 29 May 2004. By this resolution the Government approved the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts.

The aforementioned Description regulated the procedure and conditions of transfer of rights and obligations of the organiser of the detailed planning of territories to the owner, the possessor or the user of the land, as well as the procedure and conditions of concluding contracts on transfer of rights and obligations of the organiser of the detailed planning (Item 1).

6. On 15 January 2007, the Government adopted the Resolution (No. 36) “On Amending the Resolution of the Government or the Republic of Lithuania (No. 635) ‘On the Approval of the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts’ of 26 May 2004” (hereinafter also referred to as government resolution No. 36 of 15 January 2007), which came into force on 19 January 2007. Item 1 of the said resolution amended the Preamble to the Government Resolution (No. 635) “On the Approval of the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts” of 26 May 2004 and it indicated that the Description is approved on the basis not only of Paragraph 2 of Article 20 of the Law on Territorial Planning but of Paragraph 6 of Article 22 of this law as well. This resolution amended, inter alia, Item 7.2, the provisions of which are impugned in this constitutional justice case.

6.1. In the context of the constitutional justice case at issue it should be noted that Chapter II “Conditions of Transfer of Rights and Obligations of the Organiser of the Detailed Planning” (wording of 26 May 2004 with amendments made by government resolution No. 36 of 15 January 2007) of the Description, the compliance of Item 7.2 of which with the Constitution and laws (articles and paragraphs thereof) to the indicated extent is impugned by the petitioner, inter alia, provides:

7. The rights and obligations of the organiser of detailed territorial planning shall be transferred and a contract shall be concluded, where it is planned:

<...>

7.2. to convert the main targeted land utilisation purpose into the land for the construction of structures and development of other activity. The main targeted land utilisation purpose may be converted from agricultural land into land for other purposes, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof (cities, towns). The director of the administration of a municipality concludes a contract in the events and under conditions established in Paragraph 6 of Article 22 of the Law on Territorial Planning, and upon procedure defined in this Description;”.

6.2. Government resolution No. 635 (wording of 15 January 2007) of 26 May 2004 and the Description as approved by this resolution, inter alia, Item 7.2 (wording of 15 January 2007) thereof, have not been further amended and/or supplemented.

7. It has been mentioned that Paragraph 6 (wording of 8 June 2006) of Article 22 “Drafting of Detailed Plans” of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) provides:

6. The detailed plans, which convert the main targeted purpose of land utilisation from agricultural land into land for other purposes shall be drafted if such conversion is provided for in the general plans as well as in special plans of a municipality or part thereof. In the event that general or special plans have not been drafted it is only the director of the administration of a municipality or the possessor of the state-owned land, who may be the organiser of the drafting of the detailed plans. Where the possessor or user of land intends to convert the main targeted purpose of land utilisation from agricultural land into land for other purposes, in which construction of important objects of municipal infrastructure (except residential houses) is planned, by 31 December 2007, when general plans of the territories of municipalities or parts thereof (cities, towns) must be drafted, the director of the administration of a municipality, in the presence of a decision of the municipal council and consent of the chief of the county, upon the procedure defined by the Government concludes a contract on transfer of rights and obligations of the organiser of detailed territorial planning to the possessor or user of the land.”

8. It should be held that the legal regulation entrenched in Item 7.2 (wording of 15 January 2007) of the Description whereby the rights and obligations of the organiser of the detailed planning may be transferred and a contract may be concluded in the course of conversion of the main targeted land utilisation purpose from agricultural land into land for other purposes, where such conversion is provided for in general plans of a municipality or part thereof (cities, towns), as well as in special plans, is based on the legal regulation established in Paragraph 2 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) and is basically in line with it. It has been held in this ruling of the Constitutional Court that Paragraph 6 (wording of 8 June 2006) of Article 22 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) to the extent that, according to the petitioner, it does not prescribe that detailed plans, under which the main targeted purpose of utilisation of land is converted from forestry land into land for other purposes, are drafted, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is not in conflict with the Constitution.

9. It has been mentioned that the petitioner challenges not the compliance of the legal regulation entrenched in Item 7.2 (wording of 15 January 2007) of the Description with the Constitution and laws, but the fact that it does not establish something that should have been established. According to the petitioner, Item 7.2 (wording of 15 January 2007) of the Description should also provide that the rights and obligations of the organiser of detailed territorial planning may be transferred and a contract may be concluded, as well as the main targeted land utilisation purpose may be converted from forestry land into land for other purposes, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof.

10. It should be noted that such legal regulation whereby the rights and obligations of the organiser of detailed territorial planning may be transferred and a contract may be concluded, as well as the main targeted land utilisation purpose may be converted from forestry land into land for other purposes, where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, and the non-establishment of which in Item 7.2 (wording of 15 January 2007) of the Description, according to the petitioner, is in conflict with the Constitution and laws, would interfere in the implementation of the ownership rights that are enjoyed by a person in the aspect that preconditions would be created for limiting the ownership rights and, thus, for restricting the economic activity of forest owners.

It should also be noted that the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements), or the Law on Forests (wording of 10 April 2001 with subsequent amendments and/or supplements), or any other laws regulating the relations linked to conversion of the main targeted land utilisation purpose do not prescribe that the rights and obligations of the organiser of detailed territorial planning may be transferred and a contract may be concluded, as well as the main targeted land utilisation purpose may be converted from forestry land into land for other purposes—the construction of structures—where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof.

11. The Constitutional Court has held more than once that, under the Constitution, the ownership right is not absolute, it may be restricted by law, inter alia, due to the nature of the object of ownership; when restricting the ownership rights the following conditions should be met in all cases: it may be limited only on grounds of a law; the restrictions must be necessary in a democratic society in order to preserve rights and freedoms of other persons, the values that are entrenched in the Constitution, and constitutionally important objectives that are necessary to the society; the principle of proportionality must be followed. In this ruling of the Constitutional Court it has also been held that forests are special objects of the ownership right; special ecological, social and economic significance of forest in relation to the environment and the public interests determines certain limitations and restrictions on ownership rights of forest owners, however, the ownership right may only be limited only by means of a law. When construing Article 46 (inter alia, Paragraph 3 thereof) of the Constitution, the Constitutional Court has held more than once that limitations on economic activity are possible only if they are established by law.

It has been mentioned that, when regulating the relations linked to the ownership and utilisation of land, forests, parks and water bodies by means of legal acts, one must pay heed to the norms and principles of the Constitution, inter alia, the constitutional principle of a state under the rule of law; the constitutional principle of a state under the rule of law implies the hierarchy of all legal acts and does not permit substatutory legal acts to regulate the relations which can be regulated only by means of a law, and does not permit substatutory legal acts to establish any such legal regulation which would compete with that established in the law or which would not be based upon laws.

12. Thus, Item 7.2 (wording of 15 January 2004) of the Description as approved by government resolution No. 635 of 26 May 2004 does not contain a gap of legal regulation as indicated by the petitioner, because the Constitution, inter alia, Articles 46 and 54 thereof, and the constitutional principle of a state under the rule of law do not permit substatutory legal acts to regulate the relations which can be regulated only by means of a law. Thus, the legal regulation which, according to the petitioner, should be established in Item 7.2 (wording of 15 January 2004) of the Description, may not be entrenched either in this, or any other substatutory legal act, because in the latter event it would not be based on the law.

For this reason there are no arguments to maintain that Item 7.2 (wording of 15 January 2004) of the Description as approved by government resolution No. 635 of 26 May 2004, in the aspect indicated by the petitioner, is in conflict with Paragraph 3 of Article 46, Paragraph 1 of Article 54 of the Constitution, the constitutional principle of a state under the rule of law, as well as the provision “Detailed plans may not be drafted in the event that the objectives of planning are in conflict with the requirements of laws and other legal acts” of Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements).

13. In the constitutional justice case at issue it needs to be noted that Item 3 (wording of 15 January 2007) of the Description provides: “A municipality, represented by the director of the administration of the municipality, while following the Republic of Lithuania’s Law on Territorial Planning (Official Gazette Valstybės žinios, No. 107-2391; 2004, No. 21-617) and this Description, may conclude a contract on transfer of rights and obligations of the organiser of detailed territorial planning to the possessor or user of the land lots (hereinafter referred to as the Contract), where the objectives of planning, as indicated in their applications, are not in conflict with the requirements of laws and other legal acts, as well as solutions of general and special plans”.

When construing the provision of Item 7.2 (wording of 15 January 2007) that the rights and obligations of the organiser of detailed territorial planning are transferred and the contract is concluded when it is planned: “7.2. to convert the main targeted land utilisation purpose of a land lot to be the land for the construction of structures and development of other activity. The main targeted land utilisation purpose may be converted from agricultural land into land for other purposes, where such transfer is provided for in general plans as well as in special plans of a municipality or part thereof (cities, towns). The director of the administration of a municipality concludes the contract in the events and under conditions set forth in Paragraph 6 of Article 22 of the Republic of Lithuania’s Law on Territorial Planning, and upon procedure defined in this Description” together with Item 3 (wording of 15 January 2007) of the Description, it should be noted that the aforementioned provision of Item 7.2 (wording of 15 January 2007) may not be interpreted as the one that obligates the municipality to conclude a contract on transfer of rights and obligations of the organiser of detailed territorial planning, inter alia, to the possessor or user of forest land and land lots in cases, when the objectives of planning are not in line with the requirements of laws and other legal acts.

14. Taking account of the aforementioned arguments, the conclusion should be drawn that Item 7.2 (wording of 15 January 2004) of the Description as approved by government resolution No. 635 of 26 May 2004, to the extent that, according to the petitioner, it does not define that the rights and obligations of the organiser of detailed territorial planning may be transferred and the contract may be concluded, as well as the main targeted land utilisation purpose may be converted from forestry land into land for other purposes—the construction of structures—where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is not in conflict with Paragraph 3 of Article 46, Paragraph 1 of Article 54 of the Constitution, the constitutional principle of a state under the rule of law, and the provision “Detailed plans may not be drafted in the event that the objectives of planning are in conflict with the requirements of laws and other legal acts” of Paragraph 4 (wording of 8 June 2006) of Article 24 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements).

15. It has been mentioned that the petitioner requests an investigation into whether Item 7.2 (wording of 15 January 2004) of the Description as approved by government resolution No. 635 of 26 May 2004, in the aspect indicated by him, is not in conflict with Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001).

It has been held in this ruling of the Constitutional Court that Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) to the extent that it does not establish the cases of converting forest land into other landed property which should be considered exceptional cases, and/or that it does not establish any criteria for determining such cases, is in conflict with articles 23 and 54 of the Constitution and the constitutional principle of a state under the rule of law.

Having held that Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001) to the extent that it does not establish the cases of converting forest land into other landed property which should be considered exceptional cases, and/or that it does not establish any criteria for determining such cases, is in conflict with the Constitution, in this constitutional justice case the Constitutional Court will not investigate whether Item 7.2 (wording of 15 January 2004) of the Description as approved by government resolution No. 635 of 26 May 2004 is not in conflict with Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001).

Otherwise (if the Constitutional Court investigated the compliance of Item 7.2 (wording of 15 January 2004) of the Description as approved by government resolution No. 635 of 26 May 2004 with Paragraph 1 of Article 11 of the Law on Forests (wording of 10 April 2001)), the notion of the hierarchy of legal acts, as entrenched in the Constitution, and the principle of the supremacy of the Constitution would be denied, as well as the very essence of constitutional justice would be distorted.

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 Paragraph 1 of Article 11 of the Republic of Lithuania’s Law on Forests (wording of 10 April 2001, Official Gazette Valstybės žinios, 2001, No. 35-1161) to the extent that it does not establish the cases of converting forest land into other landed property which should be considered exceptional cases, and/or that it does not establish any criteria for determining such cases, is in conflict with Articles 23 and 54 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

2. To recognise that Item 7.4 (wording of 9 may 2002, Official Gazette Valstybės žinios, 2002, No. 48-1840) of the Procedure for Converting Forest Land into Other Landed Property as approved by Item 1 of the Resolution of the Government or the Republic of Lithuania (No. 641) “On the Approval of the Procedure for Converting Forest Land into Other Landed Property” of 9 May 2002 was in conflict with Articles 23 and 54 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

3. To recognise that Paragraph 6 (wording of 8 June 2006, Official Gazette Valstybės žinios, 2006, No. 66-2429) of Article 22 of the Republic of Lithuania’s Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements, Official Gazette Valstybės žinios, 2004, No. 21-617) to the extent that it does not prescribe that detailed plans under which the main targeted purpose of land utilisation is converted from forestry land into land for other purposes—the construction of structures—are drafted where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof, is not in conflict with the Constitution of the Republic of Lithuania.

4. To recognise that Item 7.2 (wording of 15 January 2004, Official Gazette Valstybės žinios, 2007, No. 7-281) of the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts as approved by the Resolution of the Government or the Republic of Lithuania (No. 635) “On the Approval of the Description of the Procedure for Transfer of Rights and Obligations of the Organiser of the Detailed Planning of Territories as well as Conclusion of Contracts” of 26 May 2004 to the extent that it does not define that the rights and obligations of the organiser of detailed territorial planning may be transferred and the contract may be concluded, as well as the main targeted land utilisation purpose may be converted from forestry land into land for other purposes—the construction of structures—where such conversion is provided for in general plans as well as in special plans of a municipality or part thereof (cities, towns), is not in conflict with the Constitution of the Republic of Lithuania and the provision “Detailed plans may not be drafted in the event that the objectives of planning are in conflict with the requirements of laws and other legal acts” of Paragraph 4 (wording of 8 June 2006) of Article 24 of the Republic of Lithuania’s Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements).

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

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

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