Lt

On confirming the areas of forests of state importance

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF THE PROVISIONS OF THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 1154) “ON THE CONFIRMATION OF FOREST AREAS OF STATE IMPORTANCE” OF 23 OCTOBER 1997 (WORDING 28 MAY 2002) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND PARAGRAPH 2 (WORDING OF 3 AUGUST 2001) OF ARTICLE 4 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE RESTORATION OF THE RIGHTS OF OWNERSHIP OF CITIZENS TO THE EXISTING REAL PROPERTY, AS WELL AS ON THE PETITION OF THE ŠIAULIAI REGIONAL ADMINISTRATIVE COURT, A PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER THE PROVISIONS OF THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 1154) “ON THE CONFIRMATION OF FOREST AREAS OF STATE IMPORTANCE” OF 23 OCTOBER 1997 (WORDING 14 JULY 2005) ARE NOT IN CONFLICT WITH ARTICLE 23 OF THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, ITEM 1 (WORDING OF 23 MARCH 2004) OF PARAGRAPH 2 OF ARTICLE 5, ITEM 3 (WORDING OF 2 APRIL 2002) OF PARAGRAPH 2 OF ARTICLE 5 AND ARTICLE 12 (WORDING OF 14 OCTOBER 2003) OF THE REPUBLIC OF LITHUANIA’S LAW ON THE RESTORATION OF THE RIGHTS OF OWNERSHIP OF CITIZENS TO THE EXISTING REAL PROPERTY

 

6 September 2007

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis

The court reporter—Daiva Pitrėnaitė

Robertas Klovas, Director of the Legal and Personnel Department of the Ministry of Environment of the Republic of Lithuania, acting as the representative of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing, on 14 August 2007, considered case No. 44/04-10/06 subsequent to the following:

1) the petition of the Vilnius Regional Administrative Court, a petitioner, requesting an investigation into whether the Resolution of the Government of the Republic of Lithuania (No. 750) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 28 May 2002 to the extent that, according to the petitioner, the forest area of plots Nos. 4, 5 and 6 of section 106 in Varnikai village of the Trakai district was assigned, under the schemes drafted by the Ministry of Environment, to the forest areas of state importance, is not in conflict with Article 23 of the Constitution of the Republic of Lithuania and Paragraph 2 of Article 4 of the Republic of Lithuania’s Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property (petition No. 1B-46/2004);

2) the petition of the Šiauliai Regional Administrative Court, a petitioner, requesting an investigation into whether Item 2 of the Resolution of the Government of the Republic of Lithuania (No. 765) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 14 July 2005 to the extent that, according to the petitioner, the land formerly owned by A. Donelaitis in the former village of Margiai, was specified in the Scheme of Forest Areas of State Importance in the Šiauliai City Municipality subsequent to the schemes drafted by the Ministry of Environment and was assigned to areas of forests of state importance, is not in conflict with Article 23 of the Constitution of the Republic of Lithuania, the provision of Item 1 of Paragraph 2 of Article 5 of the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property whereby the rights of ownership to land shall be restored by giving back in kind the vacant (non-built-up) land in the former locality where one had possessed it, the provision of Item 3 of Paragraph 2 of Article 5 thereof whereby the rights of ownership to land shall be restored by assigning without payment a new plot of land into the ownership of a citizen, which is prepared or not prepared for use in a manner prescribed by the Government, when the Government has approved its size in the same town in which he previously owned the land, and with Article 12 thereof in which, according to the petitioner, conditions are established when the land may be purchased by the state (petition No. 1B-11/2006).

By the Constitutional Court’s decision of 10 October 2006, the petition (No. 1B-46/2004) of the Vilnius Regional Administrative Court, a petitioner, and the petition (No. 1B-11/2006) of the Šiauliai Regional Administrative Court, a petitioner, were joined into one case and it was given reference No. 44/04-10/06.

The Constitutional Court

has established:

I

1. The Vilnius Regional Administrative Court, a petitioner, considered an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether the Government Resolution (No. 750) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 28 May 2002 (hereinafter also referred to as government resolution No. 750 of 28 May 2002) to the extent that, according to the petitioner, the forest area of plots Nos. 4, 5 and 6 of section 106 in Varnikai village of the Trakai district was assigned, under the schemes drafted by the Ministry of Environment, to the forest areas of state importance, is not in conflict with Article 23 of the Constitution and Paragraph 2 of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

2. The Šiauliai Regional Administrative Court, a petitioner, considered an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with the petition requesting an investigation into whether Item 2 of the Government Resolution (No. 765) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 14 July 2005 (hereinafter also referred to as government resolution No. 765 of 14 July 2005) to the extent that, according to the petitioner, the land formerly owned by A. Donelaitis in the former village of Margiai, was specified in the Scheme of Forest Areas of State Importance in the Šiauliai City Municipality subsequent to the schemes drafted by the Ministry of Environment and was assigned to areas of forests of state importance, is not in conflict with Article 23 of the Constitution, the provision of Item 1 of Paragraph 2 of Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property whereby the rights of ownership to land shall be restored by giving back in kind the vacant (non-built-up) land in the former locality where one had possessed it, the provision of Item 3 of Paragraph 2 of Article 5 thereof whereby the rights of ownership to land shall be restored by assigning without payment a new plot of land into the ownership of a citizen, which is prepared or not prepared for use in a manner prescribed by the Government, when the Government has approved its size in the same town in which he previously owned the land, and with Article 12 thereof in which, according to the petitioner, conditions are established when the land may be purchased by the state.

II

1. The petition of the Vilnius Regional Administrative Court, a petitioner, is grounded on the following arguments.

By the Order of the Director of the Department of Forests and Protected Territories (No. 170) “On Specifying the Areas and Boundaries of Forests of State Importance in the Trakai District” of 12 October 2000, plots Nos. 4–13 of forest section 106 of Trakai Historical National Park were entered on the list of forests of state importance.

By government resolution No. 750 of 28 May 2002, the said section is assigned to the forests areas of state importance. Thus, plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, which are in Varnikai village of the Trakai district, are subject to purchase by the state subsequent to the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

According to the Vilnius Regional Administrative Court, a petitioner, a person is making a claim to plots Nos. 4, 5 and 6 of the said section, who seeks to restore the rights of ownership to these plots.

In the opinion of the Vilnius Regional Administrative Court, a petitioner, government resolution No. 750 of 28 May 2002 to the extent that plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, which are in Varnikai village of the Trakai district, were assigned, under the schemes drafted by the Ministry of Environment, to the forest areas of state importance is in conflict with Article 23 of the Constitution and Paragraph 2 of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

2. The petition of the Šiauliai Regional Administrative Court, a petitioner, is grounded on the following arguments.

According to the schemes approved by the Government Resolution (No. 1651) “On Categorising Forests of the Counties of Alytus, Klaipėda, Marijampolė, Šiauliai, Tauragė, Telšiai, Utena and Vilnius as Belonging to Certain Groups of Forests” of 21 October 2002, as well as the Government Resolution (No. 1370) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 3 November 2004, the land, according to the Šiauliai Regional Administrative Court, a petitioner, which was formerly owned by A. Donelaitis, is assigned to the territory of town forests. According to the petitioner, by government resolution No. 765 of 14 July 2005 this land was assigned to the areas of forests of state importance.

According to the Šiauliai Regional Administrative Court, a petitioner, claims have been made to this part of the plot by the persons who seek to restore their rights of ownership to the said part of the plot and they had filed corresponding applications prior to the issuing of the impugned government resolution No. 765 of 14 July 2005.

In the opinion of the Šiauliai Regional Administrative Court, a petitioner, Item 2 of the Government Resolution (No. 765) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 14 July 2005 to the extent that, according to the petitioner, the land formerly owned by A. Donelaitis in the former village of Margiai, was specified in the Scheme of Forest Areas of State Importance in the Šiauliai City Municipality subsequent to the schemes drafted by the Ministry of Environment to areas of forests of state importance, is in conflict with Article 23 of the Constitution, the provision of Item 1 of Paragraph 2 of Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property whereby the rights of ownership to land shall be restored by giving back in kind the vacant (non-built-up) land in the former locality where one had possessed it, the provision of Item 3 of Paragraph 2 of Article 5 thereof whereby the rights of ownership to land shall be restored by assigning without payment a new plot of land into the ownership of a citizen, which is prepared or not prepared for use in a manner prescribed by the Government, when the Government has approved its size in the same town in which he previously owned the land, and with Article 12 thereof in which, according to the petitioner, conditions are established when the land may be purchased by the state.

III

In the course of preparation of the case for the Constitutional Court’s hearing, written explanations were received from R. Klovas, the representative of the Government, the party concerned.

1. It is maintained in the explanations of the representative of the Government, the party concerned, that the impugned provision of government resolution No. 750 of 28 May 2002 is not in conflict with the Constitution and Paragraph 2 of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

1.1. The guarantee of protection of ownership entrenched in the Constitution is a status quo guarantee, which protects the rights of ownership enjoyed by a person. A corresponding territory may be deemed to be necessary for the state; the necessities of the state are also needs of society, therefore, the application requesting the restoration of the rights of ownership in kind to the corresponding territory had no influence on the decision of the Government to recognise that a particular territory is forests of state importance. If the Government, taking account of the application requesting the restoration of the rights of ownership in kind, had not recognised that the corresponding territory was forests of state importance, the interests of one person would have been put above the interests of society; thus, the provision of Article 3 of Article 5 of the Constitution whereby state institutions shall serve the people, would have been violated. The legislature, upon choosing limited restitution, established in the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property as to in what cases and what property is not returned in kind but is purchased by the state.

1.2. Under Item 1 of Article 13 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, the Government has the powers to confirm the areas of forests of state importance which are subject to purchase by the state, to stipulate that certain territories are forests of state importance. The Government also has such powers under Article 4 of the Republic of Lithuania’s Law on Land. Thus, government resolution No. 1154 of 23 October 1997 and its subsequent amendments, including government resolution No. 750 of 28 May 2002, were adopted in pursuance of laws—legal acts of higher legal force. The Republic of Lithuania Forestry Law does not consolidate any concrete criteria under which the Government can assign the forests specified in Item 6 of Paragraph 4 of Article 4 of the Forestry Law to the areas of forests of state importance, nor does it establish any duty of state institutions to establish such criteria in substatutory legal acts; the right to adopt decisions on the assigning of forests to the areas of forests of state importance is established to the Government by law. However, it is important that the forests assigned to the areas of forests of state importance be necessary for needs of society, i.e. that they be of state importance. Government resolution No. 750 of 28 May 2002 recognised that precisely such forests were forests of state importance.

Forests of state importance were confirmed the first time by government resolution No. 1154 of 23 October 1997. In the course of preparation a draft of this government resolution and its subsequent amendments, specialists of the Lithuanian Forest Inventory and Management Institute used to submit proposals to the Government regarding the assigning of the forests specified in Item 6 of Paragraph 4 of Article 4 of the Forestry Law to the areas of forests of state importance; they proposed that, inter alia, the forests in protected territories, whose former owners do not wish to recover them, be assigned to the areas of forests of state importance.

1.3. Plots Nos. 4, 5 and 6 (which are in Varnikai village of the Trakai district) of section 106 of forest area of Trakai Historical National Park are of particular value. In 1993, while executing the Government Resolution (No. 912) “On Approving the Planning Scheme of Trakai Historical National Park” of 6 December 1993, the Lithuanian Forest Inventory and Management Institute prepared a draft of organisation of forest exploitation of Trakai Historical National Park and stipulated that plots Nos. 4–13 of section 106 shall be the forests of the reserve which are not subject to returning and privatisation. In 2001, upon the state inventorying of forests, by his Order (No. 636) “On Approval of Projects of Organisation of Forest Exploitation” of 22 December 2001, the Minister of Environment approved, inter alia, the project of organisation of forest exploitation of Trakai Historical National Park, according to which in plots Nos. 4–13 of section 106 there are not any domains of private owners, and, while following the Procedure for Categorising Forests as Belonging to Certain Groups of Forests approved by government resolution No. 1171 of 26 September 2001, due to the particular value of these forests, categorised them as belonging to the group of ecosystem protection forests (the change of whose purpose is forbidden).

The value and state importance of the impugned territory had been recognised prior to the first application, in 1996, requesting the restoration of the rights of ownership to these plots; such value and importance are recognised at present as well. The decision to restore the rights of ownership to plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, which are in Varnikai village of the Trakai district, has not been adopted yet; until such decision is not adopted, the persons who seek to restore the rights of ownership do not enjoy subjective rights to the respective property yet.

2. The representative of the Government, the party concerned, requests the Constitutional Court to refuse to consider the petition of the Šiauliai Regional Administrative Court, a petitioner, requesting an investigation into whether Item 2 of the Government Resolution (No. 765) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 14 July 2005 to the extent that, according to the petitioner, the land formerly owned by A. Donelaitis in the former village of Margiai, was specified in the Scheme of Forest Areas of State Importance in the Šiauliai City Municipality subsequent to the schemes drafted by the Ministry of Environment to areas of forests of state importance, is not in conflict with Article 23 of the Constitution, the provisions of the articles (parts thereof) (specified by the petitioner) of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, and grounds his position on the following arguments.

2.1. Government resolution No. 765 of 14 July 2005 does not regulate the relations linked with the land previously owned by A. Donelaitis in the former Margiai village—they are regulated by government resolution No. 1651 whereby the corresponding territory was assigned to forest parks.

2.2. Forest parks should be equalled to forests of state importance. Under Paragraph 1 of Article 47 of the Constitution, inter alia, forests and parks of state importance shall belong by the right of exclusive ownership to the Republic of Lithuania. Under Item 2 of Paragraph 4 of Article 4 of the Forestry Law, forests of state importance, to which, inter alia, town forests are assigned, shall belong to the Republic of Lithuania by right of exclusive ownership (such provision is valid as from 1 January 1995); under Item 3 of Paragraph 1 of Article 13 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, also forest parks are assigned to the objects purchased by the state, whose lists together with the areas of forests specified therein are approved by the Government, while under Article 6 of the Law on Land, the land which is assigned to forests of state importance by procedure established in laws and by the Government shall belong to the Republic of Lithuania by right of exclusive ownership and it shall not be permitted to acquire such land as private ownership.

According to R. Klovas, the legislature reasonably assigned town forests to forests of state importance, since they are of particular ecological importance: they improve the quality of the environment of towns, they diminish the negative impact (which is very big in towns) to the environment, as well as perform an important social and recreational functions: they ensure qualitative recreation in urban territories.

2.3. According to laws, the Government enjoys the powers to approve the areas of forests of state importance, which meet the criteria established in Article 4 of the Law on Forests. The assigning of a certain territory to the areas of forests is not to be related with volitional decisions by empowered state institutions (ruling of the Supreme Administrative Court of Lithuania of 29 May 2004 in administrative case No. A-14-499-2004). Even though the Government does not assign a certain territory (which meets the criteria established in the Forestry Law and which is within the territory of a town) to the areas of forests of state importance, this territory, under the Forestry Law, nevertheless is regarded as a forest of state importance and the rights of ownership to it may not be restored in kind.

IV

In the course of the preparation of the case, written explanations were received from A. Kuliešis, Director of the State Service for Organisation of Forest Exploitation of the Ministry of Environment, and G. Abaravičius, Director of the Directorate of Trakai Historical National Park.

V

1. At the Constitutional Court’s hearing, R. Klovas, the representative of the Government, the party concerned, virtually reiterated the arguments set forth in his written explanations and submitted additional explanations and additional documents, which are included into this constitutional justice case.

2. At the Constitutional Court’s hearing, the specialist, who was A. Kuliešis, Director of the State Service for Organisation of Forest Exploitation of the Ministry of Environment, took the floor.

The Constitutional Court

holds that:

I

1. The Vilnius Regional Administrative Court, a petitioner, requests an investigation into whether the Government Resolution (No. 750) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 28 May 2002 to the extent that, according to the petitioner, the forest area of plots Nos. 4, 5 and 6 of section 106 in Varnikai village of the Trakai district was assigned, under the schemes drafted by the Ministry of Environment, to the forest areas of state importance, is not in conflict with Article 23 of the Constitution and Paragraph 2 of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, while the Šiauliai Regional Administrative Court, a petitioner, requests an investigation into whether Item 2 of the Government Resolution (No. 765) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 14 July 2005 to the extent that, according to the petitioner, the land formerly owned by A. Donelaitis in the former village of Margiai, was specified in the Scheme of Forest Areas of State Importance in the Šiauliai City Municipality subsequent to the schemes drafted by the Ministry of Environment and was assigned to areas of forests of state importance, is not in conflict with Article 23 of the Constitution, the provision of Item 1 of Paragraph 2 of Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property whereby the rights of ownership to land shall be restored by giving back in kind the vacant (non-built-up) land in the former locality where one had possessed it, the provision of Item 3 of Paragraph 2 of Article 5 thereof whereby the rights of ownership to land shall be restored by assigning without payment a new plot of land into the ownership of a citizen, which is prepared or not prepared for use in a manner prescribed by the Government, when the Government has approved its size in the same town in which he previously owned the land, and with Article 12 thereof in which, according to the petitioner, conditions are established when the land may be purchased by the state.

2. On 23 October 1997, the Government adopted Resolution No. 1154 “On the Confirmation of Forest Areas of State Importance” (hereinafter also referred to as government resolution No. 1154 of 23 October 1997), which came into force on 30 October 1997, whereby it confirmed, inter alia, the areas of forests of state importance according to the schemes prepared by the Ministry of Agriculture and Forestry of the Republic of Lithuania (Item 1) and commissioned the Ministry of Agriculture and Forestry to submit, within 2 months of the entry of this resolution into force, the schemes pointed out in Item 1 to the interested ministries and the administrations of county chiefs (Item 2.1.). In this government resolution the areas of forests were indicated according to counties and districts; the areas of forests of state importance which were assigned to towns were not indicated therein.

Government resolution No. 1154 of 23 October 1997 had a constituent part titled “The Areas of Forests of State Importance”, in which, inter alia, for the Trakai district 30.7 thousand ha of the area of forests of state importance were confirmed (Section 42). The same government resolution confirmed the areas of forests of state importance for the Šiauliai County, however, no areas of forests of state importance were individually specified for the City of Šiauliai.

3. Government resolution No. 1154 of 23 October 1997 was amended by the following: the Government Resolution (No. 379) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 31 March 1998 (hereinafter also referred to as government resolution No. 379 of 31 March 1998); the Government Resolution (No. 111) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 4 February 1999 (hereinafter also referred to as government resolution No. 111 of 4 February 1999).

Item 2 of government resolution No. 1154 of 23 October 1997 (wording of 4 February 1999), inter alia, prescribed: “To commission the Department of Forests and Protected Territories under the Ministry of Environment: <…> 2.3. to specify the areas of forests of state importance and their boundaries according to the prepared land reform projects of organisation of land exploitation (without diminishing the areas of forests of state importance which have been confirmed in the counties), after coordinating this question with the Ministry of Agriculture and the corresponding administrations of county chiefs.”

4. Government resolution No. 1154 of 23 October 1997 (wording of 4 February 1999) was amended by the Government Resolution (No. 239) “On a Partial Amendment of the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 1 March 2000 (hereinafter also referred to as government resolution No. 239 of 1 March 2000).

Although government resolution No. 239 of 1 March 2000 came into force on 9 March 2000, it was established in Item 4 thereof that its “Items 1 and 2 shall come into force as from 1 April 2000”; thus, the application of all provisions of government resolution No. 1154 of 23 October 1997 (wording of 1 March 2000) had to be begun on 1 April 2000.

5. It was established in government resolution No. 1154 of 23 October 1997 (wording of 1 March 2000, including the provisions applicable as from 1 April 2000):

Conforming to the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, the Government of the Republic of Lithuania resolves:

1. To confirm the 1003 ha areas of forests of state importance according to the schemes prepared by the Department of Forests and Protected Territories under the Ministry of Environment.

2. To commission the Department of Forests and Protected Territories under the Ministry of Environment:

2.1. To submit, within 2 months of the entry of this resolution into force, the schemes pointed out in Item 1 to the interested ministries and the administrations of county chiefs;

2.2. In the course of the land reform, upon forming available free tracts of forest, to submit, under established procedure, proposals (upon coordination with the land management departments of corresponding county chiefs administrations) to the Government of the Republic of Lithuania regarding the assigning of these tracts to forests of state importance;

2.3. To specify the areas and boundaries of forests of state importance according to the prepared land reform projects of organisation of land exploitation (without diminishing the areas of forests of state importance which have been confirmed in the counties), after coordinating this question with the Ministry of Agriculture and the corresponding administrations of county chiefs.”

Government resolution No. 1154 of 23 October 1997 (wording of 1 March 2000, including the provisions applicable as from 1 April 2000) had a constituent part titled “The Areas of Forests of State Importance” (wording of 1 March 2000, including the provisions applicable as from 1 April 2000), in which, inter alia, for the Trakai district 32.42 thousand ha of the area of forests of state importance were confirmed (Section 43). The same government resolution confirmed the areas of forests of state importance for the Šiauliai County, however, no areas of forests of state importance were individually specified for the City of Šiauliai.

6. By the Government Resolution (No. 750) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 28 May 2002 (the compliance of which (to the corresponding extent) with the Constitution and Paragraph 2 of Article 4 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property is impugned by the Vilnius Regional Administrative Court, a petitioner), the Government Resolution (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (with subsequent amendments) was amended and set forth in a new wording.

It was established in government resolution No. 1154 of 23 October 1997 (wording of 28 May 2002):

1. To confirm the 1014.12 thousand ha of the area of forests of state importance (annexed) according to the schemes prepared by the Ministry of Environment.

2. To commission the Ministry of Environment:

2.1. To submit, within 2 months of the entry of this resolution into force, the schemes pointed out in Item 1 to the interested ministries and the administrations of county chiefs;

2.2. In the course of the land reform, upon forming available free tracts of forest, to submit, under established procedure, proposals (upon coordination with the land management departments of corresponding county chiefs administrations) to the Government of the Republic of Lithuania regarding the assigning of these tracts to forests of state importance.”

It needs to be mentioned that this government resolution no longer contained the provision that used to be in Item 2.3 of government resolution No. 1154 of 23 October 1997 (wording of 1 March 2000) whereby it was required to specify the areas and boundaries of forests of state importance according to the prepared land reform projects of organisation of land exploitation (without diminishing the areas of forests of state importance which have been confirmed in the counties), after coordinating this question with the Ministry of Agriculture and the corresponding administrations of county chiefs.

In the context of the constitutional justice case at issue, it needs to be noted that in government resolution No. 1154 of 23 October 1997 (wording of 28 May 2002) the areas of forests of state importance were indicated according to counties, districts and towns; however, one individually indicated not all areas of forests of state importance that were assigned to towns, but only to towns of Druskininkai, Klaipėda and Vilnius.

Government resolution No. 1154 of 23 October 1997 (wording of 28 May 2002) had a constituent part titled “The Areas of Forests of State Importance” (wording of 28 May 2002), in which, inter alia, for the Trakai district 33.87 thousand ha of the area of forests of state importance were confirmed (Section 44). The same government resolution confirmed the areas of forests of state importance for the Šiauliai county, however, no areas of forests of state importance were individually specified for the city of Šiauliai.

7. Neither the schemes prepared by the Ministry of Agriculture and Forestry of the Republic of Lithuania, which were pointed out in government resolution No. 1154 of 23 October 1997 (wordings of 23 October 1997 and 31 March 1998), nor the schemes prepared by the Department of Forests and Protected Territories under the Ministry of Environment, which were pointed in this government resolution (wordings of 4 February 1999, 1 March 2000 and 28 May 2002), were published in the official gazette “Valstybės žinios” (in which legal acts are published officially).

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

7.2. The Constitutional Court held in the same ruling, inter alia, that:

the Constitution—Paragraph 2 of Article 7 thereof together with the constitutional principle of a state under the rule of law—requires that not only the general procedure of the official publication of legal acts be established, but also such differentiated legal regulation that in the cases when due to an especially big size of a legal act, its complex structure, technical problems which arise due to the publication of the graphic part or other reasons solid enough, which constitutionally ground the separate publication of the textual and graphic parts of the legal act and/or their publishing in different ways, certain legal acts (parts thereof) would be published while following an alternative (in comparison with the general procedure of the official publication of the legal acts) procedure of the official publication of legal acts, in other sources and/or in other ways. It has been mentioned that the official publication of certain graphic parts of legal acts separately from the textual part (in a different source) and/or in a different way than the textual part should be regarded not as a rule, but as an exception; such exceptions must be expressis verbis provided for in the law; all that is mutatis mutandis applicable also for the situations when two or more textual parts of the legal act must be published separately and/or in different ways;

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

also such legal situations are possible, when upon establishing the only source for the official publication of legal acts and the only way of the official publication of legal acts, such legal regulation would be not only unreasonable, but also legally deficient, constitutionally groundless, as it would not enable the law enshrined in the corresponding legal acts to reach its goals because it would be impossible to implement certain legislative decisions in an expeditious way and as fast as possible, the protection of the secrecy of corresponding information would not be guaranteed, the provisions of the legal act (for example, the graphic parts) would be understood inadequately due to not very high quality of printing, etc. Thus, one would deviate from the constitutional concept of the official public publication of legal acts (moreover, the expenses of the publishing could be groundlessly big);

under the Constitution, the subjects of legal relations are bound to behave in good faith and without violating law, they have the duty to try to find out by themselves the requirements of law: it is required by the general principle of law bona fides, which is inseparable from the constitutional principle of a state under the rule of law; if the non-publishing of a certain constituent part of a legal act may be constitutionally grounded, and if one complies with the discussed conditions that the said source must make it public that a corresponding legislative decision has been adopted regarding a certain question, it must be clear from the legal acts published in this source that a certain constituent part of the legal act is not published in this source, it must be clear where one can familiarise himself with the constituent part of the legal act which is not published in the said source; the accessibility of the corresponding legal regulation to the subjects of law must be ensured in a practical way and no doubts could arise to them regarding the authenticity of the contents of the constituent part of the legal act which was not published in the said source; no subject of law can decide not to follow the requirements of law only because of the fact that these requirements arise from such part of the legal act which was published separately from others.

7.3. It also needs to be mentioned that Paragraph 1 of Article 1 of the Republic of Lithuania’s Law on Amending Articles 3 and 12 of the Law on the Procedure of the Publication and Entry into Force of Laws and Other Legal Acts and Supplementing the Law with Article 3¹, which was adopted by the Seimas on 16 January 2007 and which came into force on 16 January 2007, amended Item 4 (wording of 10 December 2002) of Paragraph 1 of Article 3 of the Law on the Procedure of the Publication and Entry into Force of Laws and Other Legal Acts, and Article 2 thereof supplemented the said law with new Article 3¹.

Item 4 (wording of 16 January 2007) of Paragraph 1 of Article 3 of the Law on the Procedure of the Publication and Entry into Force of Laws and Other Legal Acts prescribed that, under this law, the government resolutions, save the cases provided for in Article 3¹ of this law, must be published in the official gazette “Valstybės žinios”. Under Article 3¹ (wording of 16 January 2007) of the Law on the Procedure of the Publication and Entry into Force of Laws and Other Legal Acts, in the cases when the resolutions of the Seimas, government resolutions and the legal acts adopted by the heads of other institutions of state governance and collegial institutions include annexes (drawings, tables, graphs, schemes, maps, etc.), to announce which in the official gazette “Valstybės žinios” there are no technical possibilities, such legal acts are on the same day officially published: in the Internet website of the official gazette “Valstybės žinios” (www.valstybes-zinios.lt)—the legal act with annexes (Item 1 of Paragraph 1); in the official gazette “Valstybės žinios”—the legal act without annexes (Item 2 of Paragraph 1); the legal acts specified in this article shall be officially published in the official gazette “Valstybės žinios” and in the Internet website of the official gazette “Valstybės žinios” by the officials who signed them (Paragraph 2).

7.4. The schemes prepared by the Ministry of Agriculture and Forestry, which were pointed out in government resolution No. 1154 of 23 October 1997 (wordings of 23 October 1997 and 31 March 1998) and the schemes prepared by the Ministry of Environment, which were pointed in this government resolution (wordings of 4 February 1999, 1 March 2000 and 28 May 2002) are of big format.

7.5. It needs to be noted that there are not any data that the commissioning to the Ministry of Agriculture and Forestry, which was established in government resolution No. 1154 of 23 October 1997, to submit the said schemes to the interested ministries and the administrations of county chiefs, as well as analogous commissioning to this ministry or the Ministry of Environment, which was established by subsequent wordings of the government resolution, were executed improperly. Also, there are not any data that the said schemes are inaccessible to subjects of law or that they faced reasonable doubts regarding the authenticity of the contents of the said schemes, which were not published in the official gazette “Valstybės žinios”. In the administrative cases one decided to apply to the Constitutional Court with the petitions requesting an investigation into the compliance of provisions of government resolution No. 750 of 28 May 2002 and government resolution No. 765 of 14 July 2005 with the Constitution and articles (parts thereof) of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, there was not any dispute regarding these issues.

8. Government resolution No. 1154 of 23 October 1997 (wording of 28 October 2002) was amended by the following: the Government Resolution (No. 2013) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 20 December 2002 (hereinafter referred to as government resolution No. 2013 of 20 December 2002); the Government Resolution (No. 980) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 23 July 2003; the Government Resolution (No. 159) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 12 February 2004 (hereinafter referred to as government resolution No. 159 of 13 February 2004); the Government Resolution (No. 1214) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 23 September 2004 (hereinafter referred to as government resolution No. 1214 of 23 September 2004); the Government Resolution (No. 1370) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 3 November 2004 (hereinafter referred to as government resolution No. 1370 of 3 November 2004).

By government resolution No. 1370 of 3 November 2004, the constituent part of government resolution No. 1154 of 23 October 1997 (wording of 23 September 2004) which was titled “The Areas of Forests of State Importance” (wording of 23 September 2002) was amended and, inter alia, the areas of forests of state importance were confirmed: to the city of Šiauliai—0.26 thousand ha and to the Trakai district—28.46 thousand ha.

In the context of the constitutional justice case at issue it needs to be noted that the areas of forests of state importance by individually indicating the areas of the city of Šiauliai were confirmed by government resolution No. 1154 of 23 October 1997 only when this government resolution was set forth in the wording of 23 November 2004.

9. Government resolution No. 1154 of 23 October 1997 (wording of 3 November 2004) was amended by the Government Resolution (No. 765) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 14 July 2005 (the compliance of Item 2 of which (to the corresponding extent) with the Constitution and articles (parts thereof) of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property is impugned by the Šiauliai Regional Administrative Court, a petitioner).

It was established in government resolution No. 1154 of 23 October 1997 (wording of 14 July 2005):

Conforming to Article 13 of the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (Official Gazette Valstybės žinios, 1997, No. 65-1558; 1999, No. 48-1522; 2001, No. 35-1163, No. 108-3904; 2002, No. 112-4965), Article 4 of the Republic of Lithuania Forestry Law (Official Gazette Valstybės žinios, 2001, No. 96-1872; 2001, No. 35-1161; 2003, No. 123-5593) and Article 6 of the Republic of Lithuania’s Law on Land (Official Gazette Valstybės žinios, 1994, No. 34-620; 2004, No. 28-868) the Government of the Republic of Lithuania resolves:

1. To confirm the 1095.74 ha areas of forests of state importance according to the schemes prepared by the Ministry of Environment (Annexes 1–60).

2. To commission the Ministry of Environment:

2.1. To submit, within 2 months of the entry of this resolution into force, the schemes pointed out in Item 1 to the interested ministries and the administrations of county chiefs;

2.2. In the course of the land reform, upon forming available free plots of forest, to submit, under established procedure, proposals (upon coordination with the chiefs of corresponding counties) to the Government of the Republic of Lithuania regarding the assigning of these plots to forests of state importance;

3. To commission the county chiefs to submit, after the prepared land reform projects of organisation of land exploitation have been confirmed, proposals to the Ministry of Environment regarding the assigning of vacant plots of forest of the state land fund to the areas of forests of state importance.”

Government resolution No. 1154 of 23 October 1997 (wording of 14 July 2005) had a constituent part titled “The Areas of Forests of State Importance” (wording of 14 July 2005) in which, inter alia, the following areas of forests of state importance were confirmed: to the city of Šiauliai—0.26 thousand ha (Section 37, Annex 37) and to the Trakai district—28.46 thousand ha (Section 56, Annex 56).

Every of the sixty aforesaid annexes of government resolution No. 1154 of 23 October 1997 (wording of 14 July 2005) is a scheme of the area of forests of state importance in a corresponding town or district, which, along with government resolution No. 1154 of 23 October 1997 (wording of 14 July 2005), was published in the official gazette “Valstybės žinios”, and reference is made to the said scheme in the website which published the text of this government resolution. In this context it needs to be mentioned that some schemes of the areas of forests of state importance published in the official gazette “Valstybės žinios” are hard to understand due to the poor quality of printing and small scale.

10. Government resolution No. 1154 of 23 October 1997 (wording of 14 July 2005) was later amended by the following: the Government Resolution (No. 1299) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 2 December 2005; the Government Resolution (No. 383) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 26 April 2006 (hereinafter referred to as government resolution No. 383 of 26 April 2006); the Government Resolution (No. 916) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 19 September 2006 (hereinafter referred to as government resolution No. 916 of 19 September 2006); the Government Resolution (No. 1376) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 29 December 2006 (hereinafter referred to as government resolution No. 1376 of 29 December 2006); the Government Resolution (No. 713) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 11 July 2007 (hereinafter referred to as government resolution No. 713 of 11 July 2007).

11. The Government Resolution (No. 750) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 28 May 2002 (the compliance of which (to the corresponding extent) with the Constitution and Paragraph 2 of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property is impugned by the Vilnius Regional Administrative Court, a petitioner) amended certain provisions of government resolution No. 1154 of 23 October 1997 (wording of 1 March 2000, including the provisions applicable as from 1 April 2000), while the Government Resolution (No. 765) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 14 July 2005 (the compliance of which (to the corresponding extent) with the Constitution and articles (parts thereof) of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property is impugned by the Šiauliai Regional Administrative Court, a petitioner) amended certain provisions of government resolution No. 1154 of 23 October 1997 (wording of 3 November 2004).

It should also be noted that, by Item 2 of the Government Resolution (No. 765) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 14 July 2005 (which is impugned by the Šiauliai Regional Administrative Court, a petitioner), Item 1 of the Government Resolution (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) was set forth in a different manner; it was established in the said item (wording of 14 July 2005): “To confirm the 1095.74 ha areas of forests of state importance according to the schemes prepared by the Ministry of Environment (Annexes 1–60).”

12. Thus, in the constitutional justice case at issue it is impugned whether the following is not in conflict with the Constitution and articles (parts thereof) of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property:

Section 44 of the constituent part titled “The Areas of Forests of State Importance” of the Government Resolution (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 28 May 2002) to the extent that the 33.87 thousand ha of the area of forests of state importance confirmed (according to the corresponding scheme prepared by the Ministry of Environment) for the Trakai district encompass, according to the Vilnius Regional Administrative Court, a petitioner, plots Nos. 4–13 of forest section 106 of Trakai Historical National Park which are in Varnikai village of the Trakai district;

whether Section 37 of the constituent part titled “The Areas of Forests of State Importance” of the same government resolution (wording of 14 July 2005) to the extent that the 0.26 thousand ha of the area of forests of state importance confirmed (according to the corresponding scheme prepared by the Ministry of Environment) for the city of Šiauliai encompass, according to the Vilnius Regional Administrative Court, a petitioner, the land formerly owned by A. Donelaitis in the former village of Margiai.

13. While investigating the compliance of corresponding sections of the constituent part titled “The Areas of Forests of State Importance” of the Government Resolution (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (wordings of 28 May 2002 and 14 July 2005) with the Constitution and articles (parts thereof) of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, it is possible to elucidate the contents of corresponding provisions (sections) by taking account of the corresponding schemes, namely, the schemes of forests of state importance of the city of Šiauliai and the Trakai district.

14. The Vilnius Regional Administrative Court, a petitioner, does not indicate anything as to which wording of Paragraph 2 of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property that, in its opinion, the impugned section (to the corresponding extent) of government resolution No. 1154 of 23 October 1997 (wording of 28 May 2002) is in conflict with, however, it is clear from the arguments of the petition that it is the wording of 3 August 2001.

Paragraph 2 (wording of 3 August 2001) of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property provides:

Land shall be given back in kind to a citizen or citizens in the former locality by the right of common ownership, with the exception of the land which under Article 12 of this Law is assigned to the land subject to purchase by the State, and the land that citizens are not willing to get back in its former locality in the case specified in Paragraph 10 of this Article. By agreement of co-owners of land, land may be returned in kind by separate plots of land. Projects of parcelling out plots of land acquired by the right of common ownership, shall be prepared with the funds of the owners of such land according to the uniform-amount rates of executing works, as set by the Government.”

15. It needs to be noted that the Vilnius Regional Administrative Court, a petitioner, impugns expressis verbis the compliance of Section 44 (to the corresponding extent) of the annex titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997 (wording of 28 May 2002) with not entire Paragraph 2 (wording of 3 August 2001) of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, but only with the provision “land shall be given back in kind <…> in the former locality” of the same paragraph.

However, the mere fact that there is the exception to the general rule (pointed out by the petitioner), it is obvious that this provision is closely related with other provisions of this paragraph (as well as with other provisions of this law). If one failed to take account of the said exception, the investigation subsequent to the petition of the petitioner would become impossible at all.

16. The Šiauliai Regional Administrative Court, a petitioner, does not point out any wording of Items 1 and 3 of Paragraph 2 of Article 5 and Article 12 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property with which, according to the petitioner, the impugned section of government resolution No. 1154 of 23 October 1997 (wording of 14 July 2005) is in conflict, however, it is clear from the arguments of the petition that it is the wording of 23 March 2004 of Item 1 of Paragraph 2 of Article 5 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, the wording of 2 April 2002 of Item 3 of the same paragraph, and the wording of 14 October 2003 of Article 12 of the same law.

Under Item 1 (wording of 23 March 2004) of Paragraph 2 of Article 5 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, the rights of ownership to the land, which was situated prior to 1 June 1995 within the territory that was assigned in the prescribed manner to towns, shall be restored: “by giving back in kind to a citizen or citizens the vacant (non-built-up) land in the former locality by the right of common ownership, as well as to a citizen, possessing the buildings by the ownership right, a plot of land in use by this citizen the boundaries of which are defined in territorial planning documents, with the exception of the land assigned under Article 12 of this Law to the land subject to purchase by the State, as well as the land a citizen does not wish to be given back in the former locality. The area of the vacant (non-built-up) land given back in kind shall be reduced to the size of a plot of land of one hectare, provided that plots of land are designed on it, which are being transferred without payment to citizens for individual construction under Item 3 of Paragraph 2 of this Article and they may not be designed within other territories of a town due to the lack of vacant (non-built-up) land in this town. The formation of plots of land being given back in kind in vacant (non-built-up) areas of land in the former locality and the preparation of their plans shall, in accordance with the procedure and conditions set out by the Government, be organised and the plans shall be approved by the director of the municipal administration.”

Under Item 3 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, the rights of ownership to the land, which was situated prior to 1 June 1995 within the territory that was assigned in the prescribed manner to towns, shall be restored: “by assigning without payment a new plot of land into the ownership of a citizen, which is prepared or not prepared for use in a manner prescribed by the Government, when the Government has approved its size in the same town in which he previously owned the land, with the exception of the territory of Curonian Spit National Park, or at the request of the citizens—in the town where they reside (except the towns of Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas and the territory of Curonian Spit National Park). New plots of land in the parts lying within the areas of the towns which are entered in the Register of Immovable Cultural Properties of the Republic of Lithuania (the List of Cultural Areas) shall not be assigned to ownership for construction of a private house or other purposes (except the cases when in this territory construction of a private house is intended for a citizen according to the territorial planning documents on the land possessed by him by the right of ownership); utilised plots of land shall be assigned without payment into ownership only to those persons who own residential houses or other structures by the right of ownership in these parts lying within the areas of towns. When the citizen refuses to accept a new plot of land prepared or not prepared for use (for choice) in a manner prescribed by the Government, which is assigned without payment to the ownership of the said citizen for construction of a private house, at his request, he shall be given as a compensation an average amount of money due for a plot of land, the size whereof is established by the Government, in that town in accordance with Article 16 of this Law. Such an amount of money shall be fixed by the Government.”

It was established in Article 12 (wording of 14 October 2003) of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property:

The land shall be purchased by the State from the citizens specified in Article 2 of this Law and it shall be compensated for it pursuant to Article 16 of this Law if:

1) it is occupied by State-owned and local-authority-owned roads; airfields (the list plots of lands thereof shall be approved by the Government); it is occupied by military units and designated for the protection of State borders (plots of land and their boundaries shall be approved by the Government); it lies within the area of the utilised deposits of mineral resources;

2) in a rural area and, after 1 June 1995, within the territory assigned to towns it is occupied, pursuant to laws, by: plots of land of households (homesteads) plots; plots of land necessary for exploitation of buildings and facilities of state institutions and organisations, as well as those serving public needs (under construction or already built) except plots of land occupied by buildings and structures designated for rest and recreation; other territories used for public needs (streets, squares, public gardens, cemeteries, water bodies, beaches, etc.); it is allotted for construction of private houses. Areas and boundaries of such plots (territories) of land shall be established in territorial planning documents;

3) it was situated prior 1 June 1995 within the territory assigned to towns and, according to the detailed plans approved in the manner prescribed by law, is occupied by: plots of land necessary for exploitation of buildings, construction works or equipment (under construction or already built); territories in which other infrastructural facilities in use or new ones—the complex (energy, transport, communications, construction, education, healthcare, recreation and tourism, protection of objects of nature and cultural objects as well as waste management, national defence, civil protection, fire protection) of various fields of activities, rendering services to the economy and population, ensuring security of the State and its residents, protection of objects of nature and cultural objects; plots of land intended to be used for ports and their equipment, for building national railways, main pipe installations, high tension power lines, for important construction of national significance, for general purposes of the population, for public construction and recreation; for firming up points of state geodesic, gravimetric and astronomical networks; for matters related to the protection of complexes and objects of nature, archaeology and history; for exploitation and common (public) use of facilities of community economy, social, educational facilities, health resort treatment, recreational, rehabilitation facilities, facilities intended for leisure, which are necessary for fulfilment of municipal functions and the importance of which for the local community is recognised by the municipal council by its decision; for implementation of economic projects significant for the State, the national importance of which is recognised by the Seimas or the Government by means of the respective decision; plots of land intended to be assigned without payment to the ownership of the persons for private construction under Paragraph 2 of Article 5 of this Law, if such plots of land have already been designed on the land subject to be returned to a citizen;

4) it is occupied by gardens of gardeners’ societies;

5) it lies within the territory of state reserves, national and regional park reserves and of Curonian Spit National Park;

6) it is acquired into private ownership in accordance with laws;

7) the land is, according to laws, allotted and used an individual farm of residents, as well as allotted for office entitlement parcels. The size and boundaries of the plots of such land shall be established in newly drawn-up land survey plans of land reform;

8) it is allotted in a rural area for use by institutions of science and studies, public establishments formed by these institutions, organising practical training and research, establishments of vocational training, state institutions of social guardianship and care, state specialised seed-growing, stock-breeding farms and specialised stock-breeding companies. The list of users of this land and the size of the plots of land utilised by them shall be established by the Government;

9) it is with formed ponds, industrial fishery ponds (including the land occupied by the equipment of the pond dam);

10) it is in compliance with the conditions laid down in the first sentence of Paragraph 6 of Article 16 of this Law;

11) it is allotted and used for a peasants’ farm in accordance with laws, provided that the user of such land has been allowed to buy it and cash or single state grants have been paid for it;

12) it lies within the territories of state parks and state reserves which are especially valuable ecologically, archeologically and recreationally. The boundaries of such territories shall be established by the Government;

13) it is occupied by residential houses, parts thereof, flats which are subject to purchase by the State according to Article 15 of this Law. The areas and boundaries of these plots of land, parts thereof shall be defined in territorial planning documents.”

17. It needs to be noted that the Šiauliai Regional Administrative Court, a petitioner, impugns expressis verbis the compliance of Section 37 (to the corresponding extent) of the annex titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997 (wording of 14 July 2005) with not entire Item 1 (wording of 23 March 2004) of Paragraph 2 of Article 5 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, but only with the provision “the rights of ownership to the land shall be restored by giving back in kind the vacant (non-built-up) land in the former locality” of the same item; not with entire Item 3 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the same law, but only with the provision “the rights of ownership to the land shall be restored by assigning without payment a new plot of land into the ownership of a citizen, which is prepared or not prepared for use in a manner prescribed by the Government, when the Government has approved its size in the same town in which he previously owned the land.”

However, the mere fact that in Item 1 (wording of 23 March 2004) and Item 3 (wording of 2 April 2002) of Paragraph 2 of Article 5 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property there are exceptions to the general rule (pointed out by the petitioner), it is obvious that these provisions are closely related with other provisions of these items (as well as with other provisions of this law). If one failed to take account of the said exception, the investigation subsequent to the petition of the petitioner would become impossible at all.

II

On the compliance of Section 44 of the constituent part titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997 (wording of 28 May 2002) to the extent that the 33.87 thousand ha of the areas of forests of state importance confirmed (under the corresponding scheme drafted by the Ministry of Environment) to the Trakai district encompass, according to the Vilnius Regional Administrative Court, a petitioner, also plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, which are in Varnikai village of the Trakai district, with Article 23 of the Constitution and Paragraph 2 (wording of 3 August 2001) of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

1. In the constitutional justice case at issue, one impugns, inter alia, the compliance of Section 44 of the constituent part titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997 (wording of 28 May 2002) to the extent that the 33.87 thousand ha of the areas of forests of state importance confirmed (under the corresponding scheme drafted by the Ministry of Environment) to the Trakai district encompass, according to the Vilnius Regional Administrative Court, a petitioner, also plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, which are in Varnikai village of the Trakai district, with Article 23 of the Constitution and Paragraph 2 (wording of 3 August 2001) of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

It is clear from the arguments of the Vilnius Regional Administrative Court, a petitioner, that it had doubts as to whether the impugned legal regulation is not in conflict with Article 23 of the Constitution and Paragraph 2 (wording of 3 August 2001) of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property in the aspect that, according to the petitioner, the Government assigned plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, which are in Varnikai village of the Trakai district, to the areas of forests of state importance, although one had not adopted a decision regarding the application to restore the rights of ownership to these plots.

The fact whether the said person is reasonably claiming the restoration of the rights of ownership to the said plots in kind (whether his application is grounded on the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property) is not a matter of investigation in the constitutional justice case at issue. The decisions of these issues is within the jurisdiction of the court that is deciding a corresponding administrative case.

2. While deciding, subsequent to the petition of the Vilnius Regional Administrative Court, a petitioner, requesting an investigation into whether Section 44 of the constituent part titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997 (wording of 28 May 2002) (to the corresponding extent and in the aspect that this legal regulation is impugned by the petitioner) is not in conflict with Article 23 of the Constitution and Paragraph 2 (wording of 3 August 2001) of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, it needs to be noted that plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, are in the territory of Varnikai Botanical-Zoological Reserve, which is in Trakai Historical National Park.

2.1. Trakai Historical National Park (8 thousand ha) was established by the Resolution of the Supreme Council (No. I-1244) “On Founding Dzūkija, Curonian Spit, Žemaitija National Parks, Trakai Historical National Park and Viešvilė State Reserve” of 23 April 1991 (Subitem 4 of Item 1). Also plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, which are in Varnikai village of the Trakai district, became part of the territory of the aforesaid park. In this context, it needs to be noted that until then Trakai Landscape Reserve (founded as far back as 1960) used to be there.

2.2. On 22 April 1992, the Government adopted the Resolution (No. 283) “On Approving the Provisional Regulations for Dzūkija, Curonian Spit and Žemaitija National Parks and Trakai Historical National Park and the Regulations for Viešvilė State Nature Reserve” (hereinafter referred to as government resolution No. 283 of 22 April 1992), Item 1 of which approved, inter alia, the Provisional Regulations for Trakai Historical National Park.

Under Item 9 of the said provisional regulations, the territory of Trakai National Historical Park was grouped, according to the natural and cultural values, their character, forms of protection and possibilities of use, into functional zones; one of them was conservational zone, to which, inter alia, Varnikai Botanical-Zoological Reserve was assigned. Under Item 8.1 of these provisional provisions, one of the most important tasks of Trakai Historical National Park is to preserve, inter alia, the Varnikai forest complex.

It was established in Item 4 of the Provisional Regulations for Trakai Historical National Park that the forests of the territory of Trakai Historical National Park, save small forests jutting out in landed property, water bodies, save those privatised under the procedure established by means of laws of the Republic of Lithuania, land of reserves and recreation zones is state-owned property and that in other territory of the park there may be both state owned and private land property.

The Provisional Regulations for Trakai Historical National Park were amended and supplemented by the Government Resolution (No. 239) “On a Partial Amendment of the Provisional Regulations for Trakai Historical National Park” of 13 February 1995, however, the said provisions were not amended.

2.3. On 6 December 1993, the Government adopted the Resolution (No. 912) “On Approving the Planning Scheme of Trakai Historical National Park” by Article 1 whereof it approved the Planning Scheme of Trakai Historical National Park (the plan of the park territory with its functional zones and the explanatory note) submitted by the Department for Monument Maintenance under the Ministry of Construction and Urban Planning.

In Chapter 3 titled “The Zoning of Trakai Historical National Park” of the said scheme the territory of Trakai Historical National Park was grouped into functional zones according to natural and cultural values, their character, the forms of protection and possibilities of use; Varnikai Botanical-Zoological Reserve was assigned to one of such zones (Item 1). Under Item 2.9 titled “Conservational Zone” of the constituent part titled “The Zones of Trakai Historical National Park” of this scheme, Varnikai Botanical-Zoological Reserve encompassed, inter alia, Varnikai forest, thus, also plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, which are in Varnikai village of the Trakai district.

2.4. On 4 April 2000, the Government adopted the Resolution (No. 388) “On Approving the Regulations for Trakai Historical National Park” (hereinafter referred to as government resolution No. 388 of 4 April 2000) by Item 1 whereof it approved the Regulations for Trakai Historical National Park.

Under Item 5.8 of the said regulations, one of the tasks of Trakai Historical National Park is to protect, inter alia, the complex of forest, swamps, grasslands and lakes of Varnikai Botanical-Zoological Reserve together with the plants and wild animals characteristic of their ecotopes.

Under the Regulations for Trakai Historical National Park, the land of Trakai Historical National Park reserves shall be state-owned property, while in other territory of the park there can be both state-owned and private land ownership (Item 9); the state shall have the right of priority to acquire the land plots and other real property sold in the territory of the historical national park (Item 10); in the course of restoration of the rights of ownership subsequent to the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, the land, water bodies and forests are returned or transferred as ownership to the owners for limited targeted use under procedure established by means of laws of the Republic of Lithuania (Item 11).

2.5. As mentioned before, by the Order of the Director of the Department of Forests and Protected Territories (No. 170) “On Specifying the Areas and Boundaries of Forests of State Importance in the Trakai District” of 12 October 2000, plots Nos. 4–13 of forest section 106 of Trakai Historical National Park were entered on the list of forests of state importance.

3. It is clear from the said legal regulation that the State of Lithuania has always treated and treats the territory, which had been assigned to Trakai Landscape Reserve prior to 1991 and later—to Trakai Historical National Park, as a valuable natural complex—as a protected territory with special landscape (countryside) and botanical zoological value—for which a special legal regime must be established; this is a universally known fact. It is also universally known that these territories are a special historical and cultural value and this fact does not give rise to any doubts.

3.1. In this context it needs to be mentioned that under Item 1 of Article 21 of the Law on Protected Territories, which was adopted by the Seimas on 9 November 1993, national parks (which are protected territories—state parks, i.e. protected territories of a complex (integral) character) are founded in order to protect and manage the landscape complexes and anthropo-ecosystems of national importance, which represent the natural and cultural peculiarities of ethnocultural areas of the Republic of Lithuania and to regulate the use thereof; specific national parks are historical national parks, which are founded in order to preserve the cultural complexes of historical centres of Lithuanian statehood and of their natural environment; under Subitem 2 of Item 1 of Paragraph 1 of Article 3 (wording of 9 November 1993) of this law, reserves (they are protected territories—preservation (conservational) territories) are established for the protection of the natural and/or cultural complexes, ensembles and locations valuable from the scientific or cognitive point of view; the economic and recreational activities are regulated and limited therein.

3.2. The approach of the State of Lithuania to the territory assigned to Trakai Historical National Park as a valuable natural complex—a territory to be protected—inter alia, to the complex of Varnikai forest as an inseparable part of this protected territory, is reflected by the Provisional Regulations for Trakai Historical National Park approved by government resolution No. 283 of 22 April 1992 and the legal regulation established by government resolution No. 388 of 4 April 2000, inter alia, Item 8.1 of the Provisional Regulations for Trakai Historical National Park approved by said government resolution No. 283 of 22 April 1992 and Item 5.8 of the Regulations for Trakai Historical National Park approved by government resolution No. 388 of 4 April 2000.

3.3. In this context it also needs to be mentioned that, on 15 June 2005, the Minister of Environment, while implementing the 21 May 1992 Council of the European Communities Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (with most recent amendments made by Regulation (EC) No. 1882/203 of the European Parliament and of the Council of 29 September 2003), issued the Order (No. D1-302) “On the List of Localities Which Meet the Criteria for Selection of Territories Important for Protection of Natural Habitats, Which must be Submitted to the European Commission” by Item 1 whereof the List of Localities Which Meet the Criteria for Selection of Territories Important for Protection of Natural Habitats which had to be submitted to the European Commission was approved. In Section 235 the entire Varnikai forest and the surrounding territory (its boundaries coincide with the boundaries of Varnikai Botanical-Zoological Reserve of Trakai Historical National Park) was included into the coherent European ecological network of special areas of conservation titled Natura 2000.

It needs to be held that the territory of Trakai Historical National Park, inter alia, the complex of Varnikai forest as an inseparable part of this territory, should be specially protected not only due to its national, but also international importance; it meets the criteria for selection of European territories important for protection of natural habitats.

3.4. In its rulings of 13 May 2005 and 27 June 2007, the Constitutional Court held that the Constitution treats the natural environment, its fauna and flora, individual objects of nature and districts of particular value as national values of universal importance; their protection and securing that natural resources be used moderately and that they be restored and augmented are a public interest the guaranteeing of which is a constitutional obligation of the state.

4. While investigating, subsequent to the petition of the Vilnius Regional Administrative Court, a petitioner, requesting an investigation into whether Section 44 of the constituent part titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997 (wording of 28 May 2002) (to the corresponding extent and in the aspect that this legal regulation is impugned by the petitioner) is not in conflict with Article 23 of the Constitution and Paragraph 2 (wording of 3 August 2001) of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, it needs to be noted that in its acts the Constitutional Court has formulated a broad official constitutional doctrine of ownership; in the jurisprudence of the Constitutional Court the provisions of Article 23 of the Constitution are construed in the context of other norms and principles of the Constitution, inter alia, in the context of the provisions of Article 54 thereof, which consolidate the protection of the natural environment, wildlife and plants, individual objects of nature and areas of particular value and a sustainable use of natural resources, their restoration and increase, as well as in the context of the constitutional principle of a state under the rule of law. In the Constitutional Courts acts also a broad official constitutional doctrine of restitution—the restoration of the rights of ownership of citizens to the existing real property.

4.1. Article 23 of the Constitution provides that property shall be inviolable (Paragraph 1); the rights of ownership shall be protected by law (Paragraph 2); property may be taken over only for the needs of society according to the procedure established by law and shall be justly compensated for (Paragraph 3).

In the context of the constitutional justice case at issue, one should mention the provisions of the official constitutional doctrine that have been formulated in the acts of the Constitutional Court adopted in previous constitutional justice cases.

the inviolability of property and protection of subjective rights of ownership cannot be interpreted as the grounds to oppose the rights and interests of the owner against the public interest, the rights, freedoms and legitimate interests of other persons;

the provisions of Article 23 of the Constitution should be construed while taking account also of the provision of Paragraph 1 (wording of 23 January 2003) of Article 47 of the Constitution whereby the underground, internal waters, forests, parks, roads, historical, archaeological and cultural objects of state importance shall belong by the right of exclusive ownership to the Republic of Lithuania (it used to be consolidated in Paragraph 3 (wording of 25 October 1992) and Paragraph 4 (wording of 20 June 1996) of the same article), which means that the objects, inter alia, forests of state importance, specified in Paragraph 1 (wording of 23 January 2003) of Article 47 of the Constitution, may belong only to the state by right of ownership, save the exceptions stemming from the Constitution itself; the state (its institutions, officials) cannot adopt any decisions on the grounds of which the said objects would move from the state ownership to the ownership of other subjects, save the situations permitted by the Constitution itself; the fact that forests of state importance are treated in the Constitution as belonging to the Republic of Lithuania by right of ownership does not mean that they (which belonged to certain persons by right of ownership and which were later recognised as being of state importance) should necessarily be taken over to state ownership (according to the procedure established by law and by justly compensating for it); the Constitution also tolerates such legal regulation when after the law establishes the features under which forests of state importance are defined, then such forest would have to belong only to the state under the right of ownership: in such a case, if the forests, which belong to someone but not the state by right of ownership, were recognised as being of state importance, they could be taken over to state ownership;

forests, parks, water bodies are special objects of ownership; under the Constitution, natural environment, wildlife and plants, individual objects of nature and areas of particular value are national values of universal importance; their protection and securing that natural resources be used moderately and that they be restored and augmented are a public interest the guaranteeing of which is a constitutional obligation of the state; the special ecological, social and economic significance of the forest with regard to environment and public interests determines certain limitations and restrictions on the rights of the owners of the forest;

one may recognise not any internal waters, forests, and parks as internal waters, forests, and parks of state importance, but only those whose continual value is so big and the necessity to preserve it to the posterity is so pressing that in case they were not recognised as being of state importance, a threat for their preservation would arise; while taking account of the special continual value of forests and parks of state importance and the necessity to preserve them to the posterity, the state is under constitutional obligation to take care of these objects and preserve them; with regard to the said objects, if compared with other objects, a special, particular legal regime may be established legislatively in order to take care of and preserve them; the features according to which forests of state importance may be defined must be detailed and particularised by the legislature while paying heed to the Constitution;

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 limited;

if the objects of nature which are in areas of particular value belong by right of ownership to the state, then, regardless of whether or not they are recognised as objects of state importance, they may be transferred to ownership of other persons only in the case (and only in this manner), when this is constitutionally grounded.

Recognising the continuity of ownership rights and their restoration, on 15 November 1990, the Supreme Council adopted a principled decision and confirmed these provisions: the continuity of ownership rights of citizens of Lithuania is recognised; citizens of Lithuania have the right, within the limits and under procedure defined by law, to recover in kind the property that belonged to them, while in the absence of the possibility of recovering it—to receive compensation. On 18 June 1991, the Supreme Council adopted the Republic of Lithuania’s Law “On the Procedure and Conditions of Restoration of Citizens’ Rights of Ownership to the Existing Real Property”, which established to what persons, what property and under what conditions and procedure the rights of ownership had to be restored. According to this law (with subsequent amendments and supplements), limited restitution was carried out—the former owners were being restored their rights of ownership to land, forests and water bodies. The restitution process is still going on; it is regulated by the Republic of Lithuania’s Law on the Restoration of Citizens’ Rights of Ownership to the Existing Real Property (with subsequent amendments and supplements), which was adopted by the Seimas on 1 July 1997, and which replaced the said Law “On the Procedure and Conditions of Restoration of Citizens’ Rights of Ownership to the Existing Real Property” (with subsequent amendments and supplements) which was adopted by the Supreme Council on 18 June 1991.

In the context of the constitutional justice case at issue, one should mention the following provisions of the official constitutional doctrine of restitution—the restoration of the rights of ownership of citizens to the existing real property:

the legislature, while regulating the relations of restoration of the rights of ownership, enjoys discretion to establish the conditions and procedure for restoration of the rights of ownership; while doing so, the legislature is bound by the Constitution, thus, also by the constitutional principles of protection of the rights of ownership, and the constitutional striving for an open, just, and harmonious civil society;

when one establishes, by means of laws, the conditions and procedure of restoration of the rights of ownership, it is necessary to take account of the changed social, economic, and other conditions; in the process of the restoration of the rights of ownership it is necessary to co-ordinate the interests of the persons who seek to restore the rights of ownership and the needs of society, that in the course of restoration of the rights of some persons it is not permitted to violate the rights of other persons and that it is impossible to attain justice by recognising the interests of only one group or one person and by denying the interests of others at the same time;

it can be established in laws that objects of property are not restored in kind to the persons who have the right to restore the rights of ownership, but are purchased by the state; the provision of restitution laws that if it is impossible to return the property in kind, one must assign compensation, is not in conflict with the principles of inviolability of property and protection of rights of ownership, since fair compensation also ensures restoration of the rights of ownership; the legislature also enjoys the powers to establish (of course, without overstepping the limitations explicitly and implicitly established in the Constitution) that in case there is not any possibility of returning in kind precisely the property that used to belong to the person by right of ownership prior to the unlawful nationalisation or other unlawful expropriation, the rights of ownership are also restored in other ways, inter alia, by granting a plot of land or forest of equal value in another locality, i.e. by granting, instead of the property held by right of ownership, property which previously never belonged to the said person by right of ownership; the Constitution does not prohibit regulating, by means of a law, the restoration of the rights of ownership to the existing real property in a differentiated manner also in the aspect that the conditions and procedure of the restoration of the rights of ownership may also differ, inter alia, according to the fact as to what kind of ownership (land, forest, water body) the rights of ownership are restored, as well as according to the fact in what territory the property to which the rights of ownership are restored is situated; however, one must heed the constitutional principle of a state under the rule of law which includes, inter alia, the protection of legitimate expectations, legal certainty and legal security;

it was not the State of Lithuania that unlawfully nationalised or expropriated in other unlawful ways the property of the owners; while striving to restore justice in part at least, i.e. to restore the violated rights of ownership, one chose restricted restitution, but not restitutio in integrum; in the process of restoration of the rights of ownership one must seek to attain a balance between the persons to whom the rights of ownership are restored and the interests of the entire society; it is impossible to identify the purchase of the existing real property by the state from the citizens to whom the right of ownership is restored with the seizure of property from the owner for the needs of society (under Paragraph 3 of Article 23 of the Constitution); the concept of the needs of society due to which, in the course of the restitution, property is not returned to the owners in kind, but is purchased by the state, is much broader than the content of the notion “needs of society” employed in Paragraph 3 of Article 23 of the Constitution;

it is not permitted to construe the constitutional principle of a state under the rule of law that it, purportedly, does not in general permit the legislature, after it began the restoration of the rights of ownership under certain conditions, to change these conditions later, inter alia, to establish new, additional conditions, when by this one seeks to protect certain constitutional values, upon which harm might be inflicted or conditions for such harm to occur might be created, if the conditions of the restoration of the rights of ownership to the existing real property established earlier were not changed; if it becomes clear that certain values protected and defended by the Constitution, upon which harm might be inflicted or conditions for such harm to occur might be created, the legislature not only may, but also must correspondingly amend the conditions and procedure for the restoration of the rights of ownership to the existing real property which were established previously;

inter alia, the legal regulation whereby land, forests and parks which are in areas of particular value and which belong by right of ownership to the state may be transferred to ownership of certain other subjects either gratis or for an unreasonably small price, as well as the legal regulation whereby land, forests, parks and water bodies which are in areas of particular value and which belong by right of ownership to the state may be transferred to ownership of other persons when the rights of ownership are being restored to them in equivalent kind, i.e. when one transfers to ownership of the person, who did not have the ownership right to the object that is in areas of particular value—land, forest or park—precisely such object in kind, would lack constitutional grounds.

5. It needs to be noted that from the very beginning of the process of restitution it was prohibited to restore the rights of ownership in kind to the forests which are in territories of special value, inter alia, in state parks, state reserves, or such restoration of the rights of ownership was highly limited. For instance, under Article 13 (wording of 18 June 1991) of the Law „On the Procedure and Conditions of Restoration of Citizens’ Rights of Ownership to the Existing Real Property”, the forests of the first group were purchased for the needs of the state, to which, inter alia, forests of national parks belonged under Paragraph 3 (wording of 21 June 1979) of Article 28 of the then valid Forests Code.

Later in the Law „On the Procedure and Conditions of Restoration of Citizens’ Rights of Ownership to the Existing Real Property” absolute prohibitions on restoring the rights of ownership in kind to the forest land which was in state parks and state reserves disappeared, however, such restoration of the rights of ownership was subject to considerable limitations: restoration of such rights in kind was permitted only to the citizens residing in the corresponding protected territory or in the villages or small towns adjoining the said territory, while the landed properties of former owners could not be partitioned into parts. The Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (with subsequent amendments and supplements), which was adopted by the Seimas on 1 July 1997 and came into force on 9 July 1997, which replaced the Law „On the Procedure and Conditions of Restoration of Citizens’ Rights of Ownership to the Existing Real Property” (wording of 18 June 1991 with subsequent amendments and supplements), did not (and does not) contain any explicit provisions whereby the forest land which is in state parks and state reserves should be purchased by the state (i.e. not returned to the owners), however, under Item 1 (wording of 1 July 1997 and 2 April 2001) of Article 13 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, forests of state importance are purchased by the state; the areas of such forests are confirmed by the Government.

6. As mentioned before, in the constituent part titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997, inter alia, for the Trakai district 30.7 thousand ha of the area of forests of state importance were confirmed (Section 42).

It is clear from the case material (inter alia, from the scheme prepared by the Ministry of Agriculture and Forestry, under which government resolution No. 1154 of 23 October 1997 confirmed the areas of forests of state importance for the Trakai district) that at that time plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, which are in Varnikai village of the Trakai district, were not assigned to the areas of forests of state importance.

This was done by the Government Resolution (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 28 May 2002) Section 44 whereof confirmed (according to the corresponding scheme prepared by the Ministry of Environment) 33.87 thousand ha of the area of forests of state importance for the Trakai district .

7. It was also mentioned that the fact whether the said person is reasonably claiming to restoration of the rights of ownership to plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, which are in Varnikai village of the Trakai district in kind (whether his application is grounded on the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property) is not a matter of investigation in the constitutional justice case at issue.

In the constitutional justice case at issue the legal regulation established in the Government Resolution (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (initial wording of 23 October 1997) is not a matter of investigation, either.

8. While deciding, subsequent to the petitioner of the Vilnius Regional Administrative Court, a petitioner, whether Section 44 (to the corresponding extent and in the aspect that this legal regulation is impugned by the petitioner) of the constituent part titled “The Areas of Forests of State Importance” of the Government Resolution (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 28 May 2002) with Article 23 of the Constitution and Paragraph 2 (wording of 3 August 2001) of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, it needs to be noted that the Government, under Item 6 (wording of 10 April 2001) of Paragraph 4 of Article 4 of the Forestry Law and Item 1 (wording of 1 July 1997) of Article 13 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, enjoyed the powers to confirm the areas of forests of state importance, thus, also plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, which are in Varnikai village of the Trakai district. The analogous powers of the Government were established also in Item 3 (wording of 26 April 1994)of Article 4 of the Law on Land.

Such powers of the Government stem not only from the aforesaid laws, but also from the constitutional imperatives whereby the Government shall execute laws (Item 2 of Article 94 of the Constitution), that ensuring the protection of districts of particular value as national values of universal importance, and ensuring that natural resources be used moderately and that they be restored and augmented are a public interest the guaranteeing of which is a constitutional obligation of the state. It was also mentioned that the State of Lithuania has always treated and treats the territory, which had been assigned to Trakai Landscape Reserve prior to 1991 and later—to Trakai Historical National Park, as a valuable natural complex—as a protected territory with special landscape (countryside) and botanical zoological value—for which a special legal regime must be established; this territory, inter alia, the complex of Varnikai forest as an inseparable part of this territory, should be specially protected not only due to its national, but also international importance.

9. As mentioned before, the Vilnius Regional Administrative Court, a petitioner, impugns expressis verbis the compliance of Section 44 (to the corresponding extent) the annex titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997 (wording of 28 May 2002) with not entire Paragraph 2 (wording of 3 August 2001) of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, but only with the provision “land shall be given back in kind <…> in the former locality” of the same paragraph. It was also mentioned that this provision pointed out by the petitioner is closely related with other provisions of this paragraph (as well as with other provisions of this law) and if one failed to take account of the fact that not only the general rule “land shall be given back in kind in the former locality” is established in the said paragraph, but also its exception, i.e. it is prescribed that the land purchased by the state is not returned in kind in the former locality, then the investigation subsequent to the petition of the petitioner would become impossible at all.

10. Taking account of the national and international importance of the territory of Trakai Historical National Park, inter alia, the complex of Varnikai forest, as an inseparable part of this territory, there are no grounds to assert that plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, which are in Varnikai village of the Trakai district, had to be necessarily returned to the claimant or claimants in kind, all the more so that one did not state, under the established procedure, the reasonableness of such claims (the fact whether the corresponding application or applications are grounded on the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property).

11. Thus, in itself the mere fact that plots Nos. 4, 5 and 6 of section 106 of the forest area of Trakai Historical National Park, which are in Varnikai village of the Trakai district, were not assigned to the areas of forests of state importance by means of a government resolution, and that this was done only by the Government Resolution (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 28 May 2002), but not earlier, does not provide grounds to assert that the Government acted ultra vires, i.e. that it exceeded its powers.

12. Taking account of the arguments set forth, the conclusion should be drawn that Section 44 of the constituent part titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997 (wording of 28 May 2002) (to the corresponding extent and in the aspect that this legal regulation is impugned by the petitioner) is not in conflict with Paragraph 2 (wording of 3 August 2001) of Article 4 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

13. Having held this, it should also be held that Section 44 of the constituent part titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997 (wording of 28 May 2002) (to the corresponding extent and in the aspect that this legal regulation is impugned by the petitioner) is not in conflict with Article 23 of the Constitution.

III

On the compliance of Section 37 of the constituent part titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997 (wording of 14 July 2005) to the extent that the 0.26 thousand ha of the areas of forests of state importance confirmed (under the corresponding scheme drafted by the Ministry of Environment) to the city of Šiauliai encompass, according to the Šiauliai Regional Administrative Court, a petitioner, also the land formerly owned by A. Donelaitis in the former village of Margiai, with Article 23 of the Constitution, Item 1 (wording of 23 March 2004) of Paragraph 2 of Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, Item 3 (wording of 2 April 2002) of Paragraph 2 of Article 5 and Article 12 (wording of 14 October 2003) of the same law.

1. In the constitutional justice case at issue, one impugns, inter alia, the compliance of Section 37 of the constituent part titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997 (wording of 14 July 2005) to the extent that the 0.26 thousand ha of the areas of forests of state importance confirmed (under the corresponding scheme drafted by the Ministry of Environment) to the city of Šiauliai encompass, according to the Šiauliai Regional Administrative Court, a petitioner, also the land formerly owned by A. Donelaitis in the former village of Margiai, with Article 23 of the Constitution, Item 1 (wording of 23 March 2004) of Paragraph 2 of Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, Item 3 (wording of 2 April 2002) of Paragraph 2 of Article 5 and Article 12 (wording of 14 October 2003) of the same law.

It is clear from the arguments of the Šiauliai Regional Administrative Court, a petitioner, that it had doubts whether the impugned legal regulation is not in conflict with Article 23 of the Constitution, Item 1 (wording of 23 March 2004) of Paragraph 2 of Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, Item 3 (wording of 2 April 2002) of Paragraph 2 of Article 5 and Article 12 (wording of 14 October 2003) of the same law in the aspect that, according to the petitioner, the Government assigned the land formerly owned by A. Donelaitis in the former village of Margiai to the areas of forests of state significance, although one had not adopted a decision regarding the application to restore the rights of ownership to these plots.

The fact whether the corresponding persons are reasonably claiming the restoration of the rights of ownership to the said plots in kind (whether their application is grounded on the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property) is not a matter of investigation in the constitutional justice case at issue. The decisions of these issues is within the jurisdiction of the court that is deciding a corresponding administrative case.

2. It needs to be noted that there is forest, namely, the forest of a town, on the land to which one is seeking to restore the rights of ownership in kind. No one disputes this fact.

3. While deciding, subsequent to the petition of the Šiauliai Regional Administrative Court, a petitioner, requesting an investigation into whether Section 37 of the constituent part titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997 (wording of 14 July 2005) (to the corresponding extent and in the aspect that this legal regulation is impugned by the petitioner) is not in conflict with Article 23 of the Constitution, Item 1 (wording of 23 March 2004) of Paragraph 2 of Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, Item 3 (wording of 2 April 2002) of Paragraph 2 of Article 5 and Article 12 (wording of 14 October 2003) of the same law, it is necessary to elucidate whether the Government enjoyed the powers to assign the said land to forests of state importance.

4. In this context it needs to be noted that government resolutions are substatutory legal acts.

The principle of a state under the rule of law entrenched in the Constitution implies the hierarchy of legal acts. In its acts the Constitutional Court held more than once that the constitutional principle does not permit substatutory legal acts (thus, also government resolutions) to establish any such legal regulation which would compete with that established in the law, and that it demands that substatutory legal acts be not in conflict with laws, constitutional laws and the Constitution, that substatutory legal acts must be adopted on the basis of laws, that a substatutory legal act is an act of application of norms of the law, irrespective of whether the act is of one-off (ad hoc) application, or the permanent validity. The Constitutional Court also held that in certain cases—directly provided for in the Constitution—if the corresponding relations are not regulated by law (which detail and concretise the constitutional legal regulation), the substatutory legal acts, whereby the institutions implement their particular powers expressis verbis established and clearly defined in the Constitution, must be issued while directly invoking the Constitution (the Constitutional Court’s rulings of 5 May 2007 and 13 August 2007).

5. While deciding, subsequent to the petition of the Šiauliai Regional Administrative Court, a petitioner, requesting an investigation into whether Section 37 of the constituent part titled “The Areas of Forests of State Importance” of government resolution No. 1154 of 23 October 1997 (wording of 14 July 2005) (to the corresponding extent and in the aspect that this legal regulation is impugned by the petitioner) is not in conflict with Article 23 of the Constitution, Item 1 (wording of 23 March 2004) of Paragraph 2 of Article 5 of the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, Item 3 (wording of 2 April 2002) of Paragraph 2 of Article 5 and Article 12 (wording of 14 October 2003) of the same law, account should be taken of the legal regulation established in the Forestry Law at the time when the Government adopted the Resolution (No. 765) “On Amending the Resolution of the Government of the Republic of Lithuania (No. 1154) ‘On the Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 14 July 2005.

Paragraph 4 (wording of 10 April 2001) of Article 4 of the Forestry Law provides, inter alia, that “forests of state importance shall belong to the Republic of Lithuania by right of exclusive ownership” and “that forests of state importance shall be: <…> (2) town forest; <…> (6) other forests, which have been assigned to forests of state importance by government resolution.”

Besides, the provision that forests of state importance shall belong to the Republic of Lithuania by right of exclusive ownership, if such forests are assigned, inter alia, to town forests, was consolidated in the Forestry Law from the very beginning (when the Seimas adopted this law on 22 November 1994).

Thus, regardless of the fact whether the Government has formally assigned certain town forests to forests of state importance, under the Forestry Law, town forests are forests of state importance.

6. It needs to be noted that although, according to the Šiauliai Regional Administrative Court, a petitioner, the land formerly owned by A. Donelaitis in the former village of Margiai is assigned in Section 37 of the constituent part titled “The Areas of Forests of State Importance” of the Government Resolution (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 14 July 2005) to forests of state importance and is marked as such in the corresponding scheme prepared by the Ministry of Environment, in fact it is not so. The said land in the aforementioned scheme is not marked as a forest of state importance.

7. It has been held in this ruling of the Constitutional Court that the land in the former village of Margiai to which one seeks to restore the rights of ownership in kind is a forest and that this forest is a town forest.

It has been held in this ruling of the Constitutional Court that, regardless of the fact whether the Government has formally assigned certain town forests to forests of state importance, under the Forestry Law, town forests are forests of state importance.

Thus, under Item 2 of Paragraph 4 (wording of 10 April 2001) of Article 4 of the Forestry Law, the said forest in the former village of Margiai is a forest of state importance, although it, as mentioned before, is not assigned to forests of state importance in Section 37 of the constituent part titled “The Areas of Forests of State Importance” of the Government Resolution (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 14 July 2005) and the corresponding scheme prepared by the Ministry of Environment.

8. Taking account of the fact that in Section 37 of the constituent part titled “The Areas of Forests of State Importance” of the Government Resolution (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 14 July 2005) (according to the corresponding scheme prepared by the Ministry of Environment) does not establish anything that, according to the Šiauliai Regional Administrative Court, a petitioner, is established in it, it should be held that, in this part of the constitutional justice case at issue, there is no longer a matter of investigation subsequent to the petition of the petitioner, requesting an investigation into the compliance of Section 37 of the constituent part titled “The Areas of Forests of State Importance” of the Government Resolution (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 14 July 2005) (to the corresponding extent and in the aspect that this legal regulation is impugned by the petitioner) with the Constitution and the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

9. Paragraph 2 of Article 80 (regulating refusals of the Constitutional Court to consider inquiries) of the Law on the Constitutional Court provides that if in the course of the consideration of the inquiry the matter under consideration ceases to exist, the Constitutional Court shall dismiss the instituted legal proceedings on the grounds thereof.

This provision of the Law on the Constitutional Court should also be applied mutatis mutandis to the consideration of petitions requesting an investigation into the compliance of a legal act with the Constitution (with another legal act of higher legal force) and to the adoption of corresponding decisions (the Constitutional Court’s ruling of 21 September 2006).

Under Paragraph 3 of Article 69 of the Law on the Constitutional Court, in the event that the grounds for refusal to consider a petition have been established after the commencement of the investigation of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, 56, 69 and Paragraph 2 of Article 80 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 Section 44 of the constituent part titled “The Areas of Forests of State Importance” of the Resolution of the Government of the Republic of Lithuania (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 28 May 2002; Official Gazette Valstybės žinios, 2002, No. 54-2121) to the extent that the 33.87 thousand ha of the area of forests of state importance confirmed (according to the corresponding scheme prepared by the Ministry of Environment) for the Trakai district encompass also plots Nos. 4, 5, and 6 of forest section 106 of Trakai Historical National Park which are in Varnikai village of the Trakai district, is not in conflict with the Constitution of the Republic of Lithuania and Paragraph 2 (wording of 3 August 2001) of Article 4 of the Republic of Lithuania’s Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

2. To dismiss the part of the case regarding the compliance of Section 37 of the constituent part titled “The Areas of Forests of State Importance” of the Resolution of the Government of the Republic of Lithuania (No. 1154) “On the Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 14 July 2005) to the extent that the 0.26 thousand ha of the areas of forests of state importance confirmed (under the corresponding scheme drafted by the Ministry of Environment) to the city of Šiauliai encompass, according to the Šiauliai Regional Administrative Court, a petitioner, also the land formerly owned by A. Donelaitis in the former village of Margiai, with Article 23 of the Constitution of the Republic of Lithuania, Item 1 (wording of 23 March 2004) of Paragraph 2 of Article 5 of the Republic of Lithuania’s Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property, Item 3 (wording of 2 April 2002) of Paragraph 2 of Article 5 and Article 12 (wording of 14 October 2003) of the same law.

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

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

Justices of the Constitutional Court:             Armanas Abramavičius

                                                                                  Egidijus Kūris

                                                                                  Kęstutis Lapinskas

                                                                                  Zenonas Namavičius

                                                                                  Ramutė Ruškytė

                                                                                  Vytautas Sinkevičius

                                                                                  Stasys Stačiokas

                                                                                  Romualdas Kęstutis Urbaitis