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On giving back forests in the town of Palanga

Case No. 25/2007

 

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 1154 “ON CONFIRMATION OF FOREST AREAS OF STATE IMPORTANCE” OF 23 OCTOBER 1997 (WORDING OF 3 NOVEMBER 2004) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND PARAGRAPH 2 (WORDING OF 3 AUGUST 2001) OF ARTICLE 4 AND ITEM 1 (WORDING OF 23 MARCH 2004) OF PARAGRAPH 2 OF ARTICLE 5 OF THE REPUBLIC OF LITHUANIA LAW ON THE RESTORATION OF THE RIGHTS OF OWNERSHIP OF CITIZENS TO THE EXISTING REAL PROPERTY

 

9 March 2010

Vilnius

 

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

with the secretary of the hearing—Daiva Pitrėnaitė,

in the presence of the representative of the Government of the Republic of Lithuania, the party concerned, who was Agnė Murauskaitė, Head of the Law Application Division of the Legal Department of the Ministry of Environment 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 2 March 2010 heard constitutional justice case No. 25/2007 subsequent to the petition (No. 1B-28/2007) of the Klaipėda Regional Administrative Court, the petitioner, requesting to investigate whether Resolution of the Government of the Republic of Lithuania No. 1370 “On Amending Resolution of the Government of the Republic of Lithuania No. 1154 ‘On Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 3 November 2004 to the extent that a land lot, to which one aspires to restore the rights of ownership in kind, 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 and Item 1 of Paragraph 2 of Article 5 of the Republic of Lithuania Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

The Constitutional Court

has established:

I

The Klaipėda Regional Administrative Court, the petitioner, was investigating an administrative case. By its ruling, the said court suspended the consideration of the case and applied to the Constitutional Court with a petition, requesting to investigate whether Government Resolution No. 1370 “On Amending Resolution of the Government of the Republic of Lithuania No. 1154 ‘On Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 3 November 2004 to the extent that, according to the petitioner, the land of A. M., the former owner, which was recorded as vacant (non-built-up) land by Decision of the Palanga City Municipality No. 75 of 13 June 2003, and with regard to which, subsequent to the schemes drafted by the Ministry of Environment, the plan, size, boundaries, limitations and value of the land lot (Vanagupės St. 46, Palanga) to be returned in kind were confirmed by Order of Director of the Administration of the Palanga City Municipality No. A1-4.1.-359 of 16 June 2004, was assigned to the forest areas of state importance is not in conflict with Article 23 of the Constitution and Paragraph 2 of Article 4 and 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.

II

The petition of the Klaipėda Regional Administrative Court, the petitioner, is substantiated by the fact that when a citizen asked to adopt a decision to restore the rights of ownership to a land lot in the town of Palanga, this lot was included into the lists of forest areas of state importance approved by Government Resolution No. 1370 “On Amending Resolution of the Government of the Republic of Lithuania No. 1154 ‘On Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 3 November 2004. The petitioner had a doubt whether the Government, by its resolution, reasonably assigned the land, which was held by the citizen A. M. until the nationalisation, to the forest areas of state importance without taking a decision regarding the request submitted by the claimant to restore the rights of ownership to the said land. The petitioner believes that after this land had been assigned to the forest areas of state importance by the Government resolution, the claimant was deprived of an opportunity to restore the rights of ownership to this land, therefore, the petitioner doubts whether the legal regulation established in this Government resolution is not in conflict with Article 23 (property shall be inviolable, the rights of ownership shall be protected by laws, and property may be taken over only for the needs of society according to the procedure established by law and shall be justly compensated for) of the Constitution and Paragraph 2 (land shall be given back in kind in the former locality) of Article 4 and Item 1 (the rights of ownership to land shall be restored by giving back in kind the vacant (non-built-up) land in the former locality, the plans of which are approved by the director of the municipal administration under procedure established by the Government) of Paragraph 2 of Article 5 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

III

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from A. Murauskaitė, the representative of the Government, the party concerned, wherein it is maintained that the disputed legal regulation was not in conflict with the Constitution and with the aforesaid provisions of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

The position of A. Murauskaitė, the representative of the Government, the party concerned, is substantiated by the following arguments.

1. From a fragment of the Scheme of Forest Areas of State Importance of the State Forests Cadastre of the Republic of Lithuania, as well as from additional graphical and visual material, which was presented by the State Forest Survey Service it is clear that there is forest on the disputed land lot (basic forest lot 28, Section 105 of the Palanga City Municipality forests of the Palanga Forestry Unit of the Kretinga Forest Enterprise (hereinafter referred to as basic forest lot 28, Section 105 of the Palanga City Municipality forests), which was assigned to the forest areas of state importance by Government Resolution No. 1370 “On Amending Resolution of the Government of the Republic of Lithuania No. 1154 ‘On Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 3 November 2004. The submitted forest evaluation indexes and the visual material demonstrate that the forest which grows on the said lot conforms to the criteria of forest established in Paragraph 1 of Article 2 of the Republic of Lithuania Forestry Law: it is a tract of land the area of which is not less than 0.1 hectares, covered by trees, the adult height of which in their growth place reaches not less than 5 meters, other forest vegetation, including sparse area or area that lost vegetation due to human activity or natural causes (felling areas, burned areas, clearings). The specified forest is within the territory of the town of Palanga, therefore it is ascribed to the category of town forests, whereas, under Article 5 of the Forestry Law, town forests are forests of state importance.

2. Town forests have a special ecological value. They improve the quality of city environment and diminish the negative impact on the latter. Town forests also perform important social and recreational functions, while securing quality rest of the public in urban areas. The legal regulation establishing limitation to the restoration of the rights of ownership to town forests is aimed at protecting other values (natural resources, environment) which are defended by the Constitution, therefore such limitations are legitimate and necessary.

3. When the Government implements the powers granted to it by law to approve the schemes of forest areas of state importance, the status of the forest which is in the territory of a town is not changed due to inclusion of town forests into such schemes: the legal regime is applied to such a forest. Even if the Government did not include an area, which is in the territory of a town and which conforms to the criteria of forest, into the schemes of forests areas of state importance, under the Forestry Law, such territory would be regarded as a forest of state importance, which is exclusive ownership of the state and the rights of ownership could not be restored to it.

IV

At the Constitutional Court hearing, A. Murauskaitė, the representative of the Government, the party concerned, virtually reiterated the arguments set forth in her written explanations and answered to questions of justices of the Constitutional Court.

The Constitutional Court

holds that:

I

1. The Klaipėda Regional Administrative Court, the petitioner, requests to investigate whether Government Resolution No. 1370 “On Amending Resolution of the Government of the Republic of Lithuania No. 1154 ‘On Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 3 November 2004 to the extent that, according to the petitioner, the land of A. M., the former owner, which was recorded as vacant (non-built-up) land by Decision of the Palanga City Municipality No. 75 of 13 June 2003, and with regard to which, subsequent to the schemes drafted by the Ministry of Environment, the plan, size, boundaries, limitations and value of the land lot (Vanagupės St. 46, Palanga) to be returned in kind were confirmed by Order of Director of the Administration of the Palanga City Municipality No. A1-4.1.-359 of 16 June 2004, was assigned to the forest areas of state importance is not in conflict with Article 23 of the Constitution and Paragraph 2 of Article 4 and 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.

2. On 3 November 2004, the Government adopted Resolution No. 1370 “On Amending Resolution of the Government of the Republic of Lithuania No. 1154 ‘On Confirmation of Forest Areas of State Importance’ of 23 October 1997” which came into force on 7 November 2004.

This Government resolution prescribed:

1. To amend Resolution of the Government of the Republic of Lithuania No. 1154 ‘On Confirmation of Forest Areas of State Importance’ of 23 October 1997 (Official Gazette Valstybės žinios, 1997, No. 97-2451; 2002, No. 54-2121; 2003, No. 74-3443; 2004, No. 26-815, No. 143-5233):

1.1. To set forth Item 1 as follows:

1. To confirm the forest areas of state importance of 1093.71 thousand hectares (attached) subsequent to the schemes drafted by the Ministry of Environment.’

1.2. To set forth in a new wording the forest areas of state importance confirmed by the said resolution (attached).

2. To commission the Ministry of Environment to submit the schemes specified in Item 1 to chiefs of counties and to other interested institutions.”

3. Thus, Government Resolution No. 1370 “On Amending Resolution of the Government of the Republic of Lithuania No. 1154 ‘On Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 3 November 2004 amended the corresponding provisions of Government Resolution No. 1154 (wording of 23 September 2004), inter alia it newly confirmed the forest areas of state importance.

One is to draw a conclusion that the petitioner requests to investigate whether Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) (hereinafter also referred to as Government Resolution No. 1154 (wording of 3 November 2004)) is not in conflict with Article 23 of the Constitution and with respective articles of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

4. Government Resolution No. 1154 (wording of 3 November 2004) has a constituent part titled “Forest Areas of State Importance” which inter alia confirmed forest areas of state importance of 3.33 thousand hectares to the Palanga City Municipality (Section 19).

5. The Klaipėda Regional Administrative Court, the petitioner, does not indicate the wording of Paragraph 2 of Article 4 and that 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 with which, in its opinion, the disputed Government Resolution No. 1154 (wording of 3 November 2004) is in conflict (to the corresponding extent); it is clear from the arguments of the petition and the case material that they are Paragraph 2 (wording of 3 August 2001) of Article 4 and 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.

6. As it is obvious from the material in the constitutional justice case at issue, inter alia from fragment No. P0707-0013 of the Scheme of Forest Areas of State Importance of the State Forests Cadastre of the Republic of Lithuania of 30 July 2007 submitted by the State Forest Survey Service (under Item 15 of the Regulations for the State Forests Cadastre of the Republic of Lithuania approved by Item 2 of Resolution of the Government of the Republic of Lithuania No. 1255 “On Founding the State Forests Cadastre of the Republic of Lithuania and on Approving Its Regulations” of 9 October 2003, the State Forest Survey Service is the establishment managing the cadastre), the forest areas of state importance of 3.33 thousand hectares confirmed to the Palanga City Municipality by Government Resolution No. 1154 (wording of 3 November 2004) also encompassed the lot which is situated in basic forest lot 28, Section 105 of the Palanga City Municipality forests (the rights of ownership are sought to be restored in kind to a part of this lot).

7. Thus, the Constitutional Court will investigate whether Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) to the extent that the forest areas of state importance of 3.33 thousand hectares confirmed (subsequent to the corresponding scheme drafted by the Ministry of Environment) to the Palanga City Municipality also encompasses basic forest lot 28, Section 105 of the Palanga City Municipality forests is not in conflict with Article 23 of the Constitution and Paragraph 2 (wording of 3 August 2001) of Article 4 and 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.

8. It needs to be noted that the fact whether the concrete person reasonably aspires to restore the rights of ownership to the said disputed lot is not a matter of investigation in this constitutional justice case. The decision of these questions are within the jurisdiction of the court that is considering the corresponding case on restoration of the rights of ownership.

II

On the compliance of Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) to the extent that the forest areas of state importance of 3.33 thousand hectares confirmed (subsequent to the corresponding scheme drafted by the Ministry of Environment) to the town of Palanga also encompasses basic forest lot 28, Section 105 of the Palanga City Municipality forests with Paragraph 2 (wording of 3 August 2001) of Article 4 and 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.

1. In the opinion of the petitioner, Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) to the corresponding extent is in conflict inter alia with Paragraph 2 (wording of 3 August 2001) of Article 4 and 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 due to the fact that after basic forest lot 28, Section 105 of the Palanga City Municipality forests had been assigned to forest areas of state importance by the disputed Government resolution without taking a decision regarding the request submitted by the claimant to restore the rights of ownership to the said land in kind, the claimant, according to the petitioner, was deprived of an opportunity to implement this right.

2. In the context of the constitutional justice case at issue first of all it is necessary to elucidate the notion of forest, the concept of forests of state importance, as well as the purpose and status of basic forest lot 28, Section 105 of the Palanga City Municipality forests.

3. When the independent State of Lithuania was restored on 11 March 1990, the Code of Forests of the Republic of Lithuania adopted on 21 June 1979 was in force, under Article 1 whereof this code regulated forestry relations, while under Paragraph 1 of Article 28 of this code, forests of state importance were distributed in first, second, and third groups. Paragraph 2 of Article 28 of the said code prescribed that “to the first group shall belong the forests which perform first of all these functions: <...> sanitary-hygienic and wellness (town forests, <...>)”.

4. On 22 November 1994, the Seimas of the Republic of Lithuania adopted the Republic of Lithuania Forestry Law (it came into force on 1 January 1995). Under Article 27 of the Forestry Law (wording of 22 November 1994), upon the entry of this law into force, the Code of Forests became no longer valid.

In the context of the constitutional justice case at issue it needs to be noted that the features according to which a respective land lot is regarded as forest were established in Paragraph 3 of Article 3 of the Forestry Law (wording of 22 November 1994): forest is defined as a tract of land not less than 0.1 ha, covered by trees or other forest vegetation or temporary lost of it (cleared or burned areas). The Forestry Law (wording of 22 November 1994) was amended and/or supplemented more than once, however, the said legal regulation established therein remained intact till 1 July 2001.

On 10 April 2001, the Seimas adopted the Republic of Lithuania Law on Amending the Forestry Law by Article 1 whereof the Forestry Law (wording of 22 November 1994) was amended and set forth in a new wording. Under Article 1 of the Republic of Lithuania Law on Implementing the Forestry Law, which was adopted on the same day, the Forestry Law of the new wording came into force on 1 July 2001. Under Paragraph 1 of Article 2 of the Forestry Law (wording of 10 April 2001) forest is a tract of land the area of which is not less than 0.1 hectares, covered by trees, the adult height of which in their growth place reaches not less than 5 meters, other forest vegetation, including sparse area or area that lost vegetation due to human activity or natural causes (felling areas, burned areas, clearings). The Forestry Law (wording of 10 April 2001) has been amended and/or supplemented more than once, however, the said legal regulation established therein has remained intact.

5. The material of the constitutional justice case at issue, inter alia the data submitted by competent state institutions, allow to state that part of the land of its former owner A. M., to which the restoration of the rights of ownership in kind is being sought:

is covered by basic forest lot 28, Section 105 of the Palanga City Municipality forests, which is assigned to forest areas of state importance by Government Resolution No. 1370 “On Amending Resolution of the Government of the Republic of Lithuania No. 1154 ‘On Confirmation of Forest Areas of State Importance’ of 23 October 1997” of 3 November 2004 (Document of the State Forest Survey Service No. 576 “On Submission of Information” of 31 July 2007, fragment No. P0707-0013 of the Scheme of Forest Areas of State Importance of the State Forests Cadastre of the Republic of Lithuania of 30 July 2007);

was attributed to the territory of the town of Palanga as far back as in 1970 (Order of the Presidium of the Supreme Soviet of the Lithuanian SSR “On Abolishing the Local Administrative Unit of Šventoji of the Kretinga District” of 30 June 1970; Document of the Palanga City Municipality No. (19.4)-D3-472 “On Submission of Information for the Constitutional Justice Case” of 22 February 2010).

6. According to the data of the State Forests Cadastre of the Republic of Lithuania, stands grow in basic forest lot 28, Section 105 of the Palanga City Municipality forests, the age of the stands is 55 years, the height of the trees is 19 metres, the area of the forest is 0.6 hectares, the type of the stands is that of forest parks, and their density is medium (Note of State Forest Survey Service No. TA 0707-0004 “Regarding the Forest Evaluation Indexes of the Forests Registered in the State Forests Cadastre of the Republic of Lithuania” of 30 July 2007).

Thus, as it is clear from fragment No. P0707-0013 of the Scheme of Forest Areas of State Importance of the State Forests Cadastre of the Republic of Lithuania of 30 July 2007 submitted by the State Forests Survey Service and from the forest evaluation indexes registered in the State Forests Cadastre of the Republic of Lithuania, basic forest lot 28, Section 105 of the Palanga City Municipality forests was and is in conformity with the notion of forest entrenched in Paragraph 3 of Article 3 of the Forestry Law (wording of 22 November 1994) and in Paragraph 1 of Article 2 of the Forestry Law (wording of 10 April 2001).

7. Paragraph 1 of Article 2 of the Forestry Law (wording of 10 April 2001) prescribed that “‘town forests’ mean forests which are in the territory of towns”.

It has been mentioned that the territory in which there is basic forest lot 28, Section 105 of the Palanga City Municipality forests was attributed to the territory of the town of Palanga as far back as in 1970.

Thus, it is clear from the material of this constitutional justice case that there is town forest in basic forest lot 28, Section 105 of the Palanga City Municipality forests.

8. Item 3 of Paragraph 6 of Article 5 of the Forestry Law, which was adopted by the Seimas on 22 November 1994 and which came into force on 1 January 1995 prescribed that “Forests of State importance shall belong by the exclusive right of ownership to the Republic of Lithuania if the forests are assigned to: <...> 3) <...> town forests <...>”.

Item 2 of Paragraph 4 of Article 4 of the Forestry Law (wording of 10 April 2001) prescribes that “<…> Forests of state importance shall be: <…> 2) town forests; <...>. This provision of the Forestry Law has not been amended or supplemented.

Thus, the Forestry Law established and establishes that town forests are forests of state importance.

Thus, the forest which grows on basic forest lot 28, Section 105 of the Palanga City Municipality forests is a forest of state importance.

9. It has been mentioned that the petitioner disputes the compliance (to the corresponding extent) of Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) with inter alia Paragraph 2 (wording of 3 August 2001) of Article 4 and 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.

10. 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 prescribes:

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 attributed to the land subject to buying out 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.”

11. 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 prescribes:

The rights of ownership to the land, which was situated prior to 1 June 1995 within the territory that was attributed in the prescribed manner to towns, shall be restored according to the following procedure:

1) 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 attributed under Article 12 of this Law to the land subject to buying out 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.”

12. Thus, under Paragraph 2 (wording of 3 August 2001) of Article 4 and 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, land and, correspondingly, town land are returned to citizens in kind.

Thus, the provisions of this law regulated the relations linked with returning of land and, correspondingly, town land, which is not forest, to citizens in kind with the exception of the cases when such land is not returned but bought out by the state.

13. Paragraph 2 (wording of 3 August 2001) of Article 4 and 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 make reference to Article 12 (wording of 14 October 2003) of the same law, which establishes the cases when land and, correspondingly, town land is not returned to citizens in kind, but compensated in other ways according to Article 16 (wording of 29 October 2002) of this law.

14. As mentioned, there is town forest in basic forest lot 28, Section 105 of the Palanga City Municipality forests. It needs to be emphasised that the cases when forests are not returned to citizens in kind and citizens are compensated for such forests according to Article 16 (wording of 29 October 2002) of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property are established not in Article 12, but Article 13 thereof.

Article 13 (wording of 29 October 2002) of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property prescribes:

Article 13. Forests and Water Bodies Bought out by the State

Forests and water bodies shall be bought out by the State from the persons specified in Article 2 of this Law and the State shall compensate for them in pursuance with Article 16 of this Law, provided that these forests and water bodies are:

1) assigned to forests of State importance, inland water bodies of State importance. The areas of these forests and water bodies shall be approved by the Government;

2) assigned to state reserves, reserves of state parks and forest reserves plots, national park of the Curonian Peninsula;

3) assigned to town forests, zone 1 of sanitary protection of towns, town parks. Lists of the above-mentioned forests with forest areas indicated therein shall be approved by the Government;

4) assigned to forest genetic preserves, state forest nurseries, state seed-plots and forest seed orchards;

5) assigned to objects of scientific research and training of forestry, as well as of selective seed farming. The areas of these forests shall be approved by the Government;

6) forests of state significance which are situated within a seven-kilometre strip from the Baltic Sea to the Curonian bay;

7) acquired into private ownership in accordance with laws.”

Thus, under Article 13 (wording of 29 October 2002) of this law, the rights of ownership to forests by returning them in kind are not restored if such forests: are assigned to forests of state importance (Item 1); are assigned to town forests (Item 3). Thus, town forests are bought out by the state; for such forests one is compensated by the state according to Article 16 (wording of 29 October 2002) of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

15. It needs to be noted that the legal regulation whereby town forests are not returned to citizens in kind but are bought out by the state by providing compensation for such forests in other ways used to be established in Item 3 (wording of 7 May 1992) of Article 13 of the Republic of Lithuania Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”, as well as in Item 4 (wording of 1 July 1997) of Article 13 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

It also needs to be noted that, under Article 13 (wording of 18 June 1991) of the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”, “forests required by the State shall be bought out (or compensated for) from persons specified in Article 2 of this Law in the manner established in Article 16 of this Law, provided that these forests are assigned to Group 1 forests under the laws of the Republic of Lithuania”. It has been mentioned that Article 28 (wording of 21 June 1979) of the Code of Forests of the Republic of Lithuania prescribed that “to the first group shall belong the forests which perform first of all these functions: <...> sanitary-hygienic and wellness (town forests, <...>)”.

Thus, the principled provision that town forests are not returned to citizens in kind but are bought out by the state was entrenched as far back as from 18 June 1991, when the Seimas adopted the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”.

16. It has been mentioned that, in the opinion of the petitioner, Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) to the corresponding extent is in conflict inter alia with Paragraph 2 (wording of 3 August 2001) of Article 4 and 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 due to the fact that after basic forest lot 28, Section 105 of the Palanga City Municipality forests had been assigned to forest areas of state importance by the disputed Government resolution without taking a decision regarding the request submitted by the claimant to restore the rights of ownership to the said land in kind, the claimant, according to the petitioner, was deprived of an opportunity to implement this right.

Therefore, in the constitutional justice case at issue it is also necessary to elucidate whether the Government enjoyed the powers to assign basic forest lot 28, Section 105 of the Palanga City Municipality forests to forest areas of state importance without taking a decision regarding the request submitted by the claimant to restore the rights of ownership to the said land in kind, i.e. whether the Government was allowed to adopt the disputed resolution to the corresponding extent.

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 that sub-statutory legal acts (thus, also Government resolutions) establish any such legal regulation which would compete with that established in the law, and that it demands that sub-statutory legal acts be not in conflict with laws, constitutional laws and the Constitution, that sub-statutory legal acts must be adopted on the basis of laws, that a sub-statutory legal act is an act of application of norms of the law, irrespective of whether the act is of one-time (ad hoc) application, or of permanent validity (inter alia the Constitutional Court ruling of 6 September 2007).

16.1. At the time when the Government adopted Government resolution No. 1154 of 23 October 1997 (wording of 3 November 2004) which is being disputed to the corresponding extent, Items 1 and 3 (wording of 11 December 2001) of Article 13 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property were in force, wherein it was prescribed: “Forests and water bodies shall be bought out by the State from the persons specified in Article 2 of this Law and the State shall compensate for them in pursuance with Article 16 of this Law, provided that these forests and water bodies are: 1) assigned to forests of state importance, <…>. The areas of these forests <…> shall be approved by the Government; <…> 3) assigned to town forests, zone 1 of sanitary protection of towns, town parks. Lists of the above-mentioned forests with forest areas indicated therein shall be approved by the Government; <...>.

16.2. Thus, under the provision of Item 1 (wording of 11 December 2001) of Article 13 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, the Government had the powers to approve the areas of forests of state importance, whereas under the provision of Item 3 (wording of 11 December 2001) of the same article, the Government had the powers to approve lists of forests assigned to town forests with forest areas indicated therein.

17. It has been mentioned that there is town forest in basic forest lot 28, Section 105 of the Palanga City Municipality forests.

In this context it needs to be noted that in the Constitutional Court ruling of 6 September 2007 wherein one investigated to the corresponding extent the compliance of Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 14 July 2005) with the Constitution and the provisions of articles of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property it was held that regardless of the fact whether the Government had formally attributed certain town forests to forests of state importance, under the Forestry Law, town forests were forests of state importance.

In itself, the mere fact that basic forest lot 28, Section 105 of the Palanga City Municipality forests for some time was not assigned to forest areas of state importance by a resolution of the Government and that this was done only after Government Resolution No. 1154 of 23 October 1997 had been set forth in the wording of 3 November 2004 without taking a decision regarding the request submitted by the claimant to restore the rights of ownership to this portion of land, does not constitute grounds to assert that the Government was acting ultra vires, i.e. that it exceeded its powers.

18. It has been mentioned that there is town forest in basic forest lot 28, Section 105 of the Palanga City Municipality forests. Thus, this lot, as town forest, under Item 2 of Paragraph 4 of Article 4 of the Forestry Law (wording of 10 April 2001), which provides that town forests are forests of state importance, and, under Item 3 (wording of 11 December 2001) of Article 13 of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property, such a lot is not returned to citizens in kind, but must be bought out by the state.

In this constitutional justice case it has already been mentioned that the principled provision that town forests are not returned to citizens in kind but are bought out by the state was entrenched as far back as from 18 June 1991, when the Seimas adopted the Law “On the Procedure and Conditions of the Restoration of the Rights of Ownership of Citizens to the Existing Real Property”.

19. It has also been mentioned that for the forests bought out by the state citizens are compensated by the state in the ways established in Article 16 (wording of 29 October 2002) of the Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

20. It needs to be noted that, in its ruling of 20 May 2008, the Constitutional Court also held that the legal regulation which establishes the alternatives of restoration of the rights of ownership in kind is not in conflict with the purposes of restitution and with the constitutional principle of protection of the rights of ownership.

21. It has been mentioned that Paragraph 2 (wording of 3 August 2001) of Article 4 and 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 (with whose regard the petitioner disputes, to the corresponding extent, Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004)) regulate the relations linked with returning of land and, correspondingly, town land, which is not forest, to citizens in kind.

It has also been mentioned that the lot to which the restoration of the rights of ownership in kind is claimed is town forest.

22. Thus, there are no legal grounds to assert that the legal regulation established in Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) to the extent that the forest areas of state importance of 3.33 thousand hectares confirmed (subsequent to the corresponding scheme drafted by the Ministry of Environment) to the town of Palanga also encompasses basic forest lot 28, Section 105 of the Palanga City Municipality forests is not in conformity with Paragraph 2 (wording of 3 August 2001) of Article 4 and 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.

23. Taking account of the arguments set forth, one is to draw a conclusion that Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) to the extent that the forest areas of state importance of 3.33 thousand hectares confirmed (subsequent to the corresponding scheme drafted by the Ministry of Environment) to the town of Palanga also encompasses basic forest lot 28, Section 105 of the Palanga City Municipality forests is not in conflict with Paragraph 2 (wording of 3 August 2001) of Article 4 and 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.

III

On the compliance of Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) to the extent that the forest areas of state importance of 3.33 thousand hectares confirmed (subsequent to the corresponding scheme drafted by the Ministry of Environment) to the town of Palanga also encompasses basic forest lot 28, Section 105 of the Palanga City Municipality forests with Article 23 of the Constitution.

1. It has been mentioned that, in the opinion of the petitioner, Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) to the corresponding extent is in conflict inter alia with Article 23 of the Constitution due to the fact that after basic forest lot 28, Section 105 of the Palanga City Municipality forests had been assigned to forest areas of state importance by the disputed Government resolution without taking a decision regarding the request submitted by the claimant to restore the rights of ownership to the said land, the claimant was deprived of an opportunity to implement this right.

2. Article 23 of the Constitution provides that property shall be inviolable (Paragraph 1); the rights of ownership shall be protected by laws (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).

The provisions of Article 23 of the Constitution are to be construed also while taking account 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. This provision 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 (Constitutional Court ruling of 6 September 2007); 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 (Constitutional Court rulings of 8 July 2005, 14 March 2006, 6 September 2007).

3. It needs to be noted that the State of Lithuania, while striving to restore justice in part at least, i.e. to restore the violated rights of ownership, chose restricted restitution, but not restitutio in integrum; the restoration of justice when the owners are compensated for the existing real property which has not been returned in kind has two sides: it is justice in regard of the owner as well as the entire society; the unlawful actions of the occupation government inflicted enormous damage not only on the owners whose rights of ownership were denied but also on the whole society and the entire state; while restoring justice in regard of the owners, one cannot ignore justice in regard of the entire society whose members are also the owners as well; in the process of the restoration of the rights of ownership one must strive for a balance between the persons whose rights are being restored and the interests of the entire society (Constitutional Court rulings of 4 March 2003 and 5 July 2007).

4. The Constitutional Court has held more than once that it is permitted that laws establish that objects of property (which are bought out by the state) are not returned in kind to the persons who have the right to the restoration of the rights of ownership (Constitutional Court rulings of 5 July 2007, 6 September 2007, 20 May 2008, decision of 4 July 2008); the provision of the restitution laws that if it is impossible to retrieve the property in kind, compensation must given, is not in conflict with the principles of inviolability of property and of the protection of ownership rights, since fair compensation also ensures restoration of ownership rights (inter alia Constitutional Court rulings of 5 July 2007, 6 September 2007, decision of 4 July 2008).

As mentioned, in its ruling of 20 May 2008, the Constitutional Court also held that the legal regulation establishing the alternatives of restoration of the rights of ownership in kind is not in conflict with the purposes of restitution and with the constitutional principle of protection of the rights of ownership.

While interpreting the content of Article 23 of the Constitution in the context of the restoration of the rights of ownership to the existing real property, the Constitutional Court has held in its rulings the following more than once: until his property is restored or he is paid an appropriate compensation for it, the subjective rights of the former owner to a specific property are not restored yet (Constitutional Court ruling of 20 May 2008); the legal meaning of the decision of the institution authorised by the state to restore property in kind or compensate for it is that only from this proper moment the former owner acquires the rights of ownership to such property (Constitutional Court rulings of 27 May 1994, 4 March 2003 and 20 May 2008).

5. It has been held in this ruling of the Constitutional Court that, in itself, the mere fact that basic forest lot 28, Section 105 of the Palanga City Municipality forests for some time was not assigned to forest areas of state importance by a resolution of the Government and that this was done only after Government Resolution No. 1154 of 23 October 1997 had been set forth in the wording of 3 November 2004 without taking a decision regarding the request submitted by the claimant to restore the rights of ownership to this portion of land, does not constitute grounds to assert that the Government was acting ultra vires, i.e. that it exceeded its powers.

It also needs to be mentioned that the Constitutional Court has held that, regardless of the fact whether the Government has formally attributed certain town forests to forests of state importance, under the Forestry Law, town forests are forests of state importance (Constitutional Court ruling of 6 September 2007).

6. It has been mentioned that, under the Constitution, fair compensation also ensures restoration of the rights of ownership.

7. Thus, there are no grounds to assert that the legal regulation established in Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) to the extent that the forest areas of state importance of 3.33 thousand hectares confirmed (subsequent to the corresponding scheme drafted by the Ministry of Environment) to the town of Palanga also encompasses basic forest lot 28, Section 105 of the Palanga City Municipality forests deviated from the imperatives of the rights of ownership arising from Article 23 of the Constitution.

8. Taking account of the arguments set forth, one is to draw a conclusion that that the legal regulation established in Government Resolution No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) to the extent that the forest areas of state importance of 3.33 thousand hectares confirmed (subsequent to the corresponding scheme drafted by the Ministry of Environment) to the town of Palanga also encompasses basic forest lot 28, Section 105 of the Palanga City Municipality forests is not in conflict with Article 23 of the Constitution.

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

ruling:

1. To recognise that that Resolution of the Government of the Republic of Lithuania No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) (Official Gazette Valstybės žinios, 2004, No. 162-5910) to the extent that the forest areas of state importance of 3.33 thousand hectares confirmed (subsequent to the corresponding scheme drafted by the Ministry of Environment) to the town of Palanga also encompasses basic forest lot 28, Section 105 of the Palanga City Municipality forests is not in conflict with Paragraph 2 (wording of 3 August 2001) of Article 4 and Item 1 (wording of 23 March 2004) of Paragraph 2 of Article 5 of the Republic of Lithuania Law on Restoration of the Rights of Ownership of Citizens to the Existing Real Property.

2. To recognise that the legal regulation established in Resolution of the Government of the Republic of Lithuania No. 1154 “On Confirmation of Forest Areas of State Importance” of 23 October 1997 (wording of 3 November 2004) (Official Gazette Valstybės žinios, 2004, No. 162-5910) to the extent that the forest areas of state importance of 3.33 thousand hectares confirmed (subsequent to the corresponding scheme drafted by the Ministry of Environment) to the town of Palanga also encompasses basic forest lot 28, Section 105 of the Palanga City Municipality forests is not in conflict with Article 23 of the Constitution of the Republic of Lithuania.

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

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

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