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On returning a petition to the petitioner

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING TO INVESTIGATE THE COMPLIANCE OF THE PROVISIONS OF THE MANAGEMENT PLAN OF CURONIAN SPIT NATIONAL PARK, AS APPROVED BY THE RESOLUTION (NO. 702) OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA OF 6 JUNE 2012, WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA AND LAWS

 8 January 2013

Vilnius

 The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

at a procedural sitting of the Constitutional Court considered a petition (No. 1B-39/2012) of a group of Members of the Seimas of the Republic of Lithuania, the petitioner, requesting “to recognise the part of the Management Plan of Curonian Spit National Park, as a decision of authorities relating to the environment and approved by Government resolution No. 702 of 6 June 2012, which is related to the lawfulness (legalisation) of the existing structures of the Preila boatel, as being in conflict with the provisions of Paragraph 3 of Article 53, Paragraph 1 of Article 54 and Paragraph 1 of Article 108 of the Constitution of the Republic of Lithuania, the provision ‘in a state under the rule of law the general principle of law cannot be disregarded whereby one may not enjoy any profit from a violation of law committed by him’ and ‘the effect of such violations of law cannot be made lawful (legalised) under any bases nor any circumstances by means of decisions later adopted by certain institutions or officials’ of the Constitutional Court’s ruling of 14 March 2006, the international obligation of Lithuania concerning the inclusion in the UNESCO and the protection of the Curonian Spit, Paragraph 1 of Article 4.103 of the CC and Paragraph 3 of Article 1 of the Law on Courts”.

The Constitutional Court

has established:

A petition of a group of Members of the Seimas, the petitioner, requesting to investigate the compliance of the Management Plan of Curonian Spit National Park, as approved by the Resolution (No. 702) of the Government of the Republic of Lithuania “On the Approval of the Management Plan of Curonian Spit National Park” of 6 June 2012 (hereinafter also referred to as the Government resolution (No. 702) of 6 June 2012), with the Constitution of the Republic of Lithuania and laws, was received at the Constitutional Court.

The Constitutional Court

holds that:

  1. The group of Members of the Seimas, the petitioner, requests investigation into whether the Management Plan of Curonian Spit National Park as approved by the Government resolution (No. 702) of 6 June 2012 is not in conflict with Paragraph 3 of Article 53, Paragraph 1 of Article 54 and Paragraph 1 of Article 109 of the Constitution and the provisions of the official constitutional doctrine: “in a state under the rule of law the general principle of law cannot be disregarded whereby one may not enjoy any profit from a violation of law committed by him” and “the effect of such violations of law cannot be made lawful (legalised) under any bases nor any circumstances by means of decisions later adopted by certain institutions or officials”, as well as with “the international obligation of Lithuania concerning the inclusion in the UNESCO and the protection of the Curonian Spit”, with Paragraph 1 of Article 4.103 of the Civil Code of the Republic of Lithuania and Paragraph 3 of Article 1 of the Republic of Lithuania Law on Courts.
  2. Under Item 8 of Paragraph 1 of Article 66 of the Republic of Lithuania Law on the Constitutional Court, a petition for the investigation of the compliance of a legal act with the Constitution, whereby one applies to the Constitutional Court, must contain the position of the petitioner concerning the compliance of an appropriate act with the Constitution and legal support of such position containing reference to laws. A petition must also contain a clearly and precisely formulated petition to the Constitutional Court (Item 9 of Paragraph 1 of Article 66 of the Law on the Constitutional Court).

While construing the said provisions of the Law on the Constitutional Court, the Constitutional Court has held more than once that “the position of the petitioner concerning the compliance of a legal act (part thereof) with the Constitution according to the content of norms and/or the extent of regulation must be indicated clearly and unambiguously, the petition must contain the arguments and reasoning grounding the doubt of the petitioner that the legal act (part thereof) is in conflict with the Constitution. Thus, the petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must clearly indicate concrete articles (parts thereof), items of the legal act the compliance of which with the Constitution is doubtful from the petitioner’s viewpoint, also concrete provisions—norms and/or principles—of the Constitution, with which, in the opinion of the petitioner, the concretely indicated articles or items of the impugned legal act are in conflict (the Constitutional Court’s decision of 11 December 2012). The petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution according to the content of norms and/or the extent of regulation must also clearly set forth the legal reasoning grounding the doubt of the petitioner as regards every concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution is doubtful to the petitioner. Otherwise, the request to investigate the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the extent of regulation must be considered to be not in line with the requirements of Article 66 of the Law on the Constitutional Court” (the Constitutional Court’s decision of 16 April 2004, the ruling of 12 December 2005, the decisions of 29 March 2010, 19 March 2006, 5 March 2012 and 11 December 2012).

It needs to be noted that if the petition requesting to investigate the compliance of a legal act (part thereof) with the Constitution according to the content of norms and/or the extent of regulation indicates neither any concrete articles (parts thereof), items of the legal act, the compliance of which with the Constitution is doubtful to the petitioner, nor concrete provisions—norms and/or principles—of the Constitution with which, in the opinion of the petitioner, the concretely indicated articles (parts thereof) or items of the impugned legal act are in conflict according to the content of norms and/or the extent of regulation, nor the legal reasoning grounding the doubt of the petitioner concerning each concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution according to the content of norms and/or the extent of regulation is doubtful to the petitioner, and in case such a petition was accepted at the Constitutional Court and a case was commenced subsequent to it, one would also restrict the rights of the party concerned, the state institution that has passed the impugned legal act, since it would be more difficult for the party concerned to present explanations concerning the arguments of the petitioner and to prepare for the judicial consideration (the Constitutional Court’s decisions of 16 April 2004, 19 March 2010 and 11 December 2012).

  1. The petitioner impugns “the part” of the Management Plan of Curonian Spit National Park, as a decision of authorities relating to the environment and approved by the Government resolution (No. 702) of 6 June 2012, “which is related to the lawfulness (legalisation) of the existing structures of the Preila boatel”. The group of Members of the Seimas asserts that the Management Plan of Curonian Spit National Park indicates that “the Preila boatel’s area ‘built up with buildings will not be expanded’”, therefore, by this resolution the Government created a possibility to legalise, by means of a peaceful agreement, the buildings which were ordered to be demolished by the Court of Appeal of Lithuania and the Supreme Court of Lithuania. The petitioner neither provides any reasoning regarding this statement upon which its all doubts are in substance grounded, nor explains in any way why and in what manner the impugned resolution creates such an opportunity. In addition, the notion “Preila boatel” used in the petition of the group of Members of the Seimas is not used in the Management Plan of Curonian Spit National Park.

It is clear from the petition of the petitioner that it doubts the discretion of the Government to change the Management Plan of Curonian Spit National Park, however, the group of Members of the Seimas gives no explanation why, in its opinion, the Government does not have such powers or improperly implemented them.

The petition of the group of Members of the Seimas does not indicate any other concrete items, sub-items or provisions thereof of the Government resolution (No. 702) of 6 June 2012 or those of the Management Plan of Curonian Spit National Park, whose constitutionality is doubtful to the petitioner.

  1. The group of Members of the Seimas requests investigation into the compliance of the Management Plan of Curonian Spit National Park with inter alia Paragraph 3 of Article 53, Paragraph 1 of Article 54 of the Constitution and with the international obligation of Lithuania concerning “the inclusion in the UNESCO” and the protection of the Curonian Spit.

The petitioner refers to the provisions of the Constitutional Court’s ruling of 27 June 2007, inter alia those that no decisions related to the administration of the territory of Curonian Spit National Park (inter alia with the detailed plans of the settlements, forest management, land management, water economy, planning of settlements, countryside regeneration, road and engineering communications, etc.) could (or can at present) be adopted without taking account of the Planning Scheme (General Plan) of Curonian Spit National Park approved by the Government and it could not (and cannot at present) be in conflict with the solutions of the said scheme; otherwise, not only the identity and integrity of the Curonian Spit as a unique landscape complex created by nature and man—a territory which is to be protected—would be violated, but one would also violate the imperatives of Articles 53 and 54 of the Constitution, inter alia the provision of Paragraph 1 of Article 54 of the Constitution that the state shall take care of the protection of the natural environment, wildlife and plants, individual objects of nature and areas of particular value and shall supervise a sustainable use of natural resources, their restoration and increase, and the provision of Paragraph 3 of Article 53 that the state and each person must protect the environment from harmful influences; one would also clearly violate the international obligations of the Republic of Lithuania.

The group of Members of the Seimas also submits the following extracts of the 28 April 2010 ruling of the Supreme Court of Lithuania (which was deciding the lawfulness issue of the administrative acts that had approved the detailed plans, of the agreements concluded on the grounds of the latter, and of construction actions carried out in the territory of Curonian Spit National Park) in civil case No. 3K-3-143/2010: “the detailed planning and the construction carried out on the grounds of the latter a threat was created in the Curonian Spit for survival of this territory and its preservation for the posterity”, “the unlawful construction substantially violated the principal aims and provisions of the regime of the territory of Curonian Spit National Park”.

It needs to be noted that the group of Members of the Seimas, the petitioner, while citing the final acts of the Constitutional Court and the Supreme Court of Lithuania, does not substantiate in any way how the Management Plan of Curonian Spit National Park violates Paragraph 3 of Article 53 and Paragraph 1 of Article 54 of the Constitution. Thus, the petitioner provides no legal reasoning regarding the Management Plan of Curonian Spit National Park with the said provisions of the Constitution. It also needs to be noted that the petition of the group of Members of the Seimas does not indicate which concrete international obligations (and where such obligations are entrenched) of the Republic of Lithuania are, according to the petitioner, disregarded by the Government resolution (No. 702) of 6 June 2012 after it approved the Management Plan of Curonian Spit National Park.

  1. The group of Members of the Seimas doubts whether the Management Plan of Curonian Spit National Park is not in conflict with inter alia Paragraph 1 of Article 109 of the Constitution and Paragraph 3 of Article 1 of the Law on Courts.

The petitioner asserts that in the case on lawfulness of buildings of the Preila boatel during the whole judicial process the representatives of the Government supported the demand that the buildings be demolished, therefore, the inconsistency of the Government, i.e. the fact that upon the approval of the Management Plan of Curonian Spit National Park by the Government resolution (No. 702) of 6 June 2012 a possibility was created to conclude a peaceful agreement with the owner of the buildings that were ordered to be demolished by the court, is to be assessed as irrational use of resources of the state and failure to defend the public interest. In the opinion of the group of Members of the Seimas, the Government, while attempting to negate the courts’ rulings by means of the Management Plan of Curonian Spit National Park, assumed the functions of courts and thus violated the provision “in the Republic of Lithuania, justice shall be administered only by courts” Paragraph 1 of Article 109 of the Constitution and the provision “court decisions taken in cases at law may be revised only the court” of Paragraph 3 of Article 1 of the Law on Courts. The petitioner does not substantiate such its statements in any way, it does not explain how, according to the petitioner, the Government, having approved the impugned Management Plan of Curonian Spit National Park, assumed the functions of courts. The petitioner merely points out that disregard for court decisions gives rise legal nihilism and one is allowed to enjoy profit from an unlawful action—a violation of law committed by him. As mentioned before, the group of Members of the Seimas does not explain why, in its opinion, the Government enjoys no powers to change the Management Plan of Curonian Spit National Park.

It needs to be noted that in a state under the rule of law it is presumed that decisions of the state authority institutions (inter alia the Government) consolidated in Paragraph 1 of Article 5 of the Constitution are legitimate and just and that they may not be opposed to one another. The petitioner does not provide any legal arguments why the Management Plan of Curonian Spit National Park impugned by it should be understood as being opposite to the courts’ decisions.

  1. The group of Members of the Seimas doubts whether the Management Plan of Curonian Spit National Park is not in conflict with inter alia Paragraph 1 of Article 4.103 of the Civil Code.

The petitioner asserts that it was established by decisions of the courts that the unlawful acts grossly violated the provisions of the Planning Scheme (General Plan) of Curonian Spit National Park, therefore, the construction permitted on the grounds of the aforesaid acts is unlawful, however, illegal acts cannot produce legal results. The petitioner cites Paragraph 1 of Article 4.103 of the Civil Code wherein it is established that, if a structure (its part) has been built or is being built without authorisation or with authorisation, but in violation of the decisions of the design documentation of the structure, or in violation of the requirements of legal acts, then the use or disposal of such a structure (selling, giving as gift, renting etc.) shall be prohibited; laws shall define which structure (its part) has been built or is being built without authorisation. It needs to be noted that the petitioner does not substantiate its doubt in any way that the Management Plan of Curonian Spit National Park violates Paragraph 1 of Article 4.103 of the Civil Code.

  1. The group of Members of the Seimas requests investigation into the compliance of the Management Plan of Curonian Spit National Park inter alia with the provisions “in a state under the rule of law the general principle of law cannot be disregarded whereby one may not enjoy any profit from a violation of law committed by him” and “the effect of such violations of law cannot be made lawful (legalised) under any bases nor any circumstances by means of decisions later adopted by certain institutions or officials” of the Constitutional Court’s ruling of 14 March 2006. It needs to be noted that the petitioner does not relate in any way these provisions of the official constitutional doctrine with the Constitution and does not indicate any articles, provisions or principles of the latter. In addition, as mentioned before, the petitioner does not explain how, in its opinion, the impugned resolution created a possibility to legalise the unlawful construction of the Preila boatels.
  2. While taking account of the arguments set forth, one is to hold that the petition of the group of Members of the Seimas, the petitioner, requesting investigation into whether the Management Plan of Curonian Spit National Park as approved by the Government resolution (No. 702) of 6 June 2012 is not in conflict with Paragraph 3 of Article 53, Paragraph 1 of Article 54 and Paragraph 1 of Article 109 of the Constitution and the provisions of the official constitutional doctrine: “in a state under the rule of law the general principle of law cannot be disregarded whereby one may not enjoy any profit from a violation of law committed by him” and “the effect of such violations of law cannot be made lawful (legalised) under any bases nor any circumstances by means of decisions later adopted by certain institutions or officials”, as well as with “the international obligation of Lithuania concerning the inclusion in the UNESCO and the protection of the Curonian Spit”, with Paragraph 1 of Article 4.103 of the Civil Code and Paragraph 3 of Article 1 of the Law on Courts, does not meet the requirements established in Items 6, 7 of Paragraph 1 of Article 66 of the Constitutional Court.

If a petition (part thereof) fails to comply with the requirements set forth in Article 66 of the Law on the Constitutional Court, under Article 70 of the Law on the Constitutional Court, such a petition is returned to the petitioner. The return of a petition shall not take away the right to apply to the Constitutional Court according to the common procedure after removal of the deficiencies thereof.

  1. While taking account of this fact, one needs to draw a conclusion that there is a ground to return to the group of Members of the Seimas, the petitioner, the petition requesting investigation into whether the Management Plan of Curonian Spit National Park as approved by the Government resolution (No. 702) of 6 June 2012 is not in conflict with Paragraph 3 of Article 53, Paragraph 1 of Article 54 and Paragraph 1 of Article 109 of the Constitution and the provisions of the official constitutional doctrine: “in a state under the rule of law the general principle of law cannot be disregarded whereby one may not enjoy any profit from a violation of law committed by him” and “the effect of such violations of law cannot be made lawful (legalised) under any bases nor any circumstances by means of decisions later adopted by certain institutions or officials”, as well as with “the international obligation of Lithuania concerning the inclusion in the UNESCO and the protection of the Curonian Spit”, with Paragraph 1 of Article 4.103 of the Civil Code and Paragraph 3 of Article 1 of the Law on Courts.

Conforming to Paragraphs 3 and 4 of Article 22, Paragraph 2 of Article 25, Article 28, Items 6 and 7 of Paragraph 1 of Article 66 and Article 70 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

decision:

To return to the group of Members of the Seimas of the Republic of Lithuania, the petitioner, the petition requesting “to recognise the part of the Management Plan of Curonian Spit National Park, as a decision of authorities relating to the environment and approved by Government resolution No. 702 of 6 June 2012, which is related to the lawfulness (legalisation) of the existing structures of the Preila boatel, as being in conflict with the provisions of Paragraph 3 of Article 53, Paragraph 1 of Article 54 and Paragraph 1 of Article 108 of the Constitution of the Republic of Lithuania, the provision ‘in a state under the rule of law the general principle of law cannot be disregarded whereby one may not enjoy any profit from a violation of law committed by him’ and ‘the effect of such violations of law cannot be made lawful (legalised) under any bases nor any circumstances by means of decisions later adopted by certain institutions or officials’ of the Constitutional Court’s ruling of 14 March 2006, the international obligation of Lithuania concerning the inclusion in the UNESCO and the protection of the Curonian Spit, Paragraph 1 of Article 4.103 of the CC and Paragraph 3 of Article 1 of the Law on Courts”.

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

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

Justices of the Constitutional Court:                         Egidijus Bieliūnas

                                                                                             Toma Birmontienė

                                                                                             Pranas Kuconis

                                                                                             Gediminas Mesonis

                                                                                             Ramutė Ruškytė

                                                                                             Egidijus Šileikis

                                                                                             Algirdas Taminskas

                                                                                             Romualdas Kęstutis Urbaitis

                                                                                             Dainius Žalimas