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THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

DECISION

ON THE PETITION OF THE KLAIPĖDA CITY LOCAL COURT, THE PETITIONER, REQUESTING AN INVESTIGATION INTO WHETHER ITEM 9.2.1.5 OF THE MANAGEMENT PLAN OF THE CURONIAN SPIT NATIONAL PARK, AS APPROVED BY THE 6 JUNE 2012 RESOLUTION (NO. 702) OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA, IS NOT IN CONFLICT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA, THE REPUBLIC OF LITHUANIA’S LAW ON THE PROTECTION OF IMMOVABLE CULTURAL HERITAGE, AND THE REPUBLIC OF LITHUANIA’S LAW ON CONSTRUCTION

2 September 2014, No. KT40-S29/2014

Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, Algirdas Taminskas, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, in its procedural sitting, considered the petition (No. 1B-45/2014) of the Klaipėda City Local Court, the petitioner.

The Constitutional Court

has established:

The Constitutional Court received the petition (No. 1B-45/2014) of the Klaipėda City Local Court “requesting an investigation into:

whether the norms of Item 9.2.1.5 of the Management Plan of the Curonian Spit National Park (Official Gazette Valstybės žinios, 2012, No. 70-3592), as approved by the 6 June 2012 resolution (No. 702) of the Government of the Republic of Lithuania, to the extent that they establish that “the territory at L. Rėzos St. <...> 26A (Juodkrantė) is <...> built up <...>: one residential house and one appurtenance”, are not in conflict with Paragraph 2 of Article 23 of the Constitution and the constitutional principles of justice and a state under the rule of law;

whether the norms of Item 9.2.1.5 of the Management Plan of the Curonian Spit National Park, as approved by the 6 June 2012 resolution (No. 702) of the Government of the Republic of Lithuania, to the extent that they establish that “the territory at L. Rėzos St. <...> 26A (Juodkrantė) is <...> built up <...>: one residential house and one appurtenance”, are not in conflict with the constituent elements of the constitutional principle of a state under the rule of law: the principles of the hierarchy of legal acts and the separation of powers;

whether the norms of Item 9.2.1.5 of the Management Plan of the Curonian Spit National Park, as approved by the 6 June 2012 resolution (No. 702) of the Government of the Republic of Lithuania, to the extent that they establish that “the territory at L. Rėzos St. <...> 26A (Juodkrantė) is <...> built up <...>: one residential house and one appurtenance”, are not in conflict with Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law;

whether the provisions consolidated in Item 9.2.1.5 of the Management Plan of the Curonian Spit National Park, as approved by the 6 June 2012 resolution (No. 702) of the Government of the Republic of Lithuania, are not in conflict with Item 1 of Paragraph 2 and Paragraph 4 of Article 19, Item 2 of Paragraph 2 and Paragraph 5 of Article 22, and Paragraphs 1 and 8 of Article 23 of the Republic of Lithuania’s Law on the Protection of Immovable Cultural Heritage (Official Gazette Valstybės žinios, 1995, No. 3-37; 2004, No. 153-5571 with subsequent amendments and supplements) and the legal regulation established in Article 281 (Elimination of the Consequences of the Construction Carried out Pursuant to an Unlawfully Issued Document Authorising the Construction) of the Republic of Lithuania’s Law on Construction (Official Gazette Valstybės žinios, 1996, No. 32-788; 2001, No. 101-3597 with subsequent amendments and supplements)”.

The Constitutional Court

holds that:

1. On 6 June 2012, the Government adopted the Resolution (No. 702) “On the Approval of the Management Plan of the Curonian Spit National Park”.By means of this resolution, the Government, pursuantto Article 18 of the Republic of Lithuania’s Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) and Paragraph 6 of Article 28 of the Republic of Lithuania’s Law on Protected Areas (wording of 4 December 2001), approved the Management Plan of the Curonian Spit National Park and also recognised that the Government Resolution (No. 1269) “On the Planning Scheme (the General Plan) of the Curonian Spit National Park” of 19 December 1994 (with subsequent amendments and supplements), by means of which the Planning Scheme (the General Plan) of the Curonian Spit National Park had been approved, was no longer valid.

In the Management Plan of the Curonian Spit National Park,inter alia,the principal provisions of the conception of the management of this national park are indicated (Item 1),the general principles of landscape protection and management are applied (Item 4), and also the standard system for landscape management zones and their regulations is adapted to the landscape of the Curonian Spit (taking into account the uniqueness and specific use of the Curonian Spit; Item 5), i.e. the landscape management zones of land for conservational use, forestry use, and aquaculture use (Items 6, 7, and 8), as well as the landscape management zones of landfor other uses (Item 9), inter alia,the landscape management zones of land for residential and public uses (“the built-up areas of the settlements of the Curonian Spit (old fishing villages) in which historically formed cultural landscape, features of its valuable urban and architectural elements, and traditional architectural forms and scale are sought to be preserved”; Item 9.1), by distinguishingthe preserving landscape management zone (Item 9.2.1) and establishing the management work that is allowed in this zone (inter alia, repair, elimination of the threat ofan emergency, conservation, restoration, adaptation, and recreation; Item 9.2.1.3) and a prohibition on changing the structure of homesteads (the layout of buildings), onconstructing buildings not characteristic of the area or small landscapearchitectural structures (glazed gazebos, woodsheds, etc.), and onreducing green areas (Item 9.2.1.4).

Item 9.2.1.5, which (provision thereof) is impugned by the petitioner, of the Management Plan ofthe Curonian Spit National Park provides that “the territory at L. Rėzos St. 26 and 26A (Juodkrantė) is built up with a fisherman’s traditional homestead: one residential house and one appurtenance.The buildings at L. Rėzos St. 26A have the traditional appearance of a fisherman’s homestead.The buildings cannot be semidetached, elements uncharacteristic of fishermen’s homesteads may not be used, and there must be no connecting structure between the residential building and the appurtenance.The entrance from Ievos Kalno Street is not planned.Special requirements are established in the special cultural heritage protection plan for the protected area, i.e. the cultural natural reserve;”.

Thus, Item 9.2.1.5 of the Management Plan of the Curonian Spit National Park defines the preserving landscape management—a traditional building up—of the territoryat L. Rėzos St. 26 and 26A (Juodkrantė), i.e. a certain residential house and its appurtenance which constitute a fisherman’s homestead,areprovided for.

2. Under Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court,a ruling of a court, by means of which an application is made to the Constitutional Court, must specify the legal arguments presenting the court’s opinion on the conflict of alegal act with the Constitution.

The Constitutional Court has held on more than one occasion that the requirement stems from Item 5 of Paragraph 2 of Article 67 of the Law on the Constitutional Court that courts, when presenting their arguments concerning their opinion on the conflict of a law or another legal act (part thereof) with the Constitution which is expressed in their petition, may not limit themselves only to general reasoning or statementsand also to the fact that the law or another legal act (part thereof), in their opinion, is in conflict with the Constitution, but must clearly indicate which impugned articles (paragraphs, items thereof) of legal acts and to what extent, in their opinion, are in conflict with the Constitution and substantiate their position on the compliance of every impugned provision of the legal act (part thereof) by clearly formulated legal arguments (the Constitutional Court’s ruling of,inter alia,12 December 2005, its decisions of 14 October 2008 and 10 November 2011).

3. It should be noted that the petitioner did not present any legal arguments which would substantiate its position on the conflict of the provision “the territory at L. Rėzos St. <...> 26A (Juodkrantė) is <...> built up <...>: one residential house and one appurtenance”of Item 9.2.1.5 of the Management Plan of the Curonian Spit National Park with Paragraph 2 of Article 23 of the Constitution and the constitutional principle of the separation of powers.

3.1. The petitioner’s position on the conflict of the impugned provision with the Constitution, inter alia, Paragraph 2 of Article 23 thereof, and the constitutional principle of the separation of powers is substantiated mainly by the statement that, in the said provision, the Government has entrenched the measure—the demolition of a certain building—for the elimination of the consequences of the construction carried out pursuant to an unlawfully issued document authorising the construction.

The petitioner maintains that “although the norm of <...> Item 9.2.1.5 does not in itself name the measure—the demolition of a building—for the elimination of the aforesaid consequences, however, <...> the formulation of the legal norm substantially means that, upon the application of the said norm, one of the three buildings in this territory should be demolished, therefore, this norm should be treated as consolidating the duty to demolish one building at L. Rėzos St. 26A” and has doubts as to whether “the norms of <...> Item 9.2.1.5 of the Management Plan of the Curonian Spit National Park which establish specific limitations upon the right of ownership of defendants have a legal basis”, as well as maintains that, by consolidating the impugned legal regulation, “the Government acted ultra vires since it established a specific measure for the elimination of the consequences of construction in the absence of the commissioning of the legislature to do so”, “thereby the constitutional principle of the separation of powers was violated”.

As mentioned before, Item 9.2.1.5 of the Management Plan of the Curonian Spit National Park defines the preserving landscape management—a traditional building up—of the territoryat L. Rėzos St. 26 and 26A (Juodkrantė), i.e. a certain residential house and its appurtenance which constitute a fisherman’s homestead, areprovided for.

It has also been mentioned that government resolution No. 702 of 6 June 2012, by means of which the Management Plan of the Curonian Spit National Park was approved, had been adopted by invoking Article 18 of the Law on Territorial Planning (wording of 15 January 2004 with subsequent amendments and supplements) and by invoking Paragraph 6 of Article 28 of the Law on Protected Areas (wording of 4 December 2001).

It should be noted that the said statements of the petitioner which, among other things, are related to the application of the impugned provision provide no legal substantiation as to why the solution, which is established in the territorial planning document, for building up a certain territory should be treated as a measure for the elimination of the consequences of the construction carried out pursuant to an unlawfully issued document authorising the construction and why specifically by means of this solution (rather than decisions adopted by competent institutions while invoking not only territorial planning documents but also other legal acts, inter alia, laws) the demolition of a certain structure is required. Neither does the petitioner present any legal arguments as to why the Government, which approved the territorial planning document (inter alia,by amending the document previously in force) in accordance with laws,does not have any powers to provide for a relevant solution for building up the territory, why, under the Constitution, solutions for the management of specific territories(inter alia, which are identified according to an address) must be consolidated in a law and may not be established in legal acts adopted by the Government, let alone in special territorial planning (inter alia, intended to provide for measures for the protection of protected areas) documents approved by the Government within its competence.

3.2. It has been mentioned thatthe Government Resolution (No. 702) “On the Approval of the Management Plan of the Curonian Spit National Park” of 6 June 2012 recognised thatthe Government Resolution (No. 1269) “On the Planning Scheme (the General Plan) of the Curonian Spit National Park” of 19 December 1994 (with subsequent amendments and supplements), by means of which the Planning Scheme (the General Plan) of the Curonian Spit National Park had been approved, was no longer valid.

It should be noted that thematter of regulation of the Management Plan of the Curonian Spit National Park and the Planning Scheme (the General Plan) of the Curonian Spit National Park, which was previously in force, is analogous:these territorial planning documents contain solutions for the use, management, protection, etc. of the territory of the Curonian Spit National Park.

When substantiating its position, inter alia, on the violation of the constitutional guarantee of the inviolability of property, the petitioner fails to refer to the Constitutional Court’s ruling of 27 June 2007, which investigated the compliance of said government resolution No. 1269 of 19 December 1994 with the Constitution, and fails to assess the legal regulation (that raised doubts to the petitioner) in the context of the provisions, which are formulated in the said ruling, as regards the importance and uniqueness of the Curonian Spit, as, for instance:

– the particular importance of the Curonian Spit is reflected by the natural and cultural heritage which is inwrought in a picturesque manner and which is not only related to the material or spiritual aspect, but also to the experience which was gained by every generation of the local people, and this helps to rebuild the lost natural systems of the Curonian Spit;

– disregard for the solutions [of the Scheme], particularly knowing that the State of Lithuania has always treated and treats the Curonian Spit as a unique landscape complex created by nature and man—the territory which should be protected and to which particular legal treatment must be established—which is a universally known fact, would not be in compliance with the general legal principle bona fides;

– otherwise, not only the identity and integrity of the Curonian Spit as a unique landscape complex created by nature and man—the territory 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 takes care of the protection of the natural environment, wildlife and plants, individual objects of nature and areas of particular value and supervises a sustainable use of natural resources, their restoration and increase, and the provision of Paragraph 3 of Article 53 of the Constitution that the state and each person must protect the environment from harmful influences;the international obligations of the Republic of Lithuania would also be clearly violated.

4. It should be noted that neither did the petitioner present any legal arguments which would substantiate its position on the conflict of the provision “the territory at L. Rėzos St. <...> 26A (Juodkrantė) is<...> built up<...>: one residential house and one appurtenance” of Item 9.2.1.5 of the Management Plan of the Curonian Spit National Park with Paragraph 1 of Article 109 of the Constitution and the constitutional principles of justice and a state under the rule of law.

4.1. The petitioner has doubts as to whether the impugned item “which imperatively indicates the only possible measure for the elimination of the consequences of the construction carried out pursuant to the documents authorising the construction that have been declared unlawful does not limit the constitutional powers of a court to administer justice and does not violate the principle of a state under the rule of law” and also whether the said item does not violate Paragraph 1 of Article 109 of the Constitution and the constitutional principle of a state under the rule of law “to the extent that the only measure—the demolition of a building—for the elimination of the consequences of the construction carried out pursuant to unlawfully issued documents authorising the construction is chosen”.

As mentioned before, the petitioner’s statements set forth in the petition provide no legal substantiation as to why the solution, which is established in the territorial planning document, for building up a certain territory should be treated as a measure for the elimination of the consequences of the construction carried out pursuant to an unlawfully issued document authorising the construction and why specifically by means of this solution (rather than decisions adopted by competent institutions while invoking not only territorial planning documents but also other legal acts, inter alia, laws) the demolition of a certain structure is required.

The petitioner also maintains that the provisions of the impugned item “which are formulated as an act of justice, imperatively, by stating the facts, are binding and require that a decision binding upon the parties to the proceedings is adopted, therefore, such provisions, as regards their content, are imperative and this raises doubts as to the compliance of such regulation with Paragraph 1 of Article 109 of the Constitution”, however, the petitioner does not present any legal arguments as to why, under the Constitution, territorial planning, let alone special territorial planning (inter alia, intended to provide for measures for the protection of protected areas), documents may not contain any imperative provisions.In this context, it should also be noted that the imperative character of a legal norm may not,as such, be treated as a restriction upon the possibility of a court, which has to apply the said norm, of administering justice.

4.2. The petitioner also invokes the following doctrinal provisions formulated in the Constitutional Court’s ruling of 31 January 2011:“The duty stems from the Constitution, inter alia, Paragraph 1 of Article 109 thereof, as well as from the constitutional principles of justice and a state under the rule of law, for the legislature, when it regulates the relations linked to the elimination of the consequences of the construction that violates the requirements of legal acts, to establish the criteria under which and/or the situations where a court which decides on the legal consequences of the construction that violates the requirements of legal acts, after having assessed all the circumstances of the case and while following the principles of justice, reasonableness and proportionality, would have a possibility to choose a proper impact measure for the elimination of the consequences of the construction that violates the requirements of legal acts.”

It should be noted that, in the aforesaid ruling, the Constitutional Court investigated the compliance of the provisions of the Civil Code and the Law on Construction which regulate the powers of a court in deciding on the legal consequences of the construction that violates the requirements of legal acts with the Constitution.The petitioner does not impugn the provisions of legal acts which regulate the powers of courts and does not explain why, under the Constitution, the possibilities of a court to choose a proper impact measure for the elimination of the consequences of the construction that violates the requirements of legal acts should be ensured by the solutions of territorial planning documents, inter alia, set out in the impugned provision.