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Content updated: 21-01-2020 11:05

The Constitutional Court: the court decisions on removing the consequences of illegal construction in the Curonian Spit must be executed

25-11-2019

By its ruling adopted today, the Constitutional Court has recognised that Items 9.2.1.7 and 9.2.3.2 of the Management Plan of the Curonian Spit National Park as approved by the government resolution of 6 June 2012 were not in conflict with the Constitution and laws. However, Items 9.2.1.7 and 9.2.3.2 of the Management Plan of the Curonian Spit National Park as set out in a new wording by the government resolution of 30 October 2019 have been found to be in conflict with Paragraph 1 of Article 109 of the Constitution (in the Republic of Lithuania, justice is administered only by courts), as well as with the constitutional principle of a state under the rule of law and the constitutional principle of justice.

The Constitutional Court drew attention to the fact that, after the hearing of the Constitutional Court had already been held in the case concerning the compliance of the regulation impugned by a group of members of the Seimas, the petitioner, with the Constitution and laws, the Government adopted the resolution of 30 October 2019, whereby the legal regulation impugned by the petitioner was substantially amended, including to the extent that it no longer contained the provision “the consequences of the construction carried out on the basis of the illegally issued documents permitting construction, where such consequences undermine the valuable features of the area and have a negative impact on its volumetric and spatial composition, must be removed”, due to which the petitioner claimed that the government had taken over the powers of a court to state the fact of illegal construction and to regulate the removal of the consequences of illegal construction; in addition, the government resolution of 30 October 2019 provided for different results of solving (solutions to) the planning tasks with respect to the territories (Lotmiškio g. 1, Nida, and Naglių g. 20, Nida, respectively) referred to in the above-mentioned items and these results (solutions) no longer required removing or reconstructing some of the buildings located on the indicated plots. In other words, by means of the said resolution, the Government provided for a lower level of protection for the Curonian Spit as a territory of particular value, compared to the level of protection established in the effective court decisions, insofar as the objects referred to in the impugned Items 9.2.1.7 and 9.2.3.2 of the Management Plan of the Curonian Spit National Park were concerned.

Under Paragraph 4 of Article 69 of the Law on the Constitutional Court, the annulment of an impugned legal act or the amendment of the legal regulation established by an impugned legal act constitutes a ground for adopting a decision to dismiss the instituted legal proceedings or case. The Constitutional Court has clarified that this provision means that the Constitutional Court has the right to dismiss the instituted legal proceedings or case where not courts, but other subjects specified in Article 106 of the Constitution (the Seimas, a group of members of the Seimas, the Government, or the President of the Republic), have applied to the Constitutional Court and an impugned legal act (part thereof) is no longer in force – it has been declared as no longer valid (has been annulled or amended) or its validity has expired.

Having regard to the fact that the institution of individual constitutional complaints was consolidated in the Constitution as of 1 September 2019, the Constitutional Court noted that the above-mentioned provision on the right of the Constitutional Court to dismiss the instituted proceedings where an impugned legal act is no longer in force does not apply to petitions filed by individual persons. This means that, where a person referred to in Paragraph 4 of Article 106 of the Constitution applies to the Constitutional Court, provided that this person has exhausted all legal remedies and satisfies other conditions established in the Law on the Constitutional Court, the Constitutional Court will be obliged to examine the petition of this person, irrespective of whether the impugned law or another legal act is or is not in force at the time of considering the constitutional justice case. The Constitutional Court emphasised that the consolidation of the institution of individual constitutional complaints in the Constitution is not an objective in itself. It is aimed at enabling the effective protection of those constitutional rights or freedoms of a person that could be violated by a decision adopted on the basis of legal acts (parts thereof) contrary to the Constitution, as well as at creating the preconditions for the review of such a decision in order to remove the violation of the constitutional rights or freedoms of the person. If the Constitutional Court were to dismiss the instituted proceedings (case) where it has been addressed by an individual person and the impugned legal act has ceased to be in force or has been annulled or amended in the course of considering the case, this would be incompatible with the purpose of the institution of individual constitutional complaints, as this would prevent the person from defending his/her constitutional rights or freedoms, while other values protected by the Constitution could also be violated.

The Constitutional Court also noted from the aspect relevant to this constitutional justice case that, in the exercise of its constitutional powers, the Constitutional Court may not dismiss the instituted proceedings also where it has been addressed by subjects other than courts or individual persons and the impugned legal regulation is no longer in force and the Constitutional Court finds that, if the constitutional justice case under consideration is not solved on its merits, this could lead to the preconditions for violating the values consolidated, defended, and protected by the Constitution, including a public interest protected by the Constitution.

Taking into account the circumstances of the case under consideration, among others, the fact that the impugned legal regulation, laid down in the Management Plan of the Curonian Spit National Park (wording of 6 June 2012), is related to ensuring a public interest – the special protection of the Curonian Spit and that failure to protect this interest could lead to the violation of the values consolidated, defended, and protected by the Constitution, the Constitutional Court decided, in this constitutional justice case, to investigate the compliance of Items 9.2.1.7 and 9.2.3.2 of the Management Plan of the Curonian Spit National Park (wording of 6 June 2012) with the Constitution and laws subsequent to the petition of the group of members of the Seimas, the petitioner, i.e. it decided not to dismiss the instituted case.

The Constitutional Court noted that, in view of the enduring value of the Curonian Spit for the present and future generations, as it is a unique natural and human-made landscape complex, which is part of the national and world natural, historical, and cultural heritage, in accordance with Paragraph 2 of Article 42 of the Constitution (the state takes care of the protection of Lithuanian historical, artistic, and other cultural monuments, as well as other valuable objects) and Paragraph 1 of Article 54 of the Constitution (the state takes care of the protection of the natural environment, wildlife and plants, individual objects of nature, and areas of particular value), the Curonian Spit is a particularly valuable area to be protected and a natural and cultural heritage site of global significance; therefore, the state has the duty to ensure the special protection of the Curonian Spit as a public interest protected by the Constitution. The fulfilment of this constitutional duty requires that legal acts provide for a special regime for the protection and use of the Curonian Spit, which means that, among other things, economic activities, construction, and any other activities that can change the landscape or individual objects in this area may be limited. In the exercise of its constitutional powers, the Government must establish the measures of implementing this special regime for the protection and use of the Curonian Spit and these measures are to be applied to the state, municipalities, and other owners and users of the respective objects located in the Curonian Spit. The implementation of this special regime for the protection and use of the Curonian Spit, including the requirement to restore what has been changed, destroyed, or otherwise infringed, should be regarded as a constitutionally justifiable objective, due to which the property rights of the owners and users of objects located in the Curonian Spit may be subject to limitations. The measures of implementing the special regime for the protection and use of the Curonian Spit cannot in themselves be regarded as a violation of property rights, protected under Article 23 of the Constitution.

Taking into account the requirement to respect the general legal principle ex injuria jus non oritur (illegal acts cannot create law), which stems from the constitutional principle of a state under the rule of law and according to which no one can take advantage of his/her own illegal act, as well as taking into account the constitutional principle of justice, the Constitutional Court noted that the constitutionally consolidated duty of the state to preserve the identity and integrity of the Curonian Spit and to ensure its special protection as a public interest protected by the Constitution means that the consequences of non-compliance with the special regime, established under Paragraph 2 of Article 42 and Paragraph 1 of Article 54 of the Constitution, for the protection and use of the Curonian Spit, as well as the consequences of non-compliance with the limitations and prohibitions implied by this regime, may not be legalised by any decisions or agreements of state or municipal institutions or officials. Such decisions or agreements may not create the preconditions for disrespecting the imperative, which stems from the Constitution, among others, Article 109 thereof, as well as from the constitutional principle of a state under the rule of law and the constitutional principle of justice, to execute effective court decisions, which are binding on all institutions of state power and governance and all other legal and natural persons and which may impose the obligation, among others, on the owners and users of the respective objects located in the Curonian Spit to restore what has been changed, destroyed, or otherwise infringed in violation of the special regime for the protection and use of the Curonian Spit.

Assessing the impugned legal regulation, the Constitutional Court held that, with the aim of the effective fulfilment of the duty of the state, stemming from the Constitution, among others, Paragraph 2 of Article 42 and Paragraph 1 of Article 54 thereof, to ensure the special protection of the Curonian Spit as a public interest protected by the Constitution, by means of this legal regulation, the measures had been established for implementing the special regime for the protection and use of the Curonian Spit. Therefore, the impugned legal regulation laid down by the Government, whereby, in order to achieve the constitutionally justifiable objective of restoring what had been changed, destroyed, or otherwise infringed in violation of the special regime for the protection and use of the Curonian Spit, the measures of implementing the said regime had been established, cannot in itself be assessed as a violation of property rights, protected under Article 23 of the Constitution. On the basis of similar arguments, the Constitutional Court held that the impugned legal regulation had not been in conflict with Article 4.93 of the Civil Code, which lays down the guarantees for the protection of the rights of owners.

The Constitutional Court held that the wording “the consequences of the construction carried out on the basis of the illegally issued documents permitting construction, where such consequences undermine the valuable features of the area and have a negative impact on its volumetric and spatial composition, must be removed”, as used in the impugned Items 9.2.1.7 and 9.2.3.2 of the Management Plan of the Curonian Spit National Park, should be regarded not as expressing the decision of the Government that the construction on the plots referred to in the impugned items had been carried out on the basis of the illegally issued documents permitting construction, but rather as meaning that, when adopting the impugned legal regulation, the Government had relied on the fact ascertained in the court decisions delivered before the adoption of the resolution of 6 June 2012. The legal regulation laid down by the Government regarding the Curonian Spit National Park had been aimed at regulating the way in which the specific territories were to be managed, so that the objects located in these territories would meet the requirements set for the respective territory and the consequences of the construction carried out on the basis of the illegally issued documents permitting construction would not undermine the valuable features of the area and have no negative impact on its volumetric and spatial composition.

In view of this, the Constitutional Court drew the conclusion that there was no ground for holding that, by establishing the impugned legal regulation, laid down in Items 9.2.1.7 and 9.2.3.2 of the Management Plan of the Curonian Spit National Park, the Government had taken over the powers of a court to state that the construction had been carried out on the basis of the illegally issued documents permitting construction or the powers of a court to decide on removing the consequences of the construction carried out on the basis of the illegally issued documents and that, thus, the Government had violated the requirements stemming from Paragraph 1 of Article 109 of the Constitution and from the constitutional principle of the separation of powers.

The Constitutional Court also held that the imperative legal regulation, laid down in Items 9.2.1.7 and 9.2.3.2 of the Management Plan of the Curonian Spit National Park (wording of 6 June 2012), concerning the management of the objects referred to in the said items, insofar as this management had been related to removing the consequences of the construction carried out on the basis of the illegally issued documents permitting construction, had not been in conflict with Paragraph 2 of Article 33 of the Law on Construction, which provides for the powers of a court to decide on removing the consequences of illegal construction. According to the Constitution, the imperative nature of a legal norm cannot in itself be treated as a restriction on the possibility of administering justice by a court that must apply this norm; as previously held by the Constitutional Court, the legal regulation requiring a court to adopt a decision obliging the builder to demolish a building under construction or to reconstruct it appropriately, in those cases where the carried out construction work on the site is not permitted at all, is proportionate (adequate) to the violation committed, is in line with the legitimate and generally important objectives pursued, and should be considered constitutionally justifiable.

Assessing the constitutionality of Items 9.2.1.7 and 9.2.3.2 of the Management Plan of the Curonian Spit National Park as amended by the government resolution of 30 October 2019, the Constitutional Court noted that, seeking to coordinate the interests of the state and those of private persons concerning the use of territories and the development of activities in the Curonian Spit National Park, as well as seeking to create the preconditions for ending the legal disputes through peace agreements and reducing the state budget expenditure, the Government provided, in Items 9.2.1.7 and 9.2.3.2 of the Management Plan of the Curonian Spit National Park (wording of 30 October 2019), for different results of solving (solutions to) the planning tasks with respect to the territories concerned, compared to the previously valid legal regulation, i.e. the Government no longer provided that the particular buildings located on the indicated plots must be removed or restructured, so that the consequences of the construction carried out on the basis of the illegally issued documents permitting construction would not undermine the valuable features of the area and have no negative impact on its volumetric and spatial composition. Consequently, the Government failed to comply with the requirement to respect the general legal principle ex injuria jus non oritur (illegal acts cannot create law), which stems from the constitutional principle of a state under the rule of law; in addition, the Government created the preconditions for legalising the consequences resulting from the violations of the previously valid Planning Scheme of the Curonian Spit National Park and the previously valid Management Plan of the Curonian Spit National Park (wording of 6 June 2012), as well as the preconditions for not executing the effective court decisions, which imposed the obligation on the owners of the buildings located on the plots referred to in Items 9.2.1.7 and 9.2.3.2 of the Management Plan of the Curonian Spit National Park (wording of 30 October 2019), among other things, to dismantle, rebuild, or restore what had been changed, destroyed, or otherwise infringed in violation of the special regime for the protection and use of the Curonian Spit. The Constitutional Court noted that the non-execution of the effective court decisions cannot be constitutionally justified, among other things, by the aim, referred to in the documents of preparing the government resolution of 30 October 2019 and submitting the draft of this resolution, to end the legal disputes through peace agreements and reduce the state budget expenditure.

In view of this, the Constitutional Court drew the conclusion that Items 9.2.1.7 and 9.2.3.2 of the Management Plan of the Curonian Spit National Park as set out in its new wording were in conflict with Paragraph 1 of Article 109 of the Constitution, as well as with the constitutional principle of a state under the rule of law and the constitutional principle of justice.

Under Paragraph 1 of Article 107 of the Constitution, a legal act (or part thereof) may not be applied from the day of the official publication of the decision of the Constitutional Court that the legal act in question (or part thereof) is in conflict with the Constitution. As, after the entry into force of this ruling of the Constitutional Court, the management of the above-mentioned territories in the Curonian Spit National Park, to the extent that this management had been envisaged under the specific solutions established by the Government for these territories, will remain unregulated, certain legal uncertainty may arise regarding the management of the territories in question and economic activities, including construction, in these territories. This could give rise to the preconditions for denying the imperative of the special protection of the Curonian Spit, stemming from the Constitution, and failure to ensure a public interest protected by the Constitution. As held by the Constitutional Court, it is also possible to fill legal gaps to a certain extent in the course of applying law and, thus, also in the course of interpreting law, among others, by courts, which administer justice and decide individual cases within their competence and are obliged to interpret law in order they could apply it. Therefore, until the Government provides for a constitutionally compliant legal regulation governing the management of the respective territories and the buildings located there, the plots at Lotmiškio g. 1, Nida, and Naglių g. 20, Nida, and the buildings located there should be managed (among other things, dismantled, restructured, and/or restored) in such a manner as established by the effective court decisions.

The separate opinion by Justice Danutė Jočienė was submitted in this case.

The full text of this ruling of the Constitutional Court can be found on the website of the Constitutional Court at https://www.lrkt.lt/lt/teismo-aktai/paieska/135/ta1998/content.