Case No. 1/02
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON
THE
COMPLIANCE
OF
THE
RESOLUTION
OF
THE
GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 458) “ON
THE APPROVAL OF THE METHODS FOR CALCULATING DAMAGE
INFLICTED ON NATURE AS A RESULT OF VIOLATION OF
ENVIRONMENTAL PROTECTION LAWS” OF 8 NOVEMBER 1991
WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA
29 October 2003
Vilnius
The Constitutional Court of the Republic of Lithuania, composed of the Justices of the
Constitutional Court: Armanas Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas Prapiestis, Vytautas Sinkevičius,
and Stasys Stačiokas
The court reporter—Daiva Pitrėnaitė
Živilė Liekytė, Director of the Legislation and Public Law Department of the Ministry of
Justice of the Republic of Lithuania, acting as the representative of the Government of the Republic
of Lithuania, the party concerned
The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of
the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court
of the Republic of Lithuania, on 1 October 2003, in its public hearing, considered case No. 1/02
subsequent to the petition of the Vilnius Regional Court, the petitioner, requesting an investigation
into whether the Resolution of the Government of the Republic of Lithuania (No. 458) “On the
Approval of the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws” of 8 November 1991 was not in conflict with Paragraph 2 of
Article 7, Paragraph 2 of Article 95 of the Constitution of the Republic of Lithuania and Paragraph
1 of Article 8 of the Republic of Lithuania’s Law “On the Procedure of the Publication and Entry
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Into Force of Laws and Other Legal Acts of the Republic of Lithuania”.
The Constitutional Court
has established:
I
The Vilnius Regional Court, the petitioner, suspended the consideration of a civil case by its
ruling and applied to the Constitutional Court with the petition requesting an investigation into
whether the Resolution of the Government of the Republic of Lithuania (No. 458) “On the
Approval of the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws” of 8 November 1991 was not in conflict with Paragraph 2 of
Article 7, Paragraph 2 of Article 95 of the Constitution of the Republic of Lithuania and Paragraph
1 of Article 8 of the Republic of Lithuania’s Law “On the Procedure of the Publication and Entry
Into Force of Laws and Other Legal Acts of the Republic of Lithuania”
II
The petition of the petitioner is based on the following arguments.
The Government Resolution (No. 458) “On the Approval of the Methods for Calculating
Damage Inflicted on Nature as a Result of Violation of Environmental Protection Laws”
(hereinafter also referred to as the Resolution) was published in the official gazette Lietuvos
Respublikos Aukščiausiosios Tarybos ir Vyriausybės žinios (1991, No. 33-928), but the Methods for
Calculating Damage Inflicted on Nature as a Result of Violation of Environmental Protection Laws
(hereinafter also referred to as the Methods) as approved by Item 1 of the Resolution was published
neither together with the Resolution, nor later. In the opinion of the petitioner, the Methods are an
inseparable constituent part of the Resolution.
The petitioner points out that at the time when the Resolution was adopted the procedure of
the publication and entry into force of legal acts was regulated by the Provisional Basic Law of the
Republic of Lithuania, the Law on the Government of the Republic of Lithuania and some other
legal acts which had been in force before the restoration of the independent State of Lithuania. The
Resolution was published in the official gazette Lietuvos Respublikos Aukščiausiosios Tarybos ir
Vyriausybės žinios, but the Methods as approved by this Resolution were not published. In the
opinion of the petitioner, this was in conflict with the then procedure of publication of legal acts.
The petitioner also points out that on 6 April 1993 the Republic of Lithuania’s Law “On the
Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of
Lithuania” (hereinafter also referred to as the Law) was adopted. Under Paragraph 1 of Article 8 of
this law, the resolutions by the Government which establish legal norms shall come into force
following the day, when signed by the Prime Minister and the appropriate minister, they shall be
3
published in the official gazette Valstybės žinios, provided a later date of their entry into force has
not been established by the resolution itself. The impugned resolution was signed only by the Prime
Minister of the Republic of Lithuania, but not signed by the appropriate minister.
The petitioner has doubts as to whether the Resolution is not in conflict with Paragraph 2 of
Article 7, Paragraph 2 of Article 95 of the Constitution, and Paragraph 1 of Article 8 of the Law.
III
In the course of the preparation of the case for the Constitutional Court hearing written
explanations were received from the representative of the party concerned, the Government, who
was Ž. Liekytė, Director of the Legislation and Public Law Department of the Ministry of Justice.
The representative of the party concerned points out that, according to the procedure of the
signing, publication and entry into force of resolutions by the Government, which was valid at the
time the impugned resolution was adopted, government resolutions had to be signed by the Prime
Minister. Government resolutions had to be published in the official gazette Lietuvos Respublikos
Aukščiausiosios Tarybos ir Vyriausybės žinios.
The impugned Government Resolution (No. 458) “On the Approval of the Methods for
Calculating Damage Inflicted on Nature as a Result of Violation of Environmental Protection
Laws” of 8 November 1991 was signed by the Prime Minister and published in the official gazette
Lietuvos Respublikos Aukščiausiosios Tarybos ir Vyriausybės žinios in No. 33, 1991. The Methods,
as approved by Item 1 of the Resolution, were not published. In the opinion of Ž. Liekytė, legal
acts, which regulated the procedure of publication of laws and other legal acts at the time of the
adoption of the impugned government resolution, did not establish the obligation to publish
attachments of government resolutions, which somewhat did not constitute a part of a government
resolution, in the official gazette Lietuvos Respublikos Aukščiausiosios Tarybos ir Vyriausybės
žinios.
The representative of the party concerned maintains that the impugned government
resolution was adopted before the adoption and entry into force of the Constitution and the Republic
of Lithuania’s Law on the Procedure of the Publication and Entry Into Force of the Laws and Other
Legal Acts. Article 2 of the Law “On the Procedure for Entry Into Force of the Constitution of the
Republic of Lithuania”, which was adopted together with the Constitution, establishes that “laws,
other legal acts or parts thereof which were in effect on the territory of the Republic of Lithuania
prior to the adoption of the Constitution of the Republic of Lithuania, shall be effective inasmuch as
they are not in conflict with the Constitution and this Law, and shall remain in effect until they are
either declared null and void or harmonised with the provisions of the Constitution”. In the opinion
of Ž. Liekytė, though laws, other legal acts or parts thereof which were in effect in the territory of
the Republic of Lithuania prior to the adoption of the Constitution should be effective inasmuch as
4
they are not in conflict with the Constitution and the said law, this norm may not be construed as
establishing that the said legal acts are ineffective if they are in conflict with the Constitution
according to the procedure of their adoption, signing, publication and entry into effect. Therefore,
the procedure as established in Paragraph 2 of Article 7, Paragraph 2 of Article of the Constitution
and Paragraph 1 of Article 8 of the Law should not be applied to the Resolution which was adopted
before the entry into force of the Constitution and the Law.
The representative of the party concerned indicates that the Constitution shall be an integral
act (Paragraph 1 of Article 6 of the Constitution). The provisions of Paragraph 2 of Article 7 and
Paragraph 2 of Article 95 of the Constitution are closely related with the principle of a state under
the rule of law which is consolidated in the Constitution. In the opinion of Ž. Liekytė, the petition of
the petitioner has to be considered also with regard to the fact that the striving for a state under the
rule of law emerged as an imperative from the very restoration of independence of the Republic of
Lithuania on 11 March 1990, but not from the moment of the adoption of the Constitution. Thus,
the procedure of the signing of legal acts as well as that of the publication and entry into effect of
the Resolution, must conform to this objective. A significant element of the constitutional principle,
which guarantees this objective, that only published legal acts are effective also means that law may
not be non-public. While assessing the compliance of the Resolution with this principle, the
representative of the party concerned notes that in Item 2 of the Resolution the Government
proposed the Environmental Protection Department of the Republic of Lithuania to provide all
ministries, services and organisations concerned with these Methods. In the opinion of Ž. Liekytė,
by such norm the provision of Article 97 of the Provisional Basic Law that the Government
organises the execution of resolutions which it has adopted used to be implemented. While
implementing Item 2 of the Resolution, in 1992 the Environmental Protection Department
published “Methods for Calculating the Damage Which is Inflicted on Nature as a Result of
Violation of Environmental Protection Laws” as a separate publication in 3000 copies. In addition,
in 1991 the Methods were published in the Environmental Protection Department and Lithuanian
Information Centre bulletin “Environmental Protection in the Republic of Lithuania” (1991, No. 2)
which was published in 5000 copies. Therefore, in the opinion of the representative of the party
concerned, one can assert that this publishing of the Methods in the overall edition of 8000 copies
may be equalled to its publication and can be considered to be appropriate means for the
implementation of the principle of publicity of legal acts.
IV
In the course of the preparation of the case for the judicial consideration, written
explanations were received from A. Kundrotas, Minister of the Environment of the Republic of
Lithuania, and K. Virketis, Director of the Legal Department of the Office of the Seimas.
5
V
At the Constitutional Court hearing the representative of the party concerned, the
Government, who was Ž. Liekytė, virtually reiterated the arguments set forth in her written
explanations.
The Constitutional Court
holds that:
I
1. The petitioner requests an investigation into whether the Resolution of the Government of
the Republic of Lithuania (No. 458) “On the Approval of the Methods for Calculating Damage
Inflicted on Nature as a Result of Violation of Environmental Protection Laws” of 8 November
1991 is not in conflict with;
1) Paragraph 2 of Article 7 of the Constitution;
2) Paragraph 2 of Article 95 of the Constitution;
3) Paragraph 1 (wording of 18 May 1999) of Article 8 of the Law “On the Procedure of the
Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”.
2. It is clear from the petition of the petitioner that he has doubts as to whether the manner of
the signing and publishing of the impugned government resolution is not in conflict with Paragraph
2 of Article 7, Paragraph 2 of Article 95 of the Constitution, and Paragraph 1 of Article 8 of the
Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of
the Republic of Lithuania”.
II
1. While deciding whether the Resolution of the Government of the Republic of Lithuania
(No. 458) “On the Approval of the Methods for Calculating Damage Inflicted on Nature as a Result
of Violation of Environmental Protection Laws” of 8 November 1991 is not in conflict with the
Constitution and Paragraph 1 (wording of 18 May 1999) of Article 8 of the Law “On the Procedure
of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of
Lithuania”, one has to ascertain what institutions of the State of Lithuania and what legal acts
regulate (used to regulate) calculation of damage (loss) inflicted on nature and how this legal
regulation has changed.
2. On 5 April 1990, the Supreme Council adopted the Republic of Lithuania’s Law “On the
Establishment of State Bodies Accountable to the Supreme Council of the Republic of Lithuania”,
by Item 1 of which it was decided to liquidate the Republic of Lithuania State Committee for the
Environmental Protection and to establish the Republic of Lithuania Environmental Protection
Department accountable to the Supreme Council.
6
On 13 July 1990, the Supreme Council adopted the Law on the Republic of Lithuania
Department for the Environmental Protection. According to Article 1 of this law, the Environmental
Protection Department used to be a state body for the regulation of natural resources and control
over the environment protection, accountable before the Supreme Council. Item 6 of Article 9 of the
Law on the Environmental Protection Department used to provide that the competence of the
Environmental Protection Department includes presentation of claims and actions concerning
compensation of damage for pollution of the environment and unreasonable use of natural
resources, preparation and approval of methods and rates for calculation of damage. Under Item 5
of Article 13 of the Law on the Environment Protection Department, the Director General of the
Environmental Protection Department used to have the right to issue orders, approve instructions,
rules, methods, adopt other decisions within his competence.
3. On 24 September 1991, the Supreme Council adopted the Resolution “On Economic
Sanctions for Emergency Leakage of Pollution Into Environment, Water Dispersed Pollution, Oneoff Exhaust of Pollution Into the Atmosphere that Exceed Established Norms, as well as the
Disposal of Pollution in the Place that is not Designated for the Purpose or Without Permission”
whereby it was decided to commission the Government to approve the Methods for Calculating
Damage Inflicted on Nature as a Result of Violation of Environmental Protection Laws upon the
presentation of the Environmental Protection Department.
4. On 8 November 1991, the Government adopted the Resolution (No. 458) “On the
Approval of the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws” in which it was established:
“While implementing the 24 September 1991 resolution (No. I-1823) of the Supreme
Council of the Republic of Lithuania, the Government of the Republic of Lithuania decides:
1. To approve the Methods for Calculating Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws as prepared by the Republic of Lithuania
Environmental Protection Department.
2. To propose to the Republic of Lithuania Environmental Protection Department to provide
all ministries, institutions and organisation concerned with the Methods and to prepare and approve
the Procedure of Application of the Methods for Calculating Damage Inflicted on Nature as a
Result of Violation of Environmental Protection Laws until 30 December 1991.
3. To establish that:
3.1. the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws shall come into effect as of 15 November 1991;
3.2. the amount of the damage inflicted on nature may be recalculated and supplemented if
types of pollution, which are not prescribed in the Methods, are established, new contaminants
7
appear, or ecological situation of the Republic changes;
3.3. damage inflicted on nature shall be exacted from natural and legal persons of the
Republic and foreign countries that have violated the laws on environmental protection according to
the following procedure: natural persons and non-profit organisations shall compensate the damage
from their funds, while other enterprises, establishments and organisations––from the profit which
remains to them;
3.4. the exacted funds shall be paid to the State Nature Protection Fund.”
5. On 21 January 1992, the Supreme Council adopted the Republic of Lithuania’s Law on
the Environmental Protection. Item 3 of Paragraph 2 of Article 6 of this law established that the
Environmental Protection Department is a state institution for regulation of the utilisation of natural
resources and control over the environmental protection which is accountable before the Supreme
Council and which prepares draft laws on environmental protection and, according to its
competence, adopts normative acts on the issues of environmental protection and utilisation of
natural resources, co-ordinates normative acts of the Government which are related with
environmental protection and utilisation of natural resources. Paragraph 2 of Article 32 of the Law
on Environmental Protection used to establish that the Government of the Republic of Lithuania,
upon the agreement of the Environmental Protection Department, shall establish the methods and
rates to compensate for damages inflicted on the environment.
6. On 19 May 1994, the Seimas adopted the Law on the Government of the Republic of
Lithuania. Paragraph 1 of Article 27 of the same Law provided for a new ministry––Ministry of
Environmental Protection.
On 31 May 1994, the Seimas adopted the Law “On the Implementation of the Law on the
Government of the Republic of Lithuania”, by Article 1 whereof the Environmental Protection
Department was liquidated as of 15 June 1994, while under Article 2 the Ministry of Environmental
Protection was established at the same day. Article 4 of the said law established that the
Government of the Republic of Lithuania must approve the regulations of the Ministry of
Environmental Protection of the Republic of Lithuania until 1 September 1994. Until the
regulations are approved, but not later than 1 September 1994, the Ministry of Environmental
Protection of the Republic of Lithuania shall perform the functions which have been assigned to the
Environmental Protection Department according to the Law on Environmental Protection of the
Republic of Lithuania, and shall have the powers assigned to this department (with the exception of
the powers specified in Articles 5 and 6 and Items 4 and 11 of Article 9 of the Law on
Environmental Protection).
7. On 9 September 1994, the Government adopted the Resolution (No. 842) “On the
Approval of the Regulations of the Ministry of Environmental Protection of the Republic of
8
Lithuania” whereby the Regulations of the Republic of Lithuania Ministry of Environmental
Protection were approved. Item 7.4 of these regulation established that the Ministry of
Environmental Protection, while fulfilling the tasks which have been assigned to it, has the right to
prepare and approve the methods, instructions and rates for calculation of damage and
compensational means, as well as to control the payment of taxes for natural resources and
environmental pollution.
8. Article 6 of the Law on the Environmental Protection was amended by Article 4 of the
Republic of Lithuania’s Law on the Amendment and Supplement of the Law on the Environmental
Protection which was adopted by the Seimas on 28 May 1996. Item 11 of Paragraph 5 of Article 6
(wording of 28 May 1996) of the Law on the Environmental Protection provided that the Ministry
of Environmental Protection, while executing the management of environmental protection and
state regulation of natural resources, shall prepare and approve the methods for calculation of
damage caused to the environment.
Article 24 of the Law on Amendment and Supplement of the Law on the Environmental
Protection of 28 May 1996 recognised Paragraph 2 of Article 32 of the Law on the Environmental
Protection as no longer valid.
9. On 3 September 1997, the Government adopted the Resolution (No. 947) “On the
Approval of the Regulations of the Ministry of Environmental Protection of the Republic of
Lithuania” by Item 1 of which the Regulations of the Ministry of Environmental Protection of the
Republic of Lithuania were approved, while by Item 2 whereof the Government Resolution (No.
842) “On the Approval of the Regulations of the Ministry of Environmental Protection of the
Republic of Lithuania” of 9 September 1994 was recognised as no longer valid. In Item 6.3 of the
Regulations of the Ministry of Environmental Protection it used to be established, inter alia, that the
Ministry of Environmental Protection, while fulfilling the tasks assigned to it, has the right to
prepare and approve the methods of the calculation of damage and compensational means.
10. On 28 April 1998, the Seimas adopted the Law on the Amendment of the Law on the
Government of the Republic of Lithuania, by Item 1 of which the Law on the Government was set
forth in a new wording. According to the Law on the Government of a new wording, the Ministry of
Environmental Protection and the Ministry of Construction and Urban Planning ceased to exist and
a new Ministry of Environment was provided for.
11. On 22 September 1998, the Government adopted the Resolution (No. 1138) “On the
Approval of the Regulations of the Ministry of Environment of the Republic of Lithuania”, by Item
1 of which the Regulations of the Ministry of Environment of the Republic of Lithuania were
approved. Item 6.16 of these regulations established that the Ministry of Environment, while
fulfilling the tasks assigned to it, prepares and approves the methods of calculation of the damage
9
inflicted on the environment.
On 20 February 2002, the Government adopted the Resolution (No. 260) “On a Partial
Amendment of the Resolution of the Government of the Republic of Lithuania (No. 1138) ‘On the
Approval of the Regulations of the Ministry of Environment of the Republic of Lithuania of 22
September 1998’” which partially amended and set forth the Regulations of the Ministry of
Environment in a new wording. The legal regulation which had been established by Item 6.16 of the
Regulations of the Ministry of Environment (wording of 22 September 1998) was not amended and
provisions of the same content were set forth in Item 6.15 of the Regulations of the Ministry of
Environment of a new wording.
12. On 7 September 2000, the Government adopted the Resolution (No. 1065) “On the
Recognition of the Resolution of the Government of the Republic of Lithuania (No. 458) ‘On the
Approval of the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws’ of 8 November 1991 as Null and Void” (Official gazette Valstybės
žinios, 2000, No. 77-2338), which established the following:
“1. To commission the Ministry of Environment to prepare and, upon co-ordination with the
Ministry of Agriculture, Ministry of National Defence, Ministry of Social Security and Labour and
Ministry of Justice, approve the Methods for Calculation of the Amounts of Compensation of
Damage Inflicted on the Environment.
2. To recognise the Resolution of the Government of the Republic of Lithuania (No. 458)
‘On the Approval of the Methods for Calculating Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws’ of 2 November 1991 as null and void from the entry
into effect of the methods specified in Item 1.”
13. It has been mentioned that Item 11 of Paragraph 5 of Article 6 (wording of 28 May
1996) of the Law on Environmental Protection established that the Ministry of Environmental
Protection, while executing the management of environmental protection and state regulation of
natural resources, shall prepare and approve the methods for calculation of damage inflicted on the
environment.
On 9 September 2002, the Minister of Environment issued the Order (No. 471) “On the
Approval of the Methods for Calculation of the Amounts of Damage inflicted on the Environment”,
by Item 1 whereof approved the Methods for Calculation of the Amounts of Damage Inflicted on
the Environment. The order was published in the official gazette Valstybės žinios (No. 93-4026) on
25 September 2002.
Paragraph 1 of Article 10 (wording of 18 May 1999) of the Law “On the Procedure of the
Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”
established, inter alia, that orders of ministers shall come into force following the day, when they
10
shall be published in the official gazette Valstybės žinios, provided a later date of their entry into
force has not been established by the order itself.
The Order of the Minister of Environment (No. 471) “On the Approval of the Methods for
Calculation of the Amounts of Damage Inflicted on the Environment” of 9 September 2002 did not
establish a later date of its entry into force, thus, the said order of the Minister of Environment came
into force on 26 September 2002.
Item 2 of the Government Resolution (No. 1065) “On the Recognition of the Resolution of
the Government of the Republic of Lithuania (No. 458) ‘On the Approval of the Methods for
Calculating Damage Inflicted on Nature as a Result of Violation of Environmental Protection Laws’
of 8 November 1991 as Null and Void” of 7 September 2000 established the legal regulation which
means that the impugned in the present case Government Resolution (No. 458) “On the Approval of
the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of Environmental
Protection Laws” of 8 November 1991 became null and void from the day that the Minister of
Environment order which approved the Methods for Calculation of the Amounts of Damage
Inflicted on the Environment came into force.
14. Under Paragraph 1 of Article 95 of the Constitution, the Government of the Republic of
Lithuania shall resolve the affairs of state administration at its sittings by resolutions adopted by
majority vote of all members of the Government.
14.1. The Government, having the powers to adopt resolutions under the Constitution, also
has the powers to establish when the resolution adopted by it comes into force. According to the
Constitution, the Government also has the powers to establish when resolutions adopted by it
become no longer valid. The Government can establish this by adopting a resolution. Thus,
according to the Constitution, only the Government itself has the right to decide when government
resolutions come into force as well as when government resolutions become no longer valid. While
establishing when resolution adopted by it come into force or become no longer valid, the
Government must pay heed to the Constitution and laws.
14.2. The Constitutional Court has held in its rulings more than once that, if the Constitution
directly establishes particular powers of a certain state institution, no state institution can take over
such powers from another institution, or transfer or waive them, while the other institution cannot
take over such powers. Such powers may not be changed or limited by law.
Under the Constitution, the Government by its resolutions may not establish such legal
regulation, according to which the time of the entry into force or becoming no longer valid of a
resolution would depend on entry into force of a legal act of lower power, which is adopted by
another subject.
14.3. Item 2 of the Government Resolution (No. 1065) “On the Recognition of the
11
Resolution of the Government of the Republic of Lithuania (No. 458) ‘On the Approval of the
Methods for Calculating Damage Inflicted on Nature as a Result of Violation of Environmental
Protection Laws’ of 8 November 1991 as Null and Void” of 7 September 2000 established the legal
regulation, according to which the time of recognition of the Government Resolution (No. 458) “On
the Approval of the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws” of 8 November 1991 as null and void depended on the entry into
force of a legal act of lower legal power, which had been issued by the Minister of Environment.
Thus, the Government bound the implementation of its constitutional powers to establish
when the Resolution (No. 458) “On the Approval of the Methods for Calculating Damage Inflicted
on Nature as a Result of Violation of Environmental Protection Laws” of 8 November 1991
becomes no longer valid by a decision of another subject and made it dependent on the entry into
force of the order of the Minister of Environment which had to approve the Methods for Calculation
of the Amounts of Damage Inflicted on the Environment.
14.4. It has been mentioned that, under Item 11 of Paragraph 5 of Article 6 (wording of 28
May 1996) of the Law on Environmental Protection, the Ministry of Environmental Protection shall
prepare and approve the methods for calculation of damage inflicted on the environment. Thus, the
competence of the Ministry of Environment to prepare and approve the methods for calculating
damage inflicted on nature arises directly out of the Law on Environmental Protection.
Under Article 98 of the Constitution, a Minister shall head his respective ministry, shall
resolve issues belonging to the competence of his ministry and shall also discharge other functions
provided for by law. Therefore, upon the entry into force of the 28 May 1996 Law on the
Amendment and Supplement of the Republic of Lithuania’s Law on Environmental Protection, no
other state institution, as well as the Government, had the right to issue the methods for calculation
of damage inflicted on the environment.
14.5. According to Item 2 of Article 94 of the Constitution, the Government shall execute
laws and resolutions of the Seimas concerning the implementation of laws, as well as the decrees of
the President of the Republic. Under Item 7 of Article 94 of the Constitution, the Government shall
discharge other duties prescribed to the Government by the Constitution and other laws.
The Constitutional Court has held in its rulings more than once that in cases when a
government resolution containing norms conflicting with a law is adopted prior to the adoption of
the law, such a government resolution must be harmonised with the norms of the subsequently
adopted law or it must be recognised as no longer valid.
The Government, upon recognition of its Resolution (No. 458) “On the Approval of the
Methods for Calculating Damage Inflicted on Nature as a Result of Violation of Environmental
Protection Laws” of 8 November 1991 as no longer valid by Item 2 of its Resolution (No. 1065)
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“On the Recognition of the Resolution of the Government of the Republic of Lithuania (No. 458)
‘On the Approval of the Methods for Calculating Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws’ of 8 November 1991 as Null and Void” of 7
September 2000, fulfilled the above-indicated requirement of the Constitution. However, by the
legal regulation as established in Item 2 of the Resolution of 7 September 2002, the Government
disregarded the Constitution in that respect that it did not establish a concrete time when the
resolution of 8 November 1991 becomes no longer valid, and bound the implementation of its
constitutional powers with the decision of another subject––made it dependent on the entry into
force of an order of the Minister of Environment which would approve the Methods for Calculation
of the Amounts of Damage Inflicted on the Environment.
This legal regulation disregards the Constitution.
14.6. The Constitutional Court notes that, taking account of the petition of the petitioner, the
matter of the investigation in this case is the way of how the Government Resolution (No. 458) “On
the Approval of the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws” of 8 November 1991 was signed and published. Thus, the
Constitutional Court will not consider the compliance of the Government Resolution (No. 1065)
“On the Recognition of the Resolution of the Government of the Republic of Lithuania (No. 458)
‘On the Approval of the Methods for Calculating Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws’ of 8 November 1991 as Null and Void” of 7
September 2000 with the Constitution.
III
1. The Government Resolution (No. 458) “On the Approval of Methods for Calculating
Damage Inflicted on Nature as a Result of Violation of Environmental Protection Laws” of 8
November 1991 was adopted before the Constitution went into effect.
2. While deciding whether the impugned Government Resolution is not in conflict with the
Constitution and Paragraph 1 (wording of 18 May 1999) of Article 8 of the Law “On the Procedure
of the Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of
Lithuania”, one has to elucidate how the signing, publication and entry into force of government
resolutions used to be regulated at the time when the impugned government resolution was adopted,
i.e. before the entry into effect of the Constitution, as well as later, i.e. during to whole period the
impugned government resolution was in effect.
3. Upon restoration of the independent State of Lithuania on 11 March 1990, the creation of
the national legal system was started. On 11 March 1990, the Supreme Council adopted the
Provisional Basic Law of the Republic of Lithuania. Until 2 November 1992, when the Constitution
of the Republic of Lithuania, which was adopted by the Nation in the referendum on 25 October
13
1992, came into effect, the national legal system used to be created and developed on the basis of
the Provisional Basic Law. The creation and development of the national legal system is a gradual
process.
Upon restoration of the independent State of Lithuania, there existed a legal situation where
legal acts, which had been adopted before restoration of an independent State of Lithuania, were in
effect. It needs to be noted in this context that Article 3 of the Republic of Lithuania’s Law “On the
Entry Into Force of the Republic of Lithuania’s Provisional Basic Law” of 11 March 1990
established that the laws and other legal acts which had been in force in Lithuania until then, which
were in compliance with the Provisional Basic Law of the Republic of Lithuania, shall be valid in
the Republic of Lithuania.
Thus, during that period the legal acts which had been adopted before restoration of the
Independent State of Lithuania and had regulated the procedure of the signing, publication and
entry into force of laws, government resolutions and other legal acts, were valid to the
corresponding extent.
4. Article 97 of the Provisional Basic Law used to establish that the Council of Ministers of
the Republic of Lithuania shall adopt resolutions and issue orders, organises and verifies their
execution on the basis of the statutes of Lithuania and in the course of their execution. Resolutions
and orders of the Council of Ministers must be executed in the entire territory of Lithuania.
5. On 22 March 1990 the Supreme Council adopted the Law on the Government of the
Republic of Lithuania. Paragraph 1 of Article 29 of this law used to establish that Government
normative decisions or those important to the economy of the Republic shall be issued in the form
of resolutions, as well as that government resolutions shall be published in the official gazette
Lietuvos Respublikos Aukščiausiosios Tarybos ir Vyriausybės žinios and in case of need by means
of mass media. Paragraph 3 of Article 29 of the Law on the Government used to establish that
government resolutions shall be signed by the Chairperson of the Government (Prime Minister) and
the Manager of the Government Affairs.
6. On 23 October 1990, the Supreme Council adopted the Law “On the Amendment of
Some Articles of the Provisional Basic Law of the Republic of Lithuania”, by Article II of which it
was established:
“The supreme body of administration of the State of Lithuania shall be further called only
the Government of the Republic of Lithuania.
Therefore, the words ‘the Council of Ministers’ shall be replaced by ‘the Government’ in
Articles 48, 50, 51, Item 21 of Paragraph 2 of Article 78, Articles 81, 93, 95, 97, 98 and 99 of the
Provisional Basic Law of the Republic of Lithuania.”
Article 97 (wording of 23 October 1990) of the Provisional Basic Law used to establish that
14
the Government shall adopt resolutions and issue orders, organises and verifies their execution on
the basis of the statutes of Lithuania and in the course of their execution.
7. On 23 October 1990, the Supreme Council adopted the Law “On the Amendment of
Some Articles of the Republic of Lithuania’s Law on the Government”, by Article 6 of which
Paragraph 3 of Article 29 of the Law on the Government was set forth in a new wording. It was
established therein that government resolutions shall be signed by the Chairperson of the
Government (the Prime Minister).
8. The Nation adopted the Constitution of the Republic of Lithuania in the Referendum of
25 October 1992.
Paragraph 2 of Article 7 of the Constitution provides: “Only laws which are published shall
be valid.”
Paragraph 2 of Article 95 of the Constitution establishes: “Resolutions of the Government
shall be signed by the Prime Minister and the Minister of an appropriate branch.”
9. Upon the entry into force of the Constitution of the Republic of Lithuania, the previously
issued official gazette Lietuvos Aukščiausiosios Tarybos ir Vyriausybės žinios was further published
under an amended title Lietuvos Respublikos Seimo ir Vyriausybės žinios.
10. On 6 April 1993, the Seimas adopted the Law “On the Procedure of the Publication and
Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania”. Article 12 of the
same law provided that the official gazette Valstybės žinios shall be published instead of the official
gazette Lietuvos Republikos Seimo ir Vyriausybės žinios.
Paragraph 3 of Article 2 of the said law established that “laws and other legal acts specified
in this article shall be officially published in the official gazette Valstybės žinios by the officials
who sign them”.
Article 8 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and
Other Legal Acts of the Republic of Lithuania” provided:
“The decisions by the Government of the Republic of Lithuania, by which legal norms are
established, amended or recognised as no longer valid, shall come into force following the day,
when signed by the Prime Minister and the appropriate minister, they shall be published in the
official gazette Valstybės žinios, provided a later date of the entry into force has not been
established by the decision itself.
The decisions by the Government of the Republic of Lithuania, by which legal norms are
not established, amended or recognised as no longer valid, also the Prime Minister’s decrees shall
come into force on the day of their signing even though, they have been published in the official
gazette Valstybės žinios, provided the later date of their entry into force has not been established in
the resolutions and orders themselves.”
15
11. On 18 May 1999, the Seimas adopted the Republic of Lithuania’s Law on the
Amendment of Articles 2, 3, 8, 9, 10, 15, 16, 17, Supplement by Article 101 and Recognition as
Null and Void of Article 7 of the Law “On the Procedure of the Publication and Entry Into Force of
Laws and Other Legal Acts of the Republic of Lithuania”, by Article 4 of which Article 8 of the
Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of
the Republic of Lithuania” (wording of 6 April 1993) was amended and set forth in a new wording:
“The resolutions of the Government of the Republic of Lithuania, by which legal norms are
established, amended or recognised as no longer valid, shall come into force following the day,
when signed by the Prime Minister and the appropriate minister, they shall be published in the
official gazette Valstybės žinios, provided a later date of the entry into force has not been
established by the resolutions themselves.
The resolutions of the Government of the Republic of Lithuania, by which legal norms are
not established, amended or recognised as no longer valid, also the Prime Minister orders, shall
come into force on the day of their signing even though they have been published in the official
gazette Valstybės žinios, provided a later date the entry into force has not been established by the
resolutions and orders themselves.”
By Article 7 of the Republic of Lithuania’s Law on the Amendment of Articles 2, 3, 8, 9,
10, 15, 16, 17, Supplement by Article 101 and Recognition as Null and Void of Article 7 of the Law
“On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the
Republic of Lithuania”, the Law “On the Procedure of the Publication and Entry Into Force of Laws
and Other Legal Acts of the Republic of Lithuania” was supplemented by Article 101 which
provides:
“Within 3 days of their official publication in the official gazette Valstybės žinios, legal acts
specified in Article 2 of this law must be published on the Internet sites of the Seimas and the
institution which has adopted them.
Within 3 days of the day of their entry into force, legal acts specified in Paragraph 1 of
Article 3 of this law must be published on the Internet site of the institution, which has adopted
them.
Legal acts, which contain information which constitute the State or official secret, shall not
be published on the Internet sites.”
12. The Constitutional Court’s ruling of 29 November 2001 recognised the provision of
Article 8 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and Other
Legal Acts of the Republic of Lithuania” (wordings of 6 April 1993 and 18 May 1999) that
government resolutions, by which legal norms are not established, amended or recognised as no
longer valid, may come into force without their official publication, to be in conflict with the
16
principle of a state under the rule of law which is consolidated in the Constitution.
13. On 10 December 2002, the Seimas adopted the Law on the Amendment of the Republic
of Lithuania’s Law “On the Procedure of the Publication and Entry Into Force of Laws and Other
Legal Acts of the Republic of Lithuania”, by Article 1 of which the Law “On the Procedure of the
Publication and Entry Into Force of Laws and Other Legal Acts of the Republic of Lithuania” was
set forth in a new wording.
Article 9 of the Law “On the Procedure of the Publication and Entry Into Force of Laws and
Other Legal Acts of the Republic of Lithuania” (wording of 10 December 2002) provides:
“1. The resolutions of the Government shall come into force following the day, when signed
by the Prime Minister and the appropriate minister, they shall be published in the official gazette
Valstybės žinios, provided a later date of the entry into force has not been established by the
resolutions themselves.
2. The Prime Minister orders shall come into force on the day of their signing, provided a
later day of the entry into force has not been established by the orders themselves. The Prime
Minister orders which have been published in the official gazette Valstybės žinios, shall come into
force on following the day of their signing, provided a later date of the entry into force has not been
established by the orders themselves.”
IV
1. It has been mentioned that Paragraph 2 of Article 7 of the Constitution establishes that
only laws which are published shall be valid, while Paragraph 2 of Article 95 provides that
resolutions of the Government shall be signed by the Prime Minister and the Minister of an
appropriate branch.
2. It has to be noted that the provision of Paragraph 2 of Article 7 of the Constitution that
only laws which are published shall be valid, and the provision of Paragraph 2 of Article 95 of the
Constitution that resolutions of the Government shall be signed by the Prime Minister and the
Minister of an appropriate branch, are to be construed while taking account of the provisions which
are consolidated in other articles, chapters, and other constituent parts of the Constitution.
3. While construing the content of Paragraph 2 of Article 7 of the Constitution that only
laws which are published shall be valid, one must elucidate in what meanings the notion
“published” and the notion “laws” are employed in this Constitution article.
3.1. The notion “published” which is used in Paragraph 2 of Article 7 of the Constitution
means, inter alia, that the law must establish the procedure of publication of the laws and the source
of information in which the laws must be published.
3.1.1. It should be noted that while establishing by law the procedure of publication of laws,
one must observe the requirements of the Constitution that the laws adopted by the Seimas shall
17
come into effect after the signing and official promulgation thereof by the President of the Republic
of Lithuania, unless the laws themselves establish a later date of entry into effect (Paragraph 1 of
Article 70), that within ten days of receiving a law adopted by the Seimas, the President of the
Republic shall either sign and officially promulgate the said law, or shall refer it back to the Seimas
together with relevant reasons for consideration (Paragraph 1 of Article 71), that if the law adopted
by the Seimas is not referred back and signed by the President of the Republic, such a law shall
come into effect upon the signing and official promulgation thereof by the Speaker of the Seimas
(Paragraph 2 of Article 71), that the President of the Republic must, within 5 days, sign and
officially promulgate a law or other act adopted by referendum (Paragraph 3 of Article 71), that if
the President of the Republic does not sign and promulgate such a law within the indicated period,
the said law shall come into effect upon the signing and official promulgation thereof by the
Speaker of the Seimas (Paragraph 4 of Article 71), that the President of the Republic must sign and
forthwith officially promulgate the laws which were referred back by the President of the Republic
and considered anew and adopted by the Seimas within three days (Paragraph 3 of Article 72), that
the President of the Republic shall sign and promulgate laws adopted by the Seimas or refer them
back to the Seimas in accordance with the procedure established in Article 71 of the Constitution
(Item 24 of Article 84), that the President of the Republic shall sign the adopted law on an alteration
of the Constitution and officially promulgate it within 5 days (Paragraph 1 of Article 149), that if
the President of the Republic does not sign and promulgate such a law during the indicated time,
this law shall come into effect when the Speaker of the Seimas signs and promulgates it (Paragraph
2 of Article 149), and other norms and principles of the Constitution.
3.1.2. According to Paragraph 2 of Article 7 of the Constitution, the publication of laws
must allow the subjects of the law to be certain that the announced law is exactly the law which has
been adopted by the Seimas or which has been adopted in a referendum. Such announcement of
laws is their official publication.
3.1.3. In its ruling of 11 January 2001, the Constitutional Court held that the official
publication of laws in pursuance with the procedure established in the Constitution and laws is a
necessary condition so that laws be valid and that subjects of legal relations should know as to what
laws are valid, what their content is, and that they might follow these laws. There may not be not
published laws in a democratic state.
3.1.4. The notion “published” which is employed in Paragraph 2 of Article 7 of the
Constitution also means that laws must be published publicly. The Constitutional Court has held
that law may not be non-public (the Constitutional Court’s rulings of 29 November 2001 and 30
May 2003).
Laws must be published publicly so that all legal subjects might get acquainted with them.
18
The constitutional requirement that only laws which are published can be valid is an important
precondition of legal certainty. This constitutional requirement is inseparable from the
constitutional principle of a state under the rule of laws.
3.2. The constitutional principle that law may not be non-public is reflected in Paragraph 2
of Article 7 of the Constitution.
Thus, taking account of the constitutional requirement that law may not be non-public, the
notion “laws” which is employed in Paragraph 2 of Article 7 of the Constitution should not be
construed only literally. It should be construed in an expanding manner, as a notion that includes
not only legal acts, which have the power of the law, but also other legal acts.
4. In its ruling of 9 July 1999, the Constitutional Court held that all parts of a normative
legal act (as well as annexes) constitute a whole, are inseparably connected and have equal legal
power.
Annexes may not be separated from a legal act because, upon changing legal regulation
established therein, the entire content of the legal regulation established in the legal act is changed.
Thus, if the said requirements of the Constitution are observed, the whole legal act with all
its constituent parts must be published.
5. Under Article 14 of the Constitution, Lithuanian shall be the state language, therefore,
only those legal acts which are published in the Lithuanian state language are valid in Lithuania.
6. Thus, only those legal acts that have been published according to the requirements of
official publication and publicity which are consolidated in the Constitution, as well as the
constitutional requirement that the whole legal act (all its constituent parts) should be published,
also the constitutional requirement that legal acts must be published in the Lithuanian state
language, may be ruled to be in compliance with the requirements of Paragraph 2 of Article 7 of the
Constitution, therefore, to be valid.
7. Alongside, it needs to be noted that the Constitution establishes expressis verbis only
separate elements of publication of the laws on amendment of the Constitution (Paragraphs 1 and 2
of Article 149), laws (Paragraph 1 of Article 70, Article 71, Paragraph 3 of Article 72, Item 24 of
Article 84), other acts adopted by the Seimas (Paragraph 2 of Article 72). The Constitution does not
establish expressis verbis sources of the official publication of legal acts or all possible ways of
their publication. The legislature must establish it by law. While regulating these relationships, the
legislature, taking account of the variety of legal acts and their content, may establish a
differentiated legal regulation. While establishing it, the legislature must observe the Constitution in
all cases.
8. The provision of Paragraph 2 of Article 7 of the Constitution that only laws which are
published shall be valid should be construed, as well as all other provisions of the Constitution, by
19
only taking account of the principle of superiority of the Constitution as the basic requirement of a
democratic state under the rule of law.
The constitutional principle of the superiority of the Constitution is consolidated in
Paragraph 1 of Article 7 of the Constitution, which provides that any law or other act, which is
inconsistent with the Constitution, shall be invalid. Different aspects of this principle are also
consolidated in Paragraph 2 of Article 5 which provides that the scope of power shall be limited by
the Constitution, in Paragraph 1 of Article 6, which establishes that the Constitution shall be an
integral and directly applicable act, in Paragraph 2 of Article 6, which establishes that everyone
may defend his rights on the grounds of the Constitution, in Paragraph 1 of Article 30, which
establishes that the person whose constitutional rights or freedoms are violated shall have the right
to apply to court, in Paragraph 1 of Article 102, which stipulates that the Constitutional Court shall
decide whether the laws and other acts of the Seimas are not in conflict with the Constitution and
whether acts of the President of the Republic and the Government are not in conflict with the
Constitution or laws, in Paragraph 1 of Article 110, which establishes that a judge may not apply a
law, which is in conflict with the Constitution, and other provisions of the Constitution.
While construing the principle of the superiority of the Constitution, in its ruling of 24
December 2002 the Constitutional Court held the following: “The principle of the supremacy of the
Constitution means that the Constitution rests in the exceptional, highest, place in the hierarchy of
legal acts, that no legal act may be in conflict with the Constitution, that no one is permitted to
violate the Constitution, that the constitutional order must be protected, that the Constitution itself
consolidates the mechanism permitting determining whether legal acts (parts thereof) are not in
conflict with the Constitution. In this respect, the principle of the supremacy of the Constitution,
which is established in the Constitution, is inseparably linked with the constitutional principle of a
state under the rule of law, which is a universal constitutional principle upon which the entire
Lithuanian legal system and the Constitution itself are based. Violation of the principle of the
supremacy of the Constitution would mean that the constitutional principle of a state under the rule
of law is violated as well.”
In the context of the case under consideration it needs to be noted that the principle of the
superiority of the Constitution implies the duty of the legislature or other lawmaking subjects to
revise legal acts, which were issued before the entry into effect of the Constitution, while taking
account of norms and principles of the Constitution, to ensure a harmonious hierarchical system of
legal acts, which regulate the same relationships.
9. The Constitution shall be an integral and directly applicable act (Paragraph 1 of Article 6
of the Constitution).
9.1. While construing the principle of integrity of the Constitution, the Constitutional Court
20
has held more than once in its rulings that norms set forth in different articles of the Constitution are
co-ordinated with each other and constitute an integral whole, a harmonious system; no provision of
the Constitution may be opposed against other provisions of the Constitution, it is not permitted to
construe it in such a way that the meaning of other provisions of the Constitution be denied or
distorted.
9.2. The Constitution has certain structural peculiarities. The Constitution consists of the
Preamble, fourteen chapters, final provisions, as well as other constituent parts of the Constitution.
9.2.1. Article 150 of the Constitution provides:
“The constituent part of the Constitution of the Republic of Lithuania shall be:
The 11 February 1991 Constitutional Law “On the State of Lithuania”;
The 8 June 1992 Constitutional Act ‘On the Non-Alignment of the Republic of Lithuania
with Post-Soviet Eastern Unions’”.
9.2.2 Article 152 of the Constitution provides: “The procedure of entry into effect of this
Constitution and separate provisions thereof shall be regulated by Law of the Republic of Lithuania
‘On the Procedure for Entry into Force of the Constitution of the Republic of Lithuania’, which,
together with this Constitution of the Republic of Lithuania, shall be adopted by referendum.”
The Law “On the Procedure for Entry into Force of the Constitution of the Republic of
Lithuania” was adopted by the Nation in the Referendum of 25 October 1992 together with the
Constitution of the Republic of Lithuania.
The Law “On the Procedure for Entry into Force of the Constitution of the Republic of
Lithuania” provides:
“Article 1
Upon entry into effect of the Constitution of the Republic of Lithuania, the Provisional
Basic Law of the Republic of Lithuania shall become null and void.
Article 2
Laws, other legal acts or parts thereof which were in effect on the territory of the Republic
of Lithuania prior to the adoption of the Constitution of the Republic of Lithuania, shall be effective
inasmuch as they are not in conflict with the Constitution and this Law, and shall remain in effect
until they are either declared null and void or harmonised with the provisions of the Constitution.
Article 3
Provisions of the laws of the Republic of Lithuania which regulate the status of the supreme
institutions of State power and administration of the Republic of Lithuania, of the deputies and
municipalities shall be in effect until the elected Seimas decides otherwise.
Article 4
The powers of the Supreme Council of the Republic of Lithuania and its deputies shall be
21
terminated when the elected Seimas of the Republic of Lithuania convenes into its first sitting.
The members of the Seimas of the Republic of Lithuania shall convene in the sitting on the
third working day after the official announcement of the Central Electoral Commission, following
both election rounds, that not less than 3/5 of all the members of the Seimas have been elected.
Article 5
The following text shall be the established oath of the member of the Seimas of the Republic
of Lithuania:
‘I, (full name),
Swear to be faithful to the Republic of Lithuania;
Swear to respect and execute its Constitution and laws and to protect the integrity of its
lands;
Swear to strengthen, to the best of my ability, the independence of Lithuania, and to
conscientiously serve my Homeland, Democracy, and the welfare of the people of Lithuania.
So help me God.’
The oath may also be taken omitting the last sentence.
Article 6
During the period that there is no President of the Republic, the legal situation shall be
equivalent to that provided for in Article 89 of the Constitution of the Republic of Lithuania.
If necessary, the Seimas, by a majority vote of more than half of all the members of the
Seimas, may prolong the terms provided for in Article 89, but not longer than a four-month period.
Article 7
Justices of the Constitutional Court of the Republic of Lithuania, including the President of
the Constitutional Court, must be appointed within one month after the President of the Republic is
elected.
Upon the initial appointment of Constitutional Court justices, three of them shall be
appointed for a three-, three for a six-, and three for a nine-year term.
The President of the Republic, the Speaker of the Seimas, and the President of the Supreme
Court, while proposing to appoint Constitutional Court justices, shall indicate which of them are to
be appointed for a three-, which for a six-, and which for a nine-year term.
The justices of the Constitutional Court who will be appointed for three- and six-year terms
may take the same office for one more term of office after an interval of not less than three years.
Article 8
The provisions of the Third Paragraph of Article 20 of the Constitution of the Republic of
Lithuania shall become applicable once the laws on criminal procedure of the Republic of Lithuania
are harmonised with this Constitution.”
22
9.2.3. It needs to be emphasised that the provisions of the Law “On the Procedure for Entry
into Force of the Constitution of the Republic of Lithuania” are inseparably related with other
provisions of the Constitution. The provisions, which are consolidated in some articles of this law,
supplement other provisions of the Constitution, which the former could not be implemented
without. Other articles of this law establish the peculiarities of implementation of the provisions of
the Constitution during the period when state institutions provided for by the Constitution were in
the course of establishment, also when the legal regulation which is required by the Constitution
was being created.
The Law “On the Procedure for Entry into Force of the Constitution of the Republic of
Lithuania”, which was adopted by the Nation in the Referendum together with the Constitution and
provisions of which are inseparably related with the provisions and principles of the Constitution
and supplement other provisions of the Constitution or establish peculiarities of implementation of
corresponding provisions of the Constitution may not be itself a non-constituent part of the
Constitution.
Thus, the Law “On the Procedure for Entry into Force of the Constitution of the Republic of
Lithuania” is a constituent part of the Constitution and its provisions have the power of the
Constitution.
10. It should be noted that the wording of Article 2 of the Law “On the Procedure for Entry
into Force of the Constitution of the Republic of Lithuania” “inasmuch as they are not in conflict
with the Constitution and this Law”, which is related with the principle of the superiority of the
Constitution, and in particular with the provision of Paragraph 1 of Article 7 of the Constitution that
any law or other act which is inconsistent with the Constitution shall be invalid, means that the
Constitution establishes that legal acts, which had been adopted before the entry into effect of the
Constitution, may not be valid if they are inconsistent with the Constitution and if it has been
established, on the basis and according to the procedure established in the Constitution that those
legal acts are in conflict with the Constitution.
Under the Constitution, the formulation “shall remain in effect until they are either declared
null and void or harmonised with the provisions of the Constitution” of Article 2 of the Law “On
the Procedure for Entry into Force of the Constitution of the Republic of Lithuania” means that the
legislature or other legislative subjects have the duty to revise all legal acts adopted by them prior to
the entry into effect of the Constitution and still remaining in force, also the legal acts which were
adopted by no longer existing institutions after the entry into effect of the Constitution and still
remaining in force which regulate the relationships which are assigned to the sphere of regulation of
an appropriate legislative subject, as well as the legal acts which had been adopted before the
restoration of the independent State of Lithuania and remained in force after the restoration of the
23
independent State of Lithuania and, after the entry into effect of the Constitution, regulate the
relationships which are assigned to the sphere of regulation of an appropriate legislative subject,
and to assess whether those legal acts, in the opinion of that legislative subject, are not in conflict
with the Constitution.
The legislature or another legislative subject, upon an assessment that, in his opinion, a legal
act, which had been adopted before the entry into effect of the Constitution and still remaining in
force, or a legal act, adopted by no longer existing institutions after the entry into effect of the
Constitution and still remaining in force, which regulates the relationships which are assigned to the
sphere of regulation of an appropriate legislative subject, or a legal act, which had been adopted
before the restoration of the independent State of Lithuania and remained in force after restoration
of the independent State of Lithuania and, after the entry into effect of the Constitution regulate the
relationships which are assigned to the sphere of regulation of an appropriate legislative subject, is
in conformity with the Constitution, may leave such a legal act in effect. On the other hand, if the
legislature or another legislative subject assesses that, in its opinion, a legal act (or part thereof),
which had been adopted before the entry into effect of the Constitution and still remaining in force,
or a legal act (or part thereof), adopted by no longer existing institutions after the entry into effect of
the Constitution and still remaining in force which regulate the relationships which are assigned to
the sphere of regulation of an appropriate legislative subject, or a legal act (or part thereof), which
had been adopted before the restoration of the independent State of Lithuania and remained in force
after restoration of the independent State of Lithuania and, after the entry into effect of the
Constitution, regulate the relationships, which are assigned to the sphere of regulation of an
appropriate legislative subject, is not in conformity with the Constitution, he has a constitutional
duty to either harmonise this act with the Constitution, i.e. to pass a new legal act, which would
amend, in the opinion of that legislative subject, the legal act (or part thereof) that is not in
conformity with the Constitution, or to recognise such a legal act, which, in his opinion, is not in
conformity with the Constitution, as no longer valid.
The constitutionality of legal acts (or parts thereof), which have not been harmonised with
the Constitution by passing a new legal act by the appropriate legislative subject, which would have
amended, in the opinion of that legislative subject, the legal act (or part thereof) that was not in
conformity with the Constitution, and which have not been recognised as no longer valid, may be
verified by exercising constitutional review. According to the Constitution, the Constitutional Court
decides as to the conformity of the Republic of Lithuania’s laws, other acts adopted by the Supreme
Council, government acts, which were adopted prior to the entry into effect of the Constitution, as
well as of legal acts of corresponding legal power, which were adopted before the restoration of the
independent State of Lithuania, but remained in force after the restoration of the independent State
24
of Lithuania, and regulate the relationships that are assigned to sphere of regulation of the Seimas or
the Government. In its ruling of 30 May 2003, the Constitutional Court held that, according to the
Constitution, only the Constitutional Court has the powers to officially construe the Constitution.
11. It needs to be noted in the context of the case at issue that the duty of the legislature or
another lawmaking subjects to revise all legal acts adopted by them before the entry into effect of
the Constitution and still remaining in force, also legal acts, which were adopted by no longer
existing institutions after the entry into effect of the Constitution and still remaining in force which
regulate the relationships which are assigned to the sphere of regulation of an appropriate legislative
subject, as well as legal acts, which were adopted before the restoration of the independent State of
Lithuania and remained in force after restoration of the Independent State of Lithuania and, after
entry into effect of the Constitution, regulate the relationships which are assigned to the sphere of
regulation of an appropriate legislative subject, and to assess whether those legal acts, in the opinion
of that legislative subject, is not in conflict with the Constitution, also implies their duty to
guarantee that these legal acts be harmonised with the provisions of the Constitution not only
according to the content and extent of legal regulation established therein, as well as not only
according to the form of a legal act, but also according to the publication of these legal acts, as it is
required by Paragraph 2 of Article 7 of the Constitution.
It should be noted that the process of the revision and assessment of legal acts as to their
conformity with the Constitution, which were adopted before the entry into force of the
Constitution, is not a one-off act, however, this process may not last for a groundlessly long time
period. The duty of the legislature or another lawmaking subjects to revise all legal acts adopted by
them before the entry into effect of the Constitution and which still remain in force, also legal acts,
which were adopted by no longer existing institutions after the entry into effect of the Constitution
and still remaining in force, which regulate the relationships which are assigned to the sphere of
regulation of an appropriate legislative subject, as well as legal acts, which had been adopted before
the restoration of the independent State of Lithuania and remained in force after restoration of the
independent State of Lithuania and, after the entry into effect of the Constitution, regulate the
relationships, which are assigned to the sphere of regulation of an appropriate legislative subject,
and assess their conformity with the Constitution within a reasonably short period, stems from the
principle of the superiority of the Constitution, and the constitutional principle of a state under the
rule of law. This can be also said about the revision and assessment of such legal acts in respect of
the manner of publication.
12. It has been mentioned that, under Paragraph 2 of Article 95 of the Constitution,
resolutions of the Government shall be signed by the Prime Minister and the Minister of an
appropriate branch.
25
Thus, Paragraph 2 of Article 95 of the Constitution establishes what state officials have the
powers to sign resolutions of the Government. The provision of Paragraph 2 of Article 95 of the
Constitution also means that the Prime Minister and the Minister of an appropriate branch must sign
resolutions of the Government if they have been adopted according to the established procedure, as
well as that it is forbidden to persons, who are not specified in Paragraph 2 of Article 95 of the
Constitution, i.e. who are not the Prime Minister and the Minister of an appropriate branch, or to
only one of these officials, to sigh resolutions of the Government.
According to the Constitution, after the entry into effect of the Constitution, only those
resolutions of the Government that are signed by the Prime Minister and the Minister of an
appropriate branch are authentic.
V
On the compliance of the Government Resolution (No. 458) “On the Methods for
Calculating Damage Inflicted on Nature as a Result of Violation of Environmental Protection
Laws” with Paragraph 2 of Article 7 of the Constitution and Paragraph 1 (wording of 18 May
1999) of Article 8 of the Law “On the Procedure of the Publication and Entry Into Force of
Laws and Other Legal Acts of the Republic of Lithuania”.
1. It has been mentioned that the petitioner has doubts as to whether the Government
Resolution (No. 458) “On the Methods for Calculating Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws” of 8 November 1991 is not in conflict with Paragraph
2 of Article 7 of the Constitution and Paragraph 1 (wording of 18 May 1999) of Article 8 of the
Law “On the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of
the Republic of Lithuania”.
The petitioner based his doubts on the fact that the impugned government resolution was
published in the official gazette Lietuvos Respublikos Aukščiausiosios Tarybos ir Vyriausybės
žinios, but the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws as established in Item 1 of this resolution was neither published
together with the impugned government resolution, nor later.
2. Item 1 of the Government Resolution (No. 458) “On the Methods for Calculating Damage
Inflicted on Nature as a Result of Violation of Environmental Protection Laws” of 8 November
1991, whereby the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws were approved, is inseparably related with Items 2 and 3 of this
resolution, which regulate different aspects of implementation of the Methods for Calculating
Damage Inflicted on Nature as a Result of Violation of Environmental Protection Laws.
3. It has been held in this ruling of the Constitutional Court that all parts of a normative legal
act (as well as annexes) constitute a whole, are inseparably related and have equal legal power, that
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annexes may not be separated from the legal act, because the entire content of legal regulation,
which is established in the legal act, is changed while changing the legal regulation established in
them.
Thus, the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws are an inseparable part of the Government Resolution (No. 458)
“On the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws” of 8 November 1991.
4. It has been held in this ruling of the Constitutional Court that only those legal acts that
have been published while observing, inter alia, the requirements of official and public publication,
which are established in the Constitution, as well as the constitutional requirement that the entire
legal act (all its constituent parts) must be published, may be ruled to be in compliance with the
requirements of Paragraph 2 of Article 7 of the Constitution, therefore, to be valid.
Otherwise, subjects of law would not be certain that the published legal act is precisely the
one that has been adopted by the competent lawmaking subject.
It has also been held in this ruling of the Constitutional Court that, according to the
Constitution, lawmaking subjects have a duty to revise all legal acts adopted by them before the
entry into effect of the Constitution and still remaining in force, and to assess whether those acts, in
the opinion of the lawmaking subject, are not in conflict with the Constitution.
It has been also held that the said duty of lawmaking subjects also implies their duty to
guarantee that those legal acts be harmonised with the provisions of the Constitution not only
according to the content and extent of legal regulation established therein, as well as not only
according to the form of the legal act, but also according to the publication of these legal acts, as it
is required by Paragraph 2 of Article 7 of the Constitution.
5. It is clear from the material of the case that the Government Resolution (No. 458) “On the
Methods for Calculating Damage Inflicted on Nature as a Result of Violation of Environmental
Protection Laws" of 8 November 1991 was published on 30 November 1991 in the official gazette
Lietuvos Respublikos Aukščiausiosios Tarybos ir Vyriausybės žinios (1991, No. 33-928). However,
the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of Environmental
Protection Laws, as approved by this government resolution, were not published in the official
gazette Lietuvos Respublikos Aukščiausiosios Tarybos ir Vyriausybės žinios. The representative of
the party concerned maintains that the said methods were published in the bulletin “Environmental
Protection in the Republic of Lithuania” (1991, No. 2) of the Environmental Protection Department
and Lithuanian Information Centre, which was published in 5000 copies, and in a separate
publication of the Environmental Protection Department “Methods for Calculating Damage
Inflicted on Nature as a Result of Violation of Environmental Protection Laws” in 3000 copies. The
27
representative of the party concerned maintains that all ministries, services and organisations
concerned were supplied with these methods.
It is also clear from the case material that even after the entry into effect of the Constitution,
the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of Environmental
Protection Laws as approved by the Government Resolution (No. 458) “On the Methods for
Calculating Damage Inflicted on Nature as a Result of Violation of Environmental Protection
Laws” of 8 November 1991 were published neither in the official gazette Lietuvos Respublikos
Seimo ir Vyriausybės žinios which replaced the official gazette Lietuvos Aukščiausiosios Tarybos ir
Vyriausybės žinios, nor in the official gazette Valstybės žinios which replaced the latter. The said
Methods for Calculating Damage Inflicted on Nature as a Result of Violation of Environmental
Protection Laws as a constituent part of the Government Resolution (No. 458) “On the Methods for
Calculating Damage Inflicted on Nature as a Result of Violation of Environmental Protection
Laws” of 8 November 1991 was not published in any other official source of publication of legal
acts.
6. The publication of the Methods for Calculating Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws as a constituent part of the Government Resolution
(No. 458) “On the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws” of 8 November 1991 in a non-official source of publication of
legal acts may not be considered complying with the requirements of the official and public
publication of legal acts as consolidated in the Constitution, as well as the constitutional
requirement that a whole legal act (all its constituent parts) must be published.
The Government, having not published the Methods for Calculating Damage Inflicted on
Nature as a Result of Violation of Environmental Protection Laws as approved by the Government
Resolution (No. 458) “On the Methods for Calculating Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws” of 8 November 1991 after the entry into effect of the
Constitution, has not fulfilled its constitutional duty to revise this legal act, which had been adopted
before the entry into force of the Constitution and still remaining in force, and harmonise it with the
provisions of the Constitution according to the manner of its publication. This is not in conformity
with the requirement of Article 2 of the Law “On the Procedure for Entry Into Force of the
Constitution of the Republic of Lithuania”.
7. Taking account of the arguments set forth, it should be concluded that the Government
Resolution (No. 458) “On the Methods for Calculating Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws” of 8 November 1991 was in conflict with Paragraph 2
of Article 7 of the Constitution, Article 2 of the Law “On the Procedure for Entry Into Force of the
Constitution of the Republic of Lithuania”, and the constitutional principle of a state under the rule
28
of law.
8. Having held that the Government Resolution (No. 458) “On the Methods for Calculating
Damage Inflicted on Nature as a Result of Violation of Environmental Protection Laws” of 8
November 1991 was in conflict with Paragraph 2 of Article 7 of the Constitution, Article 2 of the
Law “On the Procedure for Entry Into Force of the Constitution of the Republic of Lithuania”, and
the constitutional principle of a state under the rule of law, the Constitutional Court will not
investigate the compliance of the said government resolution with Paragraph 1 (wording of 18 May
1999) of Article 8 of the Law “On the Procedure of the Publication and Entry Into Force of Laws
and Other Legal Acts of the Republic of Lithuania”. In this part the case must be dismissed.
9. Alongside, it needs to be noted that a duty of all persons to preserve nature and to
compensate the harm (damage) to the natural environment, when it has been done, arises out of 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 provision of Paragraph 1 of Article 54 of the
Constitution that the state shall look after the protection of the natural environment, its fauna and
flora, individual objects of nature and districts of particular value, and shall supervise that natural
resources be used moderately and they be restored and augmented, and the provision of Paragraph 2
of Article 54 of the Constitution that the destruction of land and the subterranean, the pollution of
water and air, environmental degradation as the result of radioactive impact, and the
impoverishment of fauna and flora, shall be prohibited by law.
The fact that this ruling of the Constitutional Court has recognised the Government
Resolution (No. 458) “On the Methods for Calculating Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws” of 8 November 1991 to be in conflict with Paragraph
2 of Article 7 of the Constitution, Article 2 of the Law “On the Procedure for Entry Into Force of
the Constitution of the Republic of Lithuania”, and the constitutional principle of a state under the
rule of law does not mean that the persons who have inflicted harm (damage) on the natural
environment, do not have the constitutional duty to compensate this harm (damage). In all cases the
harm (damage) inflicted on the natural environment has to be compensated irrespective of the fact
whether any methods of compensation of the harm (damage) caused to the natural environment has
been established. In case of a dispute, the amount of the harm (damage) may be established
according to the judicial procedure.
VI
On the compliance of the Government Resolution (No. 458) “On the Methods for
Calculating Damage Inflicted on Nature as a Result of Violation of Environmental Protection
Laws” of 8 November 1991 with Paragraph 2 of Article 95 of the Constitution.
1. It has been mentioned that the petitioner doubts as to compliance of the Government
29
Resolution (No. 458) “On the Methods for Calculating Damage Inflicted on Nature as a Result of
Violation of Environmental Protection Laws” of 8 November 1991 with Paragraph 2 of Article 95
of the Constitution.
2. The signing of a government resolution is a one-off act. Thereby it is confirmed that the
government resolution is adopted and that the said signed text of the government resolution is
authentic.
3. In needs to be noted in the context of the case at issue that the Government Resolution
(No. 458) “On the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws” of 8 November 1991 was adopted and signed by the Prime
Minister before the entry into force of the Constitution.
4. The requirement of Paragraph 2 of Article 95 of the Constitution establishing that
resolutions of the Government shall be signed by the Prime Minister and the Minister of an
appropriate branch must be applied to government resolutions, which were adopted after the entry
into effect of the Constitution. This requirement may not be applied retroactively to the government
acts that had been adopted and signed before the entry into effect of the Constitution.
5. Taking account of the arguments set forth, the Constitutional Court will not investigate in
the case at issue whether the Government Resolution (No. 458) “On the Methods for Calculating
Damage Inflicted on Nature as a Result of Violation of Environmental Protection Laws” of 8
November 1991 was not in conflict with Paragraph 2 of Article 95 of the Constitution.
Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and
Articles 1, 53, 54, 55, 56 and Paragraph 3 of Article 69 of the Law on the Constitutional Court of
the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following
ruling:
1. To recognise that the Resolution of the Government of the Republic of Lithuania (No.
458) “On the Methods for Calculating Damage Inflicted on Nature as a Result of Violation of
Environmental Protection Laws” of 8 November 1991 was in conflict with Paragraph 2 of Article 7
of the Constitution of the Republic of Lithuania, Article 2 of the Republic of Lithuania’s Law “On
the Procedure for Entry Into Force of the Constitution of the Republic of Lithuania”, and the
constitutional principle of a state under the rule of law.
2. To dismiss the part of the case subsequent to the petition of the Vilnius Regional Court,
the petitioner, requesting an investigation into whether the Resolution of the Government of the
Republic of Lithuania (No. 458) “On the Methods for Calculating Damage Inflicted on Nature as a
Result of Violation of Environmental Protection Laws” of 8 November 1991 was not in conflict
with Paragraph 1 (wording of 18 May 1999) of Article 8 of the Republic of Lithuania’s Law “On
30
the Procedure of the Publication and Entry Into Force of Laws and Other Legal Acts of the
Republic of Lithuania”.
This ruling of the Constitutional Court is be final and not subject to appeal.
The ruling is pronounced in the name of the Republic of Lithuania.
Justices of the Constitutional Court:
Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas