THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

Transcription

1 Case No. 14/02 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA RULING ON THE COMPLIANCE OF PARAGRAPH 2 OF ARTICLE 7, PARAGRAPHS 1, 9, AND 10 OF ARTICLE 8, PARAGRAPH 2 OF ARTICLE 13, PARAGRAPH 7 OF ARTICLE 18, AND PARAGRAPHS 3, 6, AND 7 OF ARTICLE 22 OF THE REPUBLIC OF LITHUANIA S LAW ON HUNTING WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA 13 May 2005 Vilnius The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Armanas Abramavičius, Toma Birmontienė, Egidijus Kūris, Kęstutis Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Vytautas Sinkevičius, Stasys Stačiokas, and Romualdas Kęstutis Urbaitis The court reporter Daiva Pitrėnaitė Gintaras Steponavičius and Raimondas Šukys, acting as the representatives of a group of members of the Seimas of the Republic of Lithuania, the petitioner Neringa Azguridienė, an advisor at the Legal Department of the Office of the Seimas, and Darius Karvelis, a senior advisor to the Committee on Environment Protection of the Seimas, acting as the representatives of the Seimas 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 and Paragraph 3 of Article 54 of the Law on the Constitutional Court of the Republic of Lithuania, on 5 6 April 2005 and 10 May 2005, in its public hearing, considered case No. 14/02 subsequent to the petition of a group of members of the Seimas, the petitioner, requesting an investigation into whether: 1) the provision It shall be prohibited to hunt < > in the land lots located in hunting plots, if their owners have prohibited hunting therein upon the procedure established in Paragraph 2 of

2 2 Article 13 of the Law of Paragraph 2 of Article 7 of the Republic of Lithuania s Law on Hunting, the provision The owner of a private land lot, whose land is intended to be assigned to a hunting plot unit according to the procedure established in Article 8 of this Law, shall have the right to prohibit hunting in the land owned by him, if agricultural crops or forest will suffer damage during the hunting of Paragraph 2 of Article 13 of the same law, and the provision The damage inflicted by huntable animals shall not be recovered, if it is made in the land lots whose owner has prohibited hunting upon the procedure established in Paragraph 2 of Article 13 of the Law of Paragraph 7 of Article 18 of the same law are not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution of the Republic of Lithuania; 2) the provision A hunting plot unit must comprise at least 1000 ha of continuous hunting area, save the cases where smaller hunting plot units are established for scientific and education purposes upon the proposal of the Ministry of Environment, or where such units are established in the territories of fishery ponds upon the proposal of the Ministry of Agriculture of Paragraph 1 of Article 8 of the Republic of Lithuania s Law on Hunting is not in conflict with Paragraph 1 of Article 46 of the Constitution of the Republic of Lithuania. The Constitutional Court has established: I A group of members of the Seimas, the petitioner, applied to the Constitutional Court with the petition requesting an investigation into whether: 1) the provision It shall be prohibited to hunt < > in the land lots located in hunting plots, if their owners have prohibited hunting therein upon the procedure established in Paragraph 2 of Article 13 of the Law of Paragraph 2 of Article 7 of the Law on Hunting (Official Gazette Valstybės žinios, 2002, No ), the provision The owner of a private land lot, whose land is intended to be assigned to a hunting plot unit according to the procedure established in Article 8 of this Law, shall have the right to prohibit hunting in the land owned by him, if agricultural crops or forest will suffer damage during the hunting of Paragraph 2 of Article 13 of the same law, and the provision The damage inflicted by huntable animals shall not be recovered, if it is made in the land lots whose owner has prohibited hunting upon the procedure established in Paragraph 2 of Article 13 of the Law of Paragraph 7 of Article 18 of the same law are not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution; 2) the provision A hunting plot unit must comprise at least 1000 ha of continuous hunting area, save the cases where smaller hunting plot units are established for scientific and education purposes upon the proposal of the Ministry of Environment, or where such units are established in

3 3 the territories of fishery ponds upon the proposal of the Ministry of Agriculture of Paragraph 1 of Article 8 of the Law on Hunting is not in conflict with Paragraph 1 of Article 46 of the Constitution. II The petition of the petitioner is based on the following arguments. The impugned provisions of Articles 7, 13, and 18 of the Law on Hunting consolidate the presumption of admissibility of hunting in private land lots which may unreasonably limit the rights of owners to freely use their private property. Shooting and catching wild animals are objectively dangerous actions not only to the crops and forest in the lot where the hunting takes place, but to people in the forest as well. According to the Law on Hunting, these dangerous actions in a private lot may be exercised without the owner s knowing about particular events of hunt. Therefore, in the opinion of the petitioner, the presumption that it is allowed to hunt in private lots until it becomes prohibited to do so, violates the rights of the owners which are entrenched in the Constitution. The petitioner notes that pursuant to Paragraph 2 of Article 13 of the Law on Hunting, the owner may prohibit hunting in a private land lot only due to possible damage to forest or crops, however, the owner has no right to prohibit hunting on the basis of other reasons, for example due to safety of people or personal beliefs related to care for animals. In the petitioner s opinion, the constitutional right of ownership is thus unreasonably limited. Due to this, the petitioner doubts whether the provisions consolidated in Item 2 of Paragraph 2 of Article 7, Paragraph 2 of Article 13 and Paragraph 7 of Article 18 of the Law on Hunting are not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution. The petitioner also states that the provision of Paragraph 1 of Article 8 of the Law on Hunting that a hunting plot unit must comprise at least 1000 ha of continuous hunting area unreasonably limits the rights of private owners to use lots, the area of which is less than 1000 ha, for hunting and restricts the private initiative of hunting business. Therefore, the petitioner doubts as to whether this provision of the Law on Hunting is not in conflict with Paragraph 1 of Article 46 of the Constitution. III 1. In the course of the preparation of the case for the Constitutional Court s hearing, written explanations of the representatives of the party concerned, the Seimas, who were A. Macaitis, a member of the Seimas, D. Karvelis, a senior consultant to the Committee on Environment Protection of the Seimas, and Neringa Azguridienė, the chief expert at the Legal Department of the Office of the Seimas, were received It is noted in the explanations of the representatives of the party concerned that the issue of constitutionality of the impugned provisions of the Law on Hunting must be solved on the basis of

4 4 provisions of Articles 53 and 54 of the Constitution. In Paragraph 3 of Article 53 of the Constitution one consolidates the duty of the state and each person to protect the environment from harmful influences. The guidelines of implementation of this duty are established in Article 54 of the Constitution, Paragraph 1 of which provides 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 that they be restored and augmented. According to the representatives of the party concerned, environmental protection is a public interest, therefore, the implementation of the ownership rights should not be in conflict with the provisions of national policy on environmental protection. In the opinion of the representatives of the party concerned, when analysing the compliance of the impugned provisions of the Law on Hunting with Article 23 of the Constitution, one must take into account their relation with other norms of this law, as well as specifics of legal regulation of respective public relations. Under Article 1 of the Law on Hunting, the purpose of this law is to set forth public relations linked to the protection of huntable animals existing in the territory of the Republic of Lithuania and their rational use. Huntable animals as a part of wildlife, is one of the natural resources protected by law, as it is a part of a continuous ecological system. Wild animals, as a part of environment, are subject to the general principles of environmental protection: environmental protection is a concern and duty of the state and every citizen; public and private interests must be aimed at improving the quality of environment; reduction of harmful influence upon environment; rational and complex use of natural resources. In the explanations of the representatives of the party concerned one specifies that wild animals that exist in freedom belong to the state by the ownership right. Alongside, it is said that wildlife as a national property belongs to all the citizens of this country, i.e. the society, and the state administers natural resources, uses them and disposes of them while paying heed to the interests of the society and according to its commission. The representatives of the party concerned have stressed that under the Law on Hunting the owner of private land is not only informed about the formation of a hunting plot unit, but he may also prohibit hunting on the land owned by him, if agricultural crops or forest will become under threat during hunting. In the opinion of the representatives of the Seimas, the content of the notion damage to a forest may be understood quit widely, and the owner of the forest (land lot), while protecting his ownership not only from a negative material effect, but from any negative effect on the forest (for example, destruction of biological variety) as well, has the right to prohibit hunting. The representatives of the party concerned state that this is proven by the practise of application of Paragraph 2 of Article 13 of the Law on Hunting, which has showed that all the requirements of the

5 5 owners to prohibit hunting in their land, whatever were the motives of such requirements, were granted when forming hunting plot units. According to the representatives of the party concerned, the restrictions on ownership rights, established by the impugned norms of the Law on Hunting, are determined by the national environmental protection policy and its aims. The legislature consolidated certain restrictions on the rights of owners of land lots in Item 2 of Paragraph 2 of Article 7 and Paragraph 2 of Article 13 of the Law on Hunting while taking account of the interest of the entire society (rational use of wild animals). Therefore, in the opinion of the representatives of the party concerned, these provisions of the law are not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution. In the opinion of the representatives of the party concerned, Paragraph 7 of Article 18 of the Law on Hunting is not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution either, as it consolidates the principle of relief of civil liability originating from actions of the aggrieved person. It is noted also in the explanations of the representatives of the party concerned that the purpose of formation of a hunting plot unit is to ensure the rational management of population of huntable animals, their sufficient protection, as well as proper and safe hunt. Territorial administration of populations of huntable animals and their treasured use is possible only when hunting plot units coincide with the territory of natural migration of these animals. Therefore, the larger territory is covered by a hunting plot unit, the more rational is the management of the populations of huntable animals. In the opinion of the representatives of the party concerned, the minimum size of a hunting plot unit established in Paragraph 1 of Article 8 of the Law on Hunting in no way restricts the initiative of private business. Alongside, the representatives of the Seimas noted that the freedom of a person s economic activity is not absolute and that the state regulates economic activity by coordinating private and public interests. In the opinion of the representatives of the party concerned, the impugned provision of Paragraph 1 of Article 8 of the Law on Hunting is not in conflict with Paragraph 1 of Article 46 of the Constitution. IV In the course of the preparation of the case for the judicial hearing, written explanations were received from A. Kundrotas, the Minister, and A. Vasiliauskas, the Vice Minister of Environment of the Republic of Lithuania, I. Jarukaitis, the Deputy Director General of the European Law Department under the Ministry of Justice of the Republic of Lithuania, Assoc. Prof. V. Pakalniškis, the Head of the Civil and Commercial Law Department at the Faculty of Law of Mykolas Romeris University, and Assoc. Prof. A. Taminskas who works at the Civil Law and Civil Procedure Department at the Faculty of Law of Vilnius University. Moreover, official letters were

6 6 received from the Council of the Lithuanian Hunters and Fishers Society, J. Juozapaitis, the President of the Board of the Pasvalys Unit of the Lithuanian Hunters and Fishers Society, S. Mizaras, the President of the Board of the Forest Owners Association of Lithuania, R. A. Valiulis, the President of the Private Hunting Plots Owners Association of Lithuania, and A. Gaižutis, the President of the Board of the Forest Owners Association of Lithuania, and a joint letter of S. Mizaras, the President of the Board of the Forest Owners Association of Lithuania, A. Venskūnienė, the President of the Land Owners Union of Lithuania, and A. Valiulis, the President of the Private Hunting Plots Owners Association of Lithuania. V 1. At the Constitutional Court s hearing the representatives of the group of members of the Seimas, the petitioner, who were G. Steponavičius and R. Šukys, reiterated the arguments set forth in the petition of the petitioner and submitted additional explanations concerning the arguments of the petitioner. 2. At the Constitutional Court s hearing the representatives of the Seimas, the party concerned, who were N. Azguridienė and D. Karvelis, reiterated the arguments set forth in the written explanations. 3. At the Constitutional Court s hearing the witnesses, who were A. A. Brukas, E. Dainauskas, A. Mickūnas, K. Šiaulys, R. A. Valiulis, and J. Vyšniauskas were questioned. 4. At the Constitutional Court s hearing, the following experts took the stand: L. Budrys, the Director of the Nature Protection Department at the Ministry of Environment, A. Klimavičius, the head of the Division for the Strategy of Protected Territories of the Nature Protection Department at the Ministry of Environment, and V. Vaičiūnas, the Director of the Forests Department at the Ministry of Environment. The Constitutional Court holds that: I On 20 June 2002, the Seimas adopted the Law on Hunting which became effective on 1 October 2002 (Paragraph 1 of Article 21 of the Law on Hunting), save Paragraphs 1, 2, and 6 of Article 8, and Item 3 of Paragraph 1 of Article 11, which became effective on 1 April 2003 (Paragraph 3 of Article 21 of the Law on Hunting), as well as Paragraph 3 of Article 15 and Paragraph 8 of Article 14, which became effective on 1 April 2004 (Paragraph 4 of Article 21 of the Law on Hunting). It was established in Paragraph 2 of Article 21 of the Law on Hunting that Article 6 of this law becomes effective after the adoption of the Law on Amending the Law on Taxes on National Natural Resources. On 19 September 2002, the Seimas adopted the Republic of

7 7 Lithuania s Law on Amending and Supplementing Articles 3, 4, 6, 7, and 11 of the Law on Taxes on National Natural Resources, which became effective on 1 January Thus, the date of commencement of application of Article 6 of the Law on Hunting is 1 January On 10 June 2003, the Seimas adopted the Law on Amending Articles 6, 12, and 18 of the Republic of Lithuania s Law on Hunting, by which it amended Paragraph 3 of Article 6, Item 4 of Paragraph 1 of Article 12, and Paragraph 4 of Article 18 of the Law on Hunting (wording of 20 June 2002) and set them forth in a new wording. 2. The petitioner requests an investigation into whether: the provision It shall be prohibited to hunt < > in the land lots located in hunting plots, if their owners have prohibited hunting therein upon the procedure established in Paragraph 2 of Article 13 of the Law of Paragraph 2 of Article 7 of the Law on Hunting is not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution; the provision A hunting plot unit must comprise at least 1000 ha of continuous hunting area, save the cases where smaller hunting plot units are established for scientific and education purposes upon the proposal of the Ministry of Environment, or where such units are established in the territories of fishery ponds upon the proposal of the Ministry of Agriculture of Paragraph 1 of Article 8 of the Law on Hunting is not in conflict with Paragraph 1 of Article 46 of the Constitution; the provision The owner of a private land lot, whose land is intended to be assigned to a hunting plot unit according to the procedure established in Article 8 of this Law, shall have the right to prohibit hunting in the land owned by him, if agricultural crops or forest will suffer damage during the hunting of Paragraph 2 of Article 13 of the Law on Hunting is not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution; the provision The damage inflicted by huntable animals shall not be recovered, if it is made in the land lots whose owner has prohibited hunting upon the procedure established in Paragraph 2 of Article 13 of the Law of Paragraph 7 of Article 18 of the Law on Hunting is not in conflict with Paragraphs 1 and 2 of Article 23 of the Constitution. In the impugned provisions of the Law on Hunting, one entrenched certain prohibitions on hunting (Paragraph 2 of Article 7 and Paragraph 2 of Article 13), regulated the size of hunting plot units (Paragraph 1 of Article 8), and prescribed that the damage inflicted by huntable animals will not be recovered (Paragraph 7 of Article 18). 3. When deciding, according to the petition of the petitioner, whether the impugned provisions of the Law on Hunting (its articles or paragraphs) are not in conflict with the Constitution, one should note that, as it is specified in Article 1 of the Law on Hunting, the purpose of this law is to set forth public relations linked to the protection of huntable animals located in the territory of the Republic of Lithuania and their rational use. The Law on Hunting regulates the

8 8 ownership right to huntable animals, the right of use of the resources of huntable animals, formation of hunting plot units and the procedure of the granting of the right to use the huntable animals resources in this territory, grating the right to hunt, liability for violations of this law, recovery of damage inflicted by huntable animals, etc. It should be held that by the Law on Hunting one strives to systemically regulate relations of hunting and those linked therewith, and to create a legal basis for detailing and specification of legal regulation of these relations in substatutory legal acts. Thus, the impugned provisions of the Law on Hunting regarding the prohibition on hunting, the size of hunting plot units and non-recovery of damage inflicted by huntable animals, may not be systemically unrelated to other provisions of this law which regulate in various aspects the named public relations, i.e. relations of hunting and those linked therewith. Therefore, one must find out what is the connection of the impugned provisions of the Law on Hunting with other provisions of this law and other laws regulating public relations that are directly or indirectly linked, inter alia, to the prohibitions on hunting, sizes of hunting plot units and recovery or non-recovery of damage inflicted by huntable animals. Moreover, one must find out the content of the provisions of the Law on Hunting which are aimed at ensuring the transition from relations of hunting and those linked therewith, based on the former legal regulation, to relations of hunting and those linked therewith, based on the legal regulation established by the Law on Hunting, and assess its compliance with the Constitution. 4. The content of the impugned provisions should be construed within the context of the legal regulation of relations of hunting and those linked therewith, which is established in other laws as well. It should be noted that certain relations of hunting and those linked therewith may also be regulated to some extent by substatutory legal act. However, this does not mean that the provisions of the Law on Hunting may be construed according to the way, in which particular notions used therein are defined in substatutory legal acts (inter alia, government resolutions), or the way, in which particular legal regulation of relations of hunting and those linked therewith, established in the Law on Hunting, is detailed or specified in substatutory legal acts (inter alia, government resolutions). Quite to the contrary, pursuant to the Constitution, legal regulation established in all substatutory legal acts (thus, government resolutions inclusive) regulating the relations of hunting and those linked therewith must be based on the one established in the laws. 5. Within the context of the case of constitutional justice at issue, it should be noted that in the Law on Hunting the hunting is defined as protection of huntable animals and their rational use in accordance with this Law, other legal acts regulating the hunting, and by paying heed to the ecological conditions of the hunting plots, ethical norms and traditions of the national hunting culture (Paragraph 8 of Article 2).

9 9 6. Within the context of the case of constitutional justice at issue, it is important to find out also what authentic hunting tradition has developed in Lithuania, how this tradition was reflected in legal acts, what was the development of legal regulation of hunting relations prior to the adoption of the Law on Hunting, the compliance of provisions of which with the Constitution is impugned, and to find out whether the legal regulation established in the Law on Hunting continues the tradition of hunting which exists in Lithuania or is remote from it. II In Lithuania, the origins of legal regulation of hunting relations and those linked therewith have been traced as far back as the times of the Grand Duchy of Lithuania. Provisions designated for hunting, its arrangement, inter alia, the formation and maintenance of hunting areas, are found in the Kazimieras Statute-book (1468), the First (1529), Second (1566) and Third (1588) Lithuanian Statutes, the Valakų Law (1557), the Royal Woods Ordinance (1639). The legal acts of the Grand Duchy of Lithuania treated hunting as an exclusive right of feudal lords, which was inseparable from their ownership right to land: the feudal lords could make use of this right on their land unrestricted. 2. After the third partition of the Lithuanian and Polish Commonwealth, which took place in 1795, hunting relations and those linked therewith were regulated by the Third Lithuanian Statute (till 1840), and later by means of laws of the Russian Empire. According to the laws of the Russian Empire, which were effective in Lithuania at that time, hunting was grouped into big one (hunting of big animals in large woods and state forests) and small one (hunting of small animals and birds in the fields, bushes and groves). The hunting right on private plots of land was linked with the ownership right to land. On the other hand, the said laws consolidated an opportunity to transfer the right of hunting to other persons, thus, this right was already treated also as a separate matter of transactions. It is also worth noticing that the minimum size of the hunting plot unit was established it was permitted to hunt on the plot of no less than 150 margas (approximately 90 ha). 3. After the restoration of the independent state on 16 February 1918, in Lithuania acts of the Russian Empire were effective for some time, including those that regulated hunting relations. The first legal act of the restored State of Lithuania, which was designated for regulation of hunting relations and those linked therewith, was Temporary Rules of Hunting, a substatutory legal act, a circular note to officials of the Ministry of Agriculture and State-owned Property, which was announced by the Vice-minister of Agriculture and State-owned Property on 15 June On 3 April 1925, the Seimas adopted the Law on Hunting. The President of the Republic promulgated this law on 9 May The Law on Hunting provided for the basic principles regarding regulation of hunting relations. According to this law, the right to hunt on a certain hunting plot was vested in the manager of the plot in question (Item 1 1), while it was permitted to

10 10 hunt in another s plot of land only after receiving a written permission of the manager of the plot of land (Item 2 1). It was also prescribed that huntable animals and birds injured by a shot that entered into another hunting plot was property of the manager of the plot in question ( 3). The notion manager included both the owners and other lawful managers. On the other hand, hunting was limited: the law prohibited the hunting of elks, deer, hind, beavers, wisents and offspring of these animals as well as certain birds ( 11). 4. On 24 October 1935, the President of the Republic promulgated a new Law on Hunting (certain provisions whereof were amended and supplemented by the 1936 amendment to the Law on Hunting). According to this law, the care for the wildlife and the right of hunting on a certain land was vested in the manager of this land (Article 1); huntable animals and birds injured by a shot or wounded in other manner in the course of hunting (save certain exceptions separately pointed out) that entered from the hunting plot into another s land would become property of the manager of the land in question (Article 5). The same law also established the size of hunting plots: no less than 100 ha plot of land constituted a hunting farm, while its owner or lawful manager was permitted to hunt in that farm either by himself or to transfer this right to another person (Item 1 of Article 7); if two or more land owners agreed, if, thus, the common and continuous plot of land comprised no less than 100 ha, this common plot could be registered with a respective county chief as an individual hunting farm unit (Item 2 of Article 7). Hunting units could also be formed from stateowned lands, forests and water bodies (Article 8). The granting of the right to hunt was regulated in this law in this way: anyone who wished to hunt had to have a hunting certificate issued by the county chief, which granted the right to keep a hunting rifle (Article 9); a person had the right to receive a hunting certificate, who had no less than 100 ha of territory, which was either his own, or rented for hunting, or otherwise acquired for the right of hunting, as well as owners of common management, members of hunting societies, circles and other hunting collectives, if the owners of such plots, societies, circles, and collectives had acquired the right to hunt in a plot of territory of no less than 100 ha for each member (Article 10). It was prohibited to hunt beavers, elks, deer, lynxes, hind (offspring inclusive) and certain birds all year round (Article 47). Hunting in sanctuaries (i.e. reservations) was prohibited (Article 57). The provisions of the 24 October 1935 Law on Hunting (with subsequent amendments and supplements) were detailed and particularised in the Rules of Enforcement of the Law on Hunting, announced by the Minister of Agriculture on 14 July Summing up, it should be held that till 1940 the tradition of legal regulation of hunting in Lithuania and relations linked therewith was characteristic of treatment of hunting as one of the means of guaranteeing protection and rational use of wildlife and as a pastime activity. Hunting was an activity regulated by legal acts and controlled by the state (its institutions). Hunting activity was

11 11 limited. Such limitations included, inter alia, the prohibitions on hunting certain animals all year round or at a certain time (from a certain date specified in the law till another date specified in the law), as well as in sanctuaries (i.e. reservations), as well as the establishment of the minimum hunting plot (100 ha). The laws of Lithuania limited the opportunity to freely engage in hunting activity also in the aspect that the right of hunting on a certain plot (lot) of land was vested in the owner or lawful manager of this plot (lot) of land: without consent of the land owner or the lawful manager of the land hunting in the land that belonged to them was prohibited. Thus, the hunting right on a certain plot (lot) of land was linked with the right of ownership of the owners to corresponding land, forests and water bodies. The owner (manager) could transfer this right to other persons. The owners themselves could form hunting plots from their own land, while state institutions could form them only from state-owned lands, forests and water bodies. 6. In this context, it needs to be noted that upon restoration of the independent State of Lithuania in 1918, the basics of legal regulation of hunting relations and those linked therewith were established in legal acts which had the force of a law, save a short period from 1918 till 1925, when such legal acts bearing the force of a law that had to regulate the said relations had not been issued yet. III 1. In 1940, Lithuania was occupied, annexed and incorporated into another state the Soviet Union. The occupation government nationalised and in other unlawful manner disseized land, forests and parks, water bodies, a great many of other objects of private ownership, thus denying the innate human right itself to private ownership. In the Soviet legal acts land, forests and parks, water bodies (both those that used to belong to the State of Lithuania and those that until then had belonged to private persons by right of ownership) were treated as exclusive property of the state (as property of not Lithuania, but of the Soviet Union, i.e. so-called common property of the people ). The said objects could be given only to be used to other subjects state-owned, cooperative and public enterprises, establishments and organisations. By legal acts of the Soviet Union all objects of natural environment were nationalised, wildlife inclusive. During the Soviet years the legal regulation of organisation of land exploitation, land use, organisation of forest exploitation, organisation of hunting, conservation of nature and protection of the environment in general, and of all other social relations linked with protection and use of natural environment was based on nationalisation of all land, all forests and parks, all water bodies, all of other objects of natural environment. 2. On 22 April 1959, in Lithuania under the Soviet rule the Law on Protection of Nature and on 19 June 1981 the Law on Wildlife Protection and Use were adopted. These laws regulated relations linked with hunting only in certain aspects. The relations of arrangement of hunting and

12 12 management of hunting were mostly regulated by various substatutory legal acts. The last legal act of the Soviet of Ministers of Lithuania under the Soviet rule was the Regulations of the Hunting Management on the Territory of the Lithuanian SSR [Soviet Socialist Republic] as confirmed by the Decision (No. 276) On the Regulations of the Hunting Management on the Territory of the Lithuanian SSR of 30 November 1989 adopted by the Soviet of Ministers of the Lithuanian SSR, which were effective till the restoration of the independent State of Lithuania in 1990 and for some time after that. 3. It was established in the laws and substatutory legal acts of Lithuania under the Soviet rule that wildlife (thus, also animals that exist in freedom) is sate-owned property, the common property of the entire Soviet people. Animals that existed in freedom constituted the state hunting fund. All plots of land, forests and water bodies in which animals and birds could live and which could be used for hunting were recognised hunting plots. All hunting plots used to be at the command of corresponding state institutions, which would adopt decisions regarding assigning or leasing hunting plots to state establishments or enterprises (e.g., establishments of science and education, forestry enterprises), or public, as a rule, hunters and fishers organisations (societies), which, in their turn, used to assign or lease the hunting plots assign to them to circles of hunters. It must be emphasised that under the legal acts of the period users of hunting plots could only be state establishments and enterprises, or circles of hunters. In this context it needs to be noted that during the years of the Soviet rule legal acts used to consolidate a duty of land users to lease hunting plots to the assigned circles of hunters and other users. On the other hand, in addition to the so-called assigned hunting plots, hunting plots were picked out also in sanctuaries (for a certain period also in reservations), as well as in state hunting farms; these hunting plots were managed according to regulations as confirmed by respective state establishments. Minimum sizes of hunting plots were not established. During the years of the Soviet rule legal acts used for some time to provide for the so-called hunting plots of common use, in which all hunters belonging to hunting societies had the right to hunt. However, in the middle of the fifties of the 20th century there was transition from hunting plots of common use to the so-called assigned hunting farms, which, as mentioned before, used to be assigned or leased to corresponding state establishments or public organisations, as a rule, those of hunters and fishers. 4. Summing up, it needs to be held that the authentic Lithuanian hunting tradition was denied by legal acts during the Soviet years in the aspect that the legal regulation of hunting relations was based on the belonging of all land, all forests and parks, all water bodies, all other objects of natural environment, including wild animals that existed in freedom, solely to the state.

13 13 The Lithuanian hunting tradition was denied by legal acts during the Soviet years also in the aspect that hunting plots were begun to be distributed in a centralised manner: institutions of public authority would decide that certain territories had to be used as hunting plots and would assign them to state establishments or enterprises (e.g., establishments of science and education, forestry enterprises) or public organisations so that the latter could assign or lease these hunting plots to circles of hunters, while users of land had to lease the plots assigned to them to the assigned circles of hunters and other users. Neither natural persons nor most of legal persons could independently use hunting plots, since only state establishments and enterprises or circles of hunters could be users of hunting plots. On the other hand, during the Soviet years the legal acts that regulated hunting relations and those linked therewith, like the legal acts of the State of Lithuania that had been in effect before, treated hunting as one of the means to guarantee the protection of wild animals and their rational use, and, alongside, as a pastime activity. IV 1. On 11 March 1990, the Supreme Council of the Republic of Lithuania adopted the Act of the Supreme Council of the Republic of Lithuania On the Restoration of the Independent State of Lithuania. In this Act it was established, inter alia, that, in Lithuania, no constitution of any other state was effective. On the same day the Supreme Council adopted the Republic of Lithuania s Law On the Provisional Basic Law of the Republic of Lithuania by Article 2 whereof it confirmed the Provisional Basic Law of the Republic of Lithuania, which was the provisional constitution of the independent State of Lithuania. On the basis of the Provisional Basic Law one started creating the national legal system. One of peculiarities of the newly created authentic national legal system of Lithuania and an important precondition for its further development was the fact that the institute of private ownership was restored in the legal system of this country. In this context it needs to be noted that Paragraph 1 of Article 44 of the Provisional Basic Law used to provide that the economic system of Lithuania shall be based on the property of the Republic of Lithuania, which shall consist of the private property of its citizens, the property of groups of citizens (collectives), and state property. Paragraph 1 of Article 45 of the Provisional Basic Law used to provide that the land, its mineral resources, inland and territorial waters, forests, flora and fauna, and other natural resources shall be the national wealth of Lithuania and the exclusive property of the Republic of Lithuania, also that other property belonging exclusively to the Republic of Lithuania may also be owned by citizens of Lithuania and their groups (collectives). It should be held that the formula exclusive property of the Republic of Lithuania of Paragraph 1 of Article 45 of the Provisional Basic Law should be construed while one takes account

14 14 of the tasks for the just restored State of Lithuania. By the said provisions of Paragraph 1 of Article 45 of the Provisional Basic Law it was first of all sought to consolidate that certain objects as national property of Lithuania may belong as private ownership only to a single state, the Republic of Lithuania, and that it may not belong to any other states; this textual form was chosen in order to stress that the said objects cannot be treated as belonging to the Soviet Union. Thus, especially while one bears in mind that under Paragraph 1 of Article 45 of the Provisional Basic Law other property objects belonging exclusively to the Republic of Lithuania may also be owned by citizens of Lithuania and their groups (collectives), it is impossible to attach the same meaning to the formula exclusive property of the Republic of Lithuania that is employed in the provision the land, its mineral resources, inland and territorial waters, forests, flora and fauna, and other natural resources shall be the national wealth of Lithuania and the exclusive property of the Republic of Lithuania as that of virtually analogous formulas in regard of their textual form which were used in the provision The right of exclusive ownership of the subterranean, as well as internal waters, forests, parks, roads, historical, archaeological and cultural objects of State importance shall belong to the Republic of Lithuania of Paragraph 3 (wording of 25 October 1992) of Article 47 of the Constitution, which was adopted subsequently (after actual consolidation of the independence of the State of Lithuania and its international recognition), in the provision The right of exclusive ownership of the subterranean, as well as internal waters, forests, parks, roads, historical, archaeological and cultural objects of State importance shall belong to the Republic of Lithuania of Paragraph 4 (wording of 20 June 1996) of Article 47 of the Constitution, and in the provision The right of exclusive ownership of the subterranean, as well as internal waters, forests, parks, roads, historical, archaeological and cultural objects of State importance shall belong to the Republic of Lithuania of Paragraph 1 (wording of 23 January 2003) of Article 47 of the Constitution which is effective at present. Taking account of this, it should be held that by Paragraph 1 of Article 45 of the Provisional Basic Law the land, its mineral resources, inland and territorial waters, forests, flora and fauna, and other natural resources (unlike the subterranean) were not nationalised it merely confirmed the returning of the said objects from the jurisdiction of another state, the Soviet Union, which was based on the provision of the Act On the Restoration of the Independent State of Lithuania that in Lithuania no constitution of any other state was effective. 2. In the context of the constitutional justice case at issue, it should also be mentioned that the Provisional Basic Law established the bases of the legal regulation of relations of use and protection of objects of natural environment, fauna inclusive: Article 42 of the Provisional Basic Law established a duty of citizens of Lithuania to protect nature, to preserve its treasures and build a healthy natural environment.

15 15 3. Under Article 3 of the Law On the Provisional Basic Law of the Republic of Lithuania, in the Republic of Lithuania the laws and other legal acts of Lithuania which had been in force and which were not in conflict with the Provisional Basic Law continued to be effective. Upon restoration of the independent State of Lithuania, there occurred a legal situation where legal acts that had been issued prior to the restoration of the independent State of Lithuania were in effect. In this context, it should be mentioned that the legal acts regulating hunting relations remained in force, the Law on Wildlife Protection and Use (adopted as far back as 19 June 1981) inclusive in which fauna (thus, also wild animals that existed in freedom) were treated as state property (Paragraph 1 of Article 3). Alongside, substatutory legal acts were being issued, which were designed for regulation of hunting relations and those linked therewith. 4. On 30 April 1991, the Government adopted the Resolution (No. 166) On Hunting Management in the Republic of Lithuania, by which, inter alia, the Provisional Regulations for Hunting Management in the Republic of Lithuania were confirmed. It was established in the said regulations that huntable animals and birds and other wild animals and birds are state property (Item 5), that managers and owners of land lease hunting plots to hunters organisations and other users (Item 6), also, that it is prohibited to hunt in lands of the owner without his consent (Item 6). Under Item 8 of the said regulations, in state forests the unit of organisation of a hunting farm was the territory of a forester s district, while in an agro-landscape zone such a unit was the whole of fields, groves and shrubbery the total area of which was no less than 200 ha; the lease of smaller plots of land was decided by the managers and owners of the land together with respective forest offices. Damage inflicted by wild animals had to be repaid by users of the hunting plots who were disposing of the means received from hunting production (Item 13). 5. By the Order (No. 6/35) On Hunting Plot Lease Agreements of 22 January 1992 issued by the Ministry of Forestry of the Republic of Lithuania and the Ministry of Agriculture of the Republic of Lithuania the form of agreements on hunting plot lease (according to the attached example) was confirmed. It needs to be noted that the said order (and the form of agreements on hunting plot lease) did not contain any provisions which would not permit the owner to use respective land lots (hunting plots) for other, not hunting purposes, inter alia, to lease these lots (hunting plots) to other persons so that they could use these lots (hunting plots) not for hunting, but other purposes. Therefore, although the said so-called agreement on hunting plot lease, according to which the owner (manager) permits another person to hunt on the land lots (hunting plots) that belong to him by right of ownership (which are managed by him) are referred to as lease agreements, they, by their legal content, have never been, nor are identical to lease agreements on land or other property

16 16 which are provided for in civil laws. In their legal content the said agreements on hunting plot lease are agreements on granting the right to hunt in certain hunting plots to a certain person; they treat the right to hunt as a separate matter of transaction. 6. At the time when the Lithuanian national legal system was being created and one also began to reform the legal regulation of hunting relations, the restitution process was taking place during which the existing real property that had been nationalised and disseized in other unlawful manner by the occupation government was being returned to the former owners. Recognising continuity of ownership rights and their restoration, on 15 November 1990 the Supreme Council adopted a principle decision and confirmed these provisions: continuity of ownership rights of citizens of Lithuania is recognised; citizens of Lithuania have the right, within the limits and under procedure defined by law, to retrieve in kind the property that belonged to them, while in the absence of the possibility of retrieving it to receive compensation. On 18 June 1991, the Supreme Council adopted the Republic of Lithuania s Law On the Procedure and Conditions of Restoration of Citizens Rights of Ownership to the Existing Real Property, which established to what persons, what property and under what conditions and procedure the rights of ownership had to be restored. According to this law (with subsequent amendments and supplements), limited restitution was carried out the former owners were being restored their rights of ownership to land, forests and water bodies. The restitution process is still going on; it is regulated by the Republic of Lithuania s Law on the Restoration of Citizens Rights of Ownership to the Existing Real Property (with subsequent amendments and supplements), which was adopted by the Seimas on 1 July 1997, and which replaced the said Law On the Procedure and Conditions of Restoration of Citizens Rights of Ownership to the Existing Real Property (with subsequent amendments and supplements) which was adopted by the Supreme Council on 18 June The land reform was also launched and carried out in parallel. On 25 July 1991, the Supreme Council adopted the Republic of Lithuania s Law on Land Reform which (with subsequent amendments and supplements) regulated the relations of land ownership and procedure of land reform. The goal of the launched land reform was to implement the right of Lithuanian citizens to land ownership by returning the expropriated land in accordance with the procedures and terms established by law, and by buying land, as well as to create legal, organisational, and economic preconditions for the development of agricultural production by freely chosen forms of farming (Article 2 of the Law on Land Reform). In Paragraph 2 of Article 5 of the Law on Land Reform it was established, inter alia, that during the implementation of land reform, private and state ownership land-use systems shall be formed. The ways of acquisition of land were restoration (restitution) of the right of ownership and purchase (Paragraph 2 of Article 6 of the Law on Land Reform). Land reform was related with the process of the privatisation of state and municipal

17 17 property, including land, forests and water bodies. Laws as well as substatutory acts were passed providing for an opportunity for citizens to privatise state and municipal property, as well as property formerly held by Soviet agricultural enterprises (collective and state farms). In the context of the constitutional justice case at issue, it needs to be noted that in itself neither the land reform nor the restitution process changed hunting relations and those linked therewith, however, after opportunities had been created for the owners to restore their rights to the existing real property (including land, forests and water bodies), also opportunities for citizens to buy land, forests and water bodies, the legal regulation of hunting relations and those linked therewith had to be changed in a corresponding manner, too. In this respect, land reform and the privatisation process related with it, as well as the restitution process, could not avoid influencing the restructuring of hunting relations and those linked therewith, thus, also the legal regulation of these relations. V 1. The Constitution of the Republic of Lithuania was adopted by referendum which took place on 25 October It went into effect on 2 November Under Article 1 of the Law of the Republic of Lithuania On the Procedure of Entry into Effect of the Constitution of the Republic of Lithuania, which was adopted by the Nation by the 25 October 1992 referendum together with the Constitution of the Republic of Lithuania and which is a constituent part of the Constitution, upon entry into effect of the Constitution, the Provisional Basic Law became null and void. From then on the Lithuanian national legal system had to be created and developed only on the grounds of the Constitution. 2. In the context of the constitutional justice case at issue it is worth mentioning that in Article 23 of the Constitution the imperatives of inviolability of property and its protection are established. Private ownership as one of the bases of the national economy is consolidated in Paragraph 1 of Article 46 of the Constitution. Article 47 of the Constitution has established, inter alia, the objects that belong to the Republic of Lithuania under exclusive right of ownership: under Paragraph 3 (wording of 25 October 1992) of this article, these objects were the subterranean, as well as internal waters, forests, parks, roads, historical, archaeological and cultural objects of state importance. The same objects were indicated in Paragraph 4 (wording of 20 June 1996) of Article 47 of the Constitution; they are indicated also in Paragraph 1 (wording of 23 January 2003) of Article 47 of the Constitution which is in effect at present. It should be held that wildlife has never been nor is mentioned by the Constitution to be among the objects that belong to the Republic of Lithuania under the exclusive right of ownership. The Constitution also provides for the grounds of the legal regulation of natural environment, of legal relations of use and protection of its individual objects. Under Article 54 of