Case No. 16/08
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
RULING
ON THE COMPLIANCE OF PARAGRAPH 3 (WORDING OF 23 JANUARY
2003) OF ARTICLE 23 OF THE REPUBLIC OF LITHUANIA LAW ON
THE NOTARY OFFICE WITH THE CONSTITUTION OF THE REPUBLIC
OF LITHUANIA
22 March 2010
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Toma Birmontienė, Pranas Kuconis, Kęstutis
Lapinskas, Zenonas Namavičius, Ramutė Ruškytė, Egidijus Šileikis,
Algirdas Taminskas, and Romualdas Kęstutis Urbaitis,
with the secretary of the hearingDaiva Pitrėnaitė,
in the presence of the representatives of the Seimas of the
Republic of Lithuania, the party concerned, who were Julius
Sabatauskas, a Member of the Seimas, and Daina Petrauskaitė, the
Head of the Civil Law Unit of the Legal Department of the Office
of the Seimas,
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, in its public
hearing on 16 March 2010 heard constitutional justice case No.
16/08 subsequent to the petition (No. 1B-17/2008) of the Vilnius
Regional Administrative Court, the petitioner, requesting to
investigate whether Paragraph 3 (wording of 23 January 2003) of
Article 23 of the Republic of Lithuania Law on the Notary Office
is not in conflict with the constitutional principle of a state
under the rule of law.
The Constitutional Court
has established:
I
The Vilnius Regional Administrative Court, the petitioner,
was investigating an administrative case. By its ruling, the
court suspended the consideration of the case and applied to the
Constitutional Court with a petition (No. 1B-17/2008) requesting
to investigate whether Paragraph 3 (wording of 23 January 2003)
of Article 23 of the Law on the Notary Office is not in conflict
with the constitutional principle of a state under the rule of
law.
II
The petition of the Vilnius Regional Administrative Court,
the petitioner, is substantiated by the following arguments.
Under Item 8 of Paragraph 1 of Article 23 of the Law on the
Notary Office, the notary powers shall be terminated when the
notary reaches the age of 65. Paragraph 3 (wording of 23 January
2003) of Article 23 of the Law on the Notary Office provides that
the notary powers may be extended by the order of the Minister of
Justice upon the presentation of the Chamber of Notaries until
the notary reaches the age of 70. The legal acts do not establish
any criteria by following which it would be possible to decide
whether to extend the notary powers. The petitioner has doubts
whether such legal regulation when the legal acts provide for the
possibility to extend the notary powers upon their termination
and do not establish any criteria by following which it would be
possible to decide whether to extend the notary powers does not
create preconditions for other persons to try to influence the
notary directly or indirectly.
Such legal regulation, in the opinion of the petitioner, is
to be assessed as enabling someone to induce the notary in his
activities to violate the principle of the independence of the
notary. Thus, preconditions are created for the state
institutionthe Ministry of Justiceto influence the activities
of the notary, as a person who is authorised by the state, by
extending or not extending his powers.
According to the petitioner, the aforementioned legal
regulation is incompatible with the constitutional principle of a
state under the rule of law, whereby, as it has been held by the
Constitutional Court more than once, all institutions
implementing state power as well as other state institutions must
act on the grounds of law and in compliance with law, human
rights and freedoms must be secured, the Constitution has the
supreme legal power, and all legal acts must be in compliance
with the Constitution.
III
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from a representative of the Seimas, the party concerned, who was
D. Petrauskaitė, the Head of the Civil Law Unit of the Legal
Department of the Office of the Seimas, wherein it is maintained
that Paragraph 3 (wording of 23 January 2003) of Article 23 of
the Law on the Notary Office is not in conflict with the
Constitution. The position of the representative of the party
concerned is substantiated by the following arguments.
According to Lithuanian law, the status of the notary is
dual. On the one hand, the notary is a person authorised by the
state, whose activities are related with performance of public
functions. On the other hand, the notary is engaged in
professional activityhe provides legal services. However,
differently from other persons who provide services, the notary
has exceptional rights to render particular services (the laws
establish transactions which must be authenticated under notary
procedure, also, the notary certifies legal facts specified in
the law, issues certificates of the right of inheritance etc.).
The size of the salary paid for the services rendered by the
notary is established by the state, i.e. the tariffs of services
rendered by the notary are fixed.
According to the representative of the party concerned, the
notary office, as a legal institute, and the notary, as a person
who is authorised by the state and who renders legal services, is
not an institution of authority in the sense of Article 5 of the
Constitution of the Republic of Lithuania. The independence of
the notary ought to be construed by taking account of the legal
status of the notary as well as aims of the notary office as a
legal institute. The laws establish the duty of not only
notaries, but also representatives of other liberal professions
to observe the principles of independence and objectivity. One of
the guarantees of the independence of professional activity is
the procedure of permission to engage in professional activities.
As a rule, persons are allowed to engage in professional
activities providing they meet requirements established by the
law. The laws do not establish any term for engagement in
professional activities, i.e. a person acquires the right to
engage in professional activity on a termless basis. The right to
engage in professional activity expires only on the grounds laid
down in the legal acts. Notaries and bailiffs alone acquire the
right to engage in professional activity by taking part in a
public competition and it is only their right to engage in
professional activity that is limited on the grounds of age. The
notary powers expire when the notary reaches the age of 65 and
they may be extended until the notary reaches the age of 70. The
same legal regulation is applicable to bailiffs. The legal
regulation with regard to expiration of powers of notaries and
bailiffs is analogous to the legal regulation concerning
dismissal of state servants and state officials from office,
since both notaries and bailiffs act in rendering services as
persons authorised by the state.
The representative of the party concerned maintains that the
requirements for the notary are established in Article 3 of the
Law on the Notary Office, whereas the grounds for expiration of
the notary powers are specified in Article 23 of this law.
Therefore, according to the representative of the party
concerned, the Chamber of Notaries and the Minister of Justice,
when deciding on the question of extension of notary powers,
should follow the criteria provided for in the aforesaid
articles. The notary powers may not be extended if a person no
longer meets the requirements set for the notary (e.g., due to
illness). According to the representative of the party concerned,
the disputed provision of the Law on the Notary Office must be
applied together with other provisions of the said law, which set
the requirements for the notary. Both the Chamber of Notaries and
the Minister of Justice, when deciding on the question of
extension of notary powers, are bound by the principle of
legitimate expectations, therefore, the refusal to extend the
notary powers ought to be reasoned by indicating what
requirements set for notaries the notary does not meet.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were received
from Eglė Račinskienė, the then Vice-minister of Justice of the
Republic of Lithuania, and Marius Stračkaitis, the President of
the Lithuanian Chamber of Notaries.
V
At the Constitutional Court hearing, D. Petrauskaitė, the
representative of the Seimas, the party concerned, virtually
reiterated the arguments set forth in the written explanations
and answered to the questions of the justices of the
Constitutional Court.
J. Sabatauskas, a Member of the Seimas, provided
explanations and answered to the questions of the justices of the
Constitutional Court.
The Constitutional Court
holds that:
1. The Vilnius Regional Administrative Court, the
petitioner, requests to investigate whether Paragraph 3 (wording
of 23 January 2003) of Article 23 of the Law on the Notary
Office, wherein it is established that the notary powers may be
extended by the order of the Minister of Justice of the Republic
of Lithuania upon the presentation of the Chamber of Notaries
until the notary reaches the age of 70, is not in conflict with
the constitutional principle of a state under the rule of law.
2. On 15 September 1992, the Supreme Council of the Republic
of Lithuania adopted the Republic of Lithuania Law on the Notary
Office, which, under Item 1 of the Supreme Council of the
Republic of Lithuania Resolution "On the Entry into Force of the
Republic of Lithuania Law on the Notary Office" of 17 September
1992, came into force on 1 December 1992.
It needs to be noted that Article 23 (wording of 15
September 1992) "Termination of Notary Activities" of the Law on
the Notary Office entrenched the provision that the notary powers
shall expire when the notary reaches the age of 65.
Neither Article 23 (wording of 15 September 1992)
"Termination of Notary Activities" of the Law on the Notary
Office nor other articles of this law provided for the
possibility to extend the notary powers.
3. It also needs to be noted that the Law on the Notary
Office has been amended and/or supplemented more than once,
however, neither Article 23 of this law, which has been amended
and supplemented by the Republic of Lithuania Law "On Amending
and Supplementing the Republic of Lithuania Law on the Notary
Office" adopted by the Seimas on 22 September 1994, the Republic
of Lithuania Law on Amending and Supplementing the Law on the
Notary Office adopted by the Seimas on 14 May 1998, and the
Republic of Lithuania Law on Supplementing Articles 3 and 23 of
the Law on the Notary Office adopted by the Seimas on 15 June
1999, nor other articles of the aforesaid law provided for the
possibility to extend the notary powers. Such legal regulation
was in force till 12 February 2003.
4. On 23 January 2003, the Seimas adopted the Republic of
Lithuania Law on Amending and Supplementing Articles 2, 3, 6, 7,
9, 10, 11, 13, 16, 17, 20, 22, 23, 25, 27, 28, 31, 32, 36, 37,
40, 41, 43, 44, 51, 53, 56, 57, 59, and 60 and the Title of
Chapter II of the Law on the Notary Office, Supplementing the Law
with Articles 6-1, 6-2, 15-1, 22-1, and 27-1 and Recognition of
Articles 58, 63, and 64 Thereof as No Longer Valid, which came
into force (with certain exceptions) on 12 February 2003.
Paragraph 4 of Article 17 of the said law supplemented Article 23
(wording of 15 June 1999) of the Law on the Notary Office with
Paragraph 3, which is disputed by the petitioner.
5. Article 23 "Expiry of Notary Powers" of the Law on the
Notary Office (wording of 23 January 2003) prescribed:
"The notary powers shall expire:
1) when the notary dies;
2) when the notary loses citizenship of the Republic of
Lithuania;
3) at the notary's own request;
4) when the notary does not meet the requirements set in
Paragraph 7 of Article 3 of this law;
5) after the court judgement, whereby the notary is
convicted for a serious or grave crime, comes into effect,
irrespective of whether the conviction has expired or, if the
notary has been convicted for another criminal deed, the
conviction has not expired;
6) when the Minister of Justice of the Republic of Lithuania
approves the proposal of the Court of Honour of Notaries to
dismiss the notary from office;
7) when, according to the results of the performance
evaluation, the notary is found not fit to perform his duties;
8) when the notary reaches the age of 65;
9) if the notary has defaulted on the payment of taxes to
the state budget of the Republic of Lithuania under procedure
established by the laws for two months in succession;
10) if the notary breached the requirements of Article 20 of
this Law;
11) if the notary has systematically failed to pay
membership dues to the Chamber of Notaries for four months in
succession;
12) If the notary has served as a regular employee of the
USSR Committee of State Security (NKVD, NKGB, MGB, KGB) to whom
the restrictions provided for in the Law 'On the Assessment of
the USSR Committee of State Security (NKVD, NKGB, MGB, KGB) and
Present Activities of the Regular Employees of This Organisation'
are applied.
The expiry of notary powers (dismissal from office) shall be
formalised by an order of the Minister of Justice of the Republic
of Lithuania.
The notary powers may be extended by an order of the
Minister of Justice of the Republic of Lithuania upon the
presentation of the Chamber of Notaries until the notary reaches
the age of 70."
In this context, it needs to be noted that, on 5 June 2007,
the Seimas adopted the Republic of Lithuania Law on Amending
Articles 3 and 23 of the Law on the Notary Office, which came
into force on 21 June 2007. The said law inter alia recognised
Item 12 of Paragraph 1 of Article 23 of the Law on the Notary
Office as no longer valid, however, the disputed Paragraph 3 of
Article 23 thereof was not amended and/or supplemented.
6. The disputed (by the petitioner) legal regulation, which
provides for the extension of notary powers, is to be construed
in the context of the legal regulation established in other
articles (parts thereof) of the Law on the Notary Office and
inter alia Article 23 thereof.
6.1. Under Article 1 (wording of 15 September 1992) of the
Law on the Notary Office, the notary office shall be the whole of
notaries who, in accordance with this law, are granted the right
to legally establish the undisputed subjective rights and legal
facts of natural and legal persons and to ensure the protection
of the legal interests of these persons and the state (Article
1).
6.2. Article 2 (wording of 23 January 2003) of the Law on
the Notary Office establishes that the notary shall be a person
authorised by the state, who performs the functions laid down in
this law, which ensure that there are no illegal transactions and
documents in civil legal relations (Paragraph 1); notaries shall
be appointed and dismissed by the Minister of Justice of the
Republic of Lithuania (Paragraph 2).
6.3. The right to hold the office of notary shall be only
granted to persons who meet requirements set out in Article 3
(wording of 23 January 2003 with subsequent amendments) of the
Law on the Notary Office. A person appointed as a notary shall
take an oath before the Minister of Justice of the Republic of
Lithuania prior to beginning his or her duties (Paragraph 1 of
Article 5 (wording of 15 September 1992 with subsequent
amendments) of the Law on the Notary Office).
6.4. In accordance with Paragraph 1 (wording of 12 June
2001) of Article 26 of the Law on the Notary Office, notaries
shall perform the following notarial acts: authentication of
transactions, issue of certificates of the right of inheritance,
issue of certificates of the property right to a part of a
married couple's common property, confirmation of the
authenticity of copies of documents and their extracts,
confirmation of the authenticity of document signatures,
confirmation of the authenticity of document translation from one
language to another, certification of the fact that a citizen is
alive and is in a definite place, acceptance for safe custody of
wills equivalent to official wills as well as personal wills,
certification of the time of presentation of documents, handing
over of applications of some legal and natural persons to other
legal and natural persons, acceptance for deposit of money,
acceptance of sea protests as well as protests of bills and
cheques, making of executive records in protested or non-
protestable bills and cheques, drawing up or certification of
documents regarding the authenticity of data submitted to the
register of legal persons and confirmation that a legal person
may be registered because the obligations under laws or the
transaction of incorporation have been fulfilled and the
circumstances provided for in laws and documents of incorporation
have arisen, certification of the conformity of documents of
incorporation to the requirements provided for by laws,
performance of other notarial acts provided for by laws.
6.5. Article 12 "The Independence of Notaries" (wording of
15 September 1992) of the Law on the Notary Office prescribes:
"Notaries shall exercise their powers without heeding the
influence of institutions of state power and administration, and
shall only obey the law." Thus, the activities of notaries are
grounded inter alia on the principle of independence.
6.6. Paragraph 2 (wording of 14 May 1998) of Article16 of
the Law on the Notary Office establishes that the notary shall be
held liable as a state servant for the commission, in the course
of carrying out notarial acts, of violations of laws and other
legal acts which incur criminal or administrative liability.
6.7. Under the Law on the Notary Office (wording of 15
September 1992 with subsequent amendments and/or supplements),
supervision of notary activities shall be exercised by the
Minister of Justice, a subject performing functions of the
executive authority, who: shall appoint and dismiss notaries
(Article 2 of Paragraph 2); shall approve the Regulations of
Notary Qualification Examination and the Procedure of Notarial
Traineeship (Item 3 of Paragraph 2 of Article 3), the Regulations
of Public Competition for Holding the Notary Office (Item 6 of
Paragraph 2 of Article 3), the Statute of the Chamber of Notaries
adopted by the meeting of the Chamber of Notaries (Paragraph 4 of
Article 8), and the Regulations of the Court of Honour of
Notaries (Paragraph 1 of Article 10-1); shall approve the
Regulations of the Improvement of Notaries' Qualifications
(Paragraph 1 of Article 4) and the Regulations of the Performance
of Notaries (Paragraph 3 of Article 4) upon the presentation of
the Presidium of the Chamber of Notaries; shall receive an oath
from the notary (Paragraph 1 of Article 5); shall establish the
number of notaries, their principal office, and the territory of
their activity (Paragraph 1 of Article 6); by his order shall
establish notary bureaus (Paragraph 2 of Article 6); shall
determine the requirements for notary bureaus and their working
time (Paragraph 3 of Article 6); by his orders shall register the
appointment of the notary and the commencement of the performance
of the notary office (Paragraph 1 of Article 6-1); shall appoint
persons to carry out official supervision of the activities of
notaries and their self-governing bodies (Paragraph 1 of Article
7); shall have the right to institute disciplinary action against
the notary for breaches of the Law on the Notary Office, legal
acts approved by the Minister of Justice, and the Code of Honour
(Ethics) of Notaries of the Republic of Lithuania (Article 7-1);
shall appoint two members of the Court of Honour of Notaries
(Paragraph 2 of Article 10-1); with the approval of the
Department of the Archives of Lithuania under the Government of
the Republic of Lithuania, shall determine the procedure for
keeping, storing and transfer of the documents executed in the
course of the notary's professional activity (Paragraph 4 of
Article 15-1); shall establish a uniform format of signs for all
notary bureaus (Paragraph 3 of Article 20-1); by his order shall
register the expiry of the notary powers (dismissal from office)
(Paragraph 2 of Article 23); upon the presentation of the Chamber
of Notaries, shall decide on the possibility to extend or not to
extend the notary powers until the notary reaches the age of 70
(Paragraph 3 of Article 23); shall establish the forms of the
notarial register, certificates and inscriptions of
authentication and the rules of completion thereof (Article 44);
shall determine the number of candidate notaries (assessors) by
taking account of the prospects and guidelines for the activities
of notaries formulated by the Chamber of Notaries (Paragraph 2 of
Article 56); shall set the Procedure of a Public Competition for
Candidate Notaries (Assessors) (Paragraph 3 of Article 56); shall
appoint and dismiss candidate notaries (assessors) (Paragraph 1
of Article 57); with the approval of the Presidium of the Chamber
of Notaries, shall establish the Procedure of Notarial
Traineeship for Candidate Notaries (Assessors) (Paragraph 1 of
Article 59).
6.8. Upon the expiry of notary powers, the Ministry of
Justice of the Republic of Lithuania shall make a decision about
further activities of a notary bureau, the continuation of
notarial acts which have not been performed yet and the transfer
of documents (Article 24 (wording of 22 September 1994) of the
Law on the Notary Office).
7. Summing up the discussed legal regulation, it needs to be
noted that the Law on the Notary Office virtually entrenches the
notary office of the so-called Latin type (the Latin system of
the organisation of notary office), which is characteristic of
the tradition of Civil (Continental) Law. In Lithuania, notaries
perform functions of public nature, however, they are not state
(or municipal) servants and they are engaged in autonomous
professional activity, whereas their functions, other activities
and empowerments are defined by laws. In this context it also
needs to be mentioned that the notary shall be held liable as a
state servant for commission, in the course of carrying out
notarial acts, of violations of laws and other legal acts which
incur criminal or administrative liability.
The profession of the notary is a state-controlled
profession, i.e. such performance of functions ensuring a public
interest, involving the legal entrenchment of subjective rights
and legal facts of natural and legal persons and assurance of the
protection of legal interests of these persons and the state,
which is carried out by persons engaged in autonomous
professional activity, whereas the state, having transferred
these functions to notaries, exercises control over their
performance. The notary shall be appointed and dismissed by the
Minister of Justice, who inter alia shall carry out the
supervision of notary activities. The notary shall be a person
authorised by the state who shall ensure that there are no
illegal transactions or documents in civil legal relations. Thus
the notary performs such functions the performance of which must
be ensured by the state. The ensuring of the discharge of these
functions is a public interest and an obligation of the state.
The activities of notaries are grounded inter alia on the
principle of independence.
8. While construing the disputed legal regulation entrenched
in Paragraph 3 (wording of 23 January 2003) of Article 23 of the
Law on the Notary Office whereby the notary powers may be
extended by an order of the Minister of Justice upon the
presentation of the Chamber of Notaries until the notary reaches
the age of 70, in the context of the aforesaid provisions of the
Law on the Notary Office, it needs to be noted that:
- the grounds for expiry of notary powers are laid down in
Paragraph 1 (wording of 23 January 2003 with subsequent
amendments) of Article 23 of the Law on the Notary Office; one of
the grounds for expiration of notary powers is the notary's age,
i.e. 65 years (Item 8 (wording of 23 January 2003 with subsequent
amendments) of Paragraph 1 of Article 23 of the Law on the Notary
Office);
- upon the age of 65 the notary powers may be extended upon
the presentation of the Chamber of Notaries by an order of the
Minister of Justice until the notary reaches the age of 70; when
making a decision on the extension of notary powers, the Minister
of Justice shall not be bound by the presentation of the Chamber
of Notaries, however, this does not mean that in case of the
absence of the corresponding presentation by the Chamber of
Notaries the Minister of Justice shall be allowed to make a
decision on the extension of notary powers;
- neither Article 23 (wording of 23 January 2003 with
subsequent amendments) of the Law on the Notary Office nor other
articles thereof provide for the grounds (criteria) on the basis
whereof powers of the notary may be extended.
Thus, the powers of all notaries expire when they reach the
age of 65 years, save the notaries whose powers are extended upon
the presentation of the Chamber of Notaries by an order of the
Minister of Justice until the notary reaches the age of 70 years;
such legal regulation entrenches an exception to the general rule
whereby the powers of notaries expire when they reach the age of
65 years, where the exception means that upon the presentation of
the Chamber of Notaries by an order of the Minister of Justice
the powers of some notaries, who have reached the age of 65
years, expire when they reach the age of 70 years.
It needs to be noted that the right of the Minister of
Justice to extend the notary powers until the notary reaches the
age of 70 may not be interpreted as denying the general rule
entrenched in Item 8 of Paragraph 1 (wording of 23 January 2003
with subsequent amendments) of Article 23 of the Law on the
Notary Office that the notary powers shall expire when the notary
reaches the age of 65. On the other hand, the legal regulation
consolidated in Paragraph 3 (wording of 23 January 2003) of
Article 23 of the Law on the Notary Office does not mean that in
all cases regarding the notary whose powers expire after he
reaches the age of 65 years established by the law, and who meets
inter alia the requirements set out in Article 3 "The Right to
Hold the Notary Office" (wording of 23 January 2003 with
subsequent amendments) of the Law on the Notary Office, upon the
presentation of the Chamber of Notaries, the Minister of Justice
must make a decision to extend the notary powers until the notary
reaches the age of 70 years.
Such legal regulation creates preconditions for the
situations when part of notaries, who have reached the age of 65
years, may be dismissed from office, whereas the powers of
another part of notaries, upon their reaching the age of 65
years, may be extended until they reach the age of 70 years.
Thus, such legal regulation creates preconditions to treat
persons of the same group (i.e. persons engaged in the same
professional activity) unequally.
9. It has been mentioned that the Vilnius Regional
Administrative Court, the petitioner, doubts as to whether
Paragraph 3 (wording of 23 January 2003) of Article 23 of the Law
on the Notary Office is not in conflict with the constitutional
principle of a state under the rule of law.
10. The doubts of the petitioner as regards the compliance
of the disputed legal regulation with the constitutional
principle of a state under the rule of law are grounded on the
fact that, in its opinion, such legal regulation, which provides
for the possibility to extend the notary powers upon the expiry
of their term and does not provide for any such criteria on the
basis of which it would be possible to decide whether to extend
or not to extend the notary powers, creates preconditions for the
state institutionthe Ministry of Justiceto exert influence on
the activities of the notary as a person who is authorised by the
state.
11. The constitutional principle of a state under the rule
of law implies various requirements for the legislator and other
law-making entities: law-making entities are empowered to pass
legal acts only without exceeding their powers; the requirements
established in legal acts must be based on the provisions of
general type (legal norms and principles) which can be applied in
regard to all the specified subjects of respective legal
relations; the differentiated legal regulation must be based only
on objective differences of the situation of subjects of public
relations regulated by respective legal acts; subjects of legal
relations must be aware of what legal norms require from them;
when legally regulating public relations it is compulsory to pay
heed to the requirements of natural justice comprising inter alia
the necessity to ensure the equality of persons before the law,
the court and state institutions and officials, etc.
(Constitutional Court rulings of 13 December 2004 and 16 January
2006).
12. In its rulings, the Constitutional Court has held more
than once (inter alia Constitutional Court rulings of 13 December
2004 and 29 December 2004) that the constitutional principle of a
state under the rule of law entrenched in the Constitution, among
other requirements, also implies that human rights and freedoms
must be secured, that all institutions implementing state power
as well as other state and municipal institutions and all
officials must act on the grounds of law and in compliance with
the Constitution and law, that the Constitution has the supreme
legal power, and that all legal acts must be in compliance with
the Constitution.
The constitutional principle of a state under the rule of
law is especially capacious; it comprises a range of various
interrelated imperatives; thus, the content of the constitutional
principle of a state under the rule of law is to be revealed by
taking account of various provisions of the Constitution and by
evaluating all the values entrenched in and defended and
protected by the Constitution (Constitutional Court ruling of 13
December 2004). The constitutional principle of a state under the
rule of law is also inseparable from the principle of equal
rights of persons consolidated inter alia in Article 29 of the
Constitution (Constitutional Court ruling of 14 April 2006).
13. Constitutional Court has held more than once that the
principle of equal rights of persons must be also followed in the
course of both enactment of laws and their application; the
constitutional principle of equality of persons before the law
means an innate human right to be treated equally with the others
(Constitutional Court rulings of 2 April 2001, 23 April 2002, 4
July 2003, and 3 December 2003) and obliges to legally assess the
homogenous facts in the same manner and prohibits to arbitrarily
assess the facts, which are the same in essence, in a different
manner; on the other hand, this principle does not deny a
possibility to provide in a law for a different legal regulation
in respect to certain categories of persons who are in different
situations (Constitutional Court rulings of 23 April 2002, 4 July
2003, 3 December 2003, and 26 September 2007).
14. It needs to be noted that the legal regulation of the
implementation of the right of a person to freely choose a job or
business established in Paragraph 1 of Article 48 of the
Constitution must be also grounded upon the constitutional
principle of a state under the rule of law as well as the
principle of equality of rights of persons.
When systemically (in the context of other provisions of the
Constitution) construing Article 48 of the Constitution
(Paragraph 1 whereof inter alia provides that each human being
may freely choose a job or business), the Constitutional Court
has held that, while creating the legal preconditions for
implementation of the right to freely choose a job or business,
the legislator is empowered, by taking account of the nature of a
job, to establish the conditions of the implementation of the
right to freely choose a job (Constitutional Court rulings of 25
November 2002, 4 July 2003, 13 December 2004, 29 December 2004,
13 August 2007, 7 January 2008, and 20 February 2008).
15. It needs to be noted that the state may exercise its
functions not only through a system of corresponding
institutions, which encompass both state and municipal
institutions (as a rule, it is what the state does), but also, to
a certain extent, through other (non-state) institutions, which
are assigned (entrusted) according to the laws with exercising
particular state functions or which participate in exercising
state functions in particular forms and manners defined in the
laws (Constitutional Court rulings of 13 December 2004, 21
December 2006, 20 March 2007, and 7 January 2008).
16. In the context of the constitutional justice case at
issue, it needs to be noted that, in the cases when other (non-
state) institutions are assigned with exercising certain state
functions by law, a duty stems for the legislator, while he sets
the requirements which must be met by a person willing to carry
out such activities, the term of his powers, grounds for expiry
of his powers etc., to heed the imperatives which arise from
inter alia Articles 29 and 48 of the Constitution as well as the
principle of a state under the rule of law. One must establish
such legal regulation whereby the persons implementing the right
to freely choose a job or business entrenched in Article 48 of
the Constitution and inter alia engaging in the same state-
controlled professional activity would be granted the same
conditions of professional activity, inter alia the same term of
powers. Otherwise, preconditions for violation of the imperatives
stemming from Articles 29 and 48 of the Constitution as well as
the constitutional principle of a state under the rule of law
would be created.
17. Subsequent to the petition of the Vilnius Regional
Administrative Court, the petitioner, when deciding whether the
legal regulation, which is disputed by the petitioner, whereby
the notary powers may be extended by an order of the Minister of
Justice upon the presentation of the Chamber of Notaries until
the notary reaches the age of 70 years is not in conflict with
the Constitution, it needs to be noted that a person upon
choosing the profession of the notary also implements the right
to freely choose a job or business which is entrenched in Article
48 of the Constitution.
It has been mentioned that powers of all the notaries expire
when they reach the age of 65 years, save notaries whose powers
are extended upon the presentation of the Chamber of Notaries by
an order of the Minister of Justice until the notary reaches the
age of 70 years. It has been mentioned that neither Article 23
(wording of 23 January 2003 with subsequent amendments) of the
Law on the Notary Office nor other articles thereof provide for
the grounds (criteria) on the basis whereof the powers of the
notary may be extended. Such legal regulation implies that the
term of notary powers is determined not by the grounds of the
expiry of the term which are established by law and applied to
all persons equally, but by the right of the Minister of Justice
to decide at his discretion upon the presentation of the Chamber
of Notaries whether to extend or not to extend the powers of the
notary. It has also been mentioned that such legal regulation,
under which part of the notaries who have reached the age of 65
years, may be dismissed from office, whereas the powers of
another part of notaries, upon their reaching the age of 65
years, may be extended until they reach the age of 70 years,
creates preconditions to treat persons of the same group (i.e.
persons engaging in the same professional activity) unequally.
18. Thus, it needs to be held that the disputed legal
regulation entrenched in Paragraph 3 (wording of 23 January 2003)
of Article 23 of the Law on the Notary Office, under which the
Minister of Justice is granted the right to extend or not to
extend the powers of the notary at his discretion and whereby
preconditions are created to unequally treat the notaries whose
powers expire when they reach the age of 65 years as well as to
evaluate the same circumstances in a different manner or to
evaluate fundamentally different circumstances in the same
manner, is to be assessed as being not in compliance with the
imperatives of the right to freely choose a job or business,
which is consolidated in Paragraph 1 of Article 48 of the
Constitution, as well as with the principle of equal rights,
which is entrenched in Article 29; moreover, the said legal
regulation also deviates from the constitutional principle of a
state under the rule of law.
19. Taking account of the arguments set forth, one is to
draw a conclusion that Paragraph 3 (wording of 23 January 2003)
of Article 23 of the Law on the Notary Office is in conflict with
the provision "Each human being may freely choose a job or
business" of Paragraph 1 of Article 48 of the Constitution and
the constitutional principle of a state under the rule of law.
20. In this context it needs to be noted that there might,
in an objective way, also arise such situations when there are no
possibilities by any other means as only upon a temporary
extension of notary powers for a certain period to ensure the
continuity of discharge of functions assigned by the state, i.e.
juridical certification of subjective rights and legal facts of
natural and legal persons, and in this way to secure the public
interest. Thus, the legislator is allowed to establish only such
legal regulation which provides for an exception under which the
notary powers might be extended temporarily only in cases when
there are no possibilities by any other means to ensure for a
certain period of time the discharge of functions assigned by the
state, i.e. to secure the public interest.
21. In the context of the constitutional justice case at
issue, alongside, it needs to be noted that the fact that by this
Constitutional Court ruling Paragraph 3 (wording of 23 January
2003) of Article 23 of the Law on the Notary Office has been
recognised as contradicting the Constitution does not mean that
the notary powers which have been extended on the basis of the
legal regulation which has been recognised in this constitutional
justice case as contradicting the Constitution may be questioned
on the said grounds alone or that these powers may discontinue or
may be terminated on the said grounds alone.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of
the Law on the Constitutional Court of the Republic of Lithuania,
the Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
To recognise that Paragraph 3 (wording of 23 January 2003;
Official Gazette Valstybės žinios, 2003, No. 15-598) of Article
23 of the Republic of Lithuania Law on the Notary Office is in
conflict with Article 29 of the Constitution of the Republic of
Lithuania, with the provision "Each human being may freely choose
a job or business" of Paragraph 1 of Article 48 thereof and with
the constitutional principle of a state under the rule of law.
This ruling of the Constitutional Court is final and not
subject to appeal.
The ruling is promulgated in the name of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Toma Birmontienė
Pranas Kuconis
Kęstutis Lapinskas
Zenonas Namavičius
Ramutė Ruškytė
Egidijus Šileikis
Algirdas Taminskas
Romualdas Kęstutis Urbaitis