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On the extension of notary powers

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 hearing—Daiva 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 institution—the Ministry of Justice—to 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 activity—he 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 61, 62, 151, 221, and 271 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 101); 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 61); 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 71); shall appoint two members of the Court of Honour of Notaries (Paragraph 2 of Article 101); 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 151); shall establish a uniform format of signs for all notary bureaus (Paragraph 3 of Article 201); 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 institution—the Ministry of Justice—to 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