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Content updated: 21-10-2020 15:34

Following an individual constitutional complaint, the Constitutional Court has recognised that the established mandatory membership in the Chamber of Architects for certified architects not engaged in professional architectural activities is in conflict with the Constitution

11-09-2020

By its ruling adopted today, the Constitutional Court has recognised that Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law on the Chamber of Architects (hereinafter referred to as the Law), insofar as it establishes mandatory membership in the Chamber of Architects of the Republic of Lithuania (hereinafter referred to as the Chamber) for certified architects not engaged in the activities of a certified architect, is in conflict with Paragraph 2 (“No one may be compelled to belong to any society, political party, or association”) of Article 35 of the Constitution and with the constitutional principle of a state under the rule of law.

In addition, although it has not been impugned by the petitioner, Paragraph 4 of Article 4 of the Law, insofar as it provides that the grounds for suspending and terminating membership in the Chamber are laid down in the Statute of this Chamber, has been found by the Constitutional Court to be in conflict with the provision of Paragraph 3 of Article 35 of the Constitution, according to which “The founding and activities of political parties and other political and public organisations shall be regulated by law”, as well as with the provision of Paragraph 1 of Article 48 of the Constitution, according to which “Everyone may freely choose a job or business”.

This is the first case following an individual constitutional complaint that has been resolved in favour of the petitioner.

In his petition to the Constitutional Court, the petitioner claimed that his rights were violated by the decisions of the Chamber and its Commission for the Professional Certification of Architects, which revoked the validity of his certificate of qualification as an architect due to the unpaid fee payable by a member of this Chamber. The petitioner based its doubts on the fact that, in his opinion, the legislature has no powers to impose, by means of a law, mandatory membership in a professional self-governance association on persons in a state-controlled profession who are not engaged in the professional activities concerned, as, under the Constitution, the essential condition for mandatory membership in such associations is engagement by persons in the respective state-controlled professional activities.

In deciding on the compliance of the impugned legal regulation with the Constitution, the Constitutional Court noted that Article 35 of the Constitution consolidates one of the fundamental rights of a citizen of a democratic state – namely, the right to associate or freedom of association. The constitutional right to associate freely in societies, political parties, or associations is manifold; its content is composed of the right to set up societies, political parties, or associations, the right to join them and take part in their activities, as well as the right not to be a member of any societies, political parties, or associations and the right to leave such entities. A person exercises the constitutional right to decide whether to belong to or not to belong to an association of his or her own free will. When the establishment of an association, its activity, and its membership relationships are regulated by means of a law, regard must be paid to, among other things, the requirement, consolidated in Paragraph 2 of Article 35 of the Constitution, that no one may be compelled to belong to, among others, any association. This constitutional principle must be observed when the establishment, activity, and membership relationships of all the types of associations are regulated by legal acts, regardless of the legitimate objectives pursued by these entities. However, the requirement laid down in Paragraph 2 of Article 35 of the Constitution is not absolute.

The Constitutional Court has held that the constitutional right of citizens to associate freely in, among others, associations may be limited by means of a law, but to the extent not greater than allowed by the Constitution itself, subject to the following conditions: the limitations are established by means of a law; the limitations are necessary in a democratic society in order to protect the rights and freedoms of other persons, the values consolidated in the Constitution, as well as the constitutionally important objectives; the limitations do not deny the nature and essence of rights or freedoms; and the constitutional principle of proportionality is observed. Under this principle, which is an element of the constitutional principle of a state under the rule of law and one of the conditions for limiting the exercise of the rights and freedoms of persons, the measures established by legal acts and put into application must be proportionate to the objective pursued, and the rights of a person may not be limited more than necessary in order to achieve a legitimate, universally significant, and constitutionally justifiable objective.

The Constitutional Court has also noted that the legislature has the powers under the Constitution to provide, by means of a law, for such a legal regulation whereby persons engaged in certain state-controlled professional activities are, under the law, members of a particular association that ensures the self-governance of the profession concerned, among others, the uniform standards of professional ethics and monitoring over compliance with these standards. Membership in such an association may be established by means of a law as a necessary condition for engaging in the professional activities concerned.

The Constitutional Court noted that the impugned legal regulation, laid down in Paragraph 1 of Article 4 of the Law, and the related legal regulation establish mandatory membership for certified architects in the Chamber – an institution established by means of a law for the professional self-governance of a state-controlled profession (architects), which performs the public functions entrusted by the state, i.e. ensures, among others, the transparency and quality of architectural activities, certification of architects, recognition of qualification, compliance with the standards of professional ethics, the defence of public interests related to architecture, as well as other control required under the laws to be carried out over architectural activities. The members of the Chamber are all certified architects, i.e. architects holding a certificate of qualification as an architect, issued by the Chamber and entitling them to engage in the activities of a certified architect, regardless of whether they are engaged in the professional activities of a certified architect or are not engaged in such activities.

Thus, by such a legal regulation, which establishes mandatory membership in the Chamber for certified architects engaged in professional activities, the legislature implemented the powers, deriving from the Constitution, among others, Article 35 thereof, to establish, by means of a law, that persons engaged in certain state-controlled professional activities are, under the law, members of a particular association that ensures the self-governance of the profession concerned, the uniform standards of professional ethics, and monitoring over compliance with these standards. In this way, this legal regulation is aimed at achieving the constitutionally important objective – to ensure the transparency and quality of architectural activities related to the implementation of the public interest, certification of architects, recognition of qualification, compliance with the standards of professional ethics, as well as other control required under the laws to be carried out over architectural activities.

However, by means of the impugned legal regulation, having established mandatory membership in the Chamber for certified architects not engaged in professional activities, the legislature exceeded the powers conferred on it under the Constitution, among others, Article 35 thereof, to establish, by means of a law, mandatory membership in an association only for persons engaged in certain state-controlled professional activities.

At the same time, the Constitutional Court noted that certified architects who are not engaged in the professional activities concerned also do not carry out any such activities (related to the implementation of the public interest) control over which is entrusted by the state to the Chamber. Therefore, mandatory membership in the Chamber for certified architects not engaged in the professional activities concerned, which is established under the impugned Paragraph 1 of Article 4 of the Law, should be regarded as unnecessary in order to achieve the constitutionally important objective; meanwhile, the freedom of association of these architects is limited more than necessary.

In view of this, the Constitutional Court held that the impugned legal regulation, under which certified architects not engaged in the activities of a certified architect are mandatorily members of the Chamber, disregarded the prohibition, consolidated in Paragraph 2 of Article 35 of the Constitution, to compel persons to belong to any association, as well as disregarded the requirement, arising from the constitutional principle of a state under the rule of law, that freedom of association must not be limited more than necessary in order to achieve a constitutionally important objective.

The Constitutional Court noted that, among others, such a legal regulation established under the Law would be in line with the Constitution whereby certified architects not engaged in the activities of a certified architect would have the right to suspend their membership in the Chamber.

The Constitutional Court has held more than once that, if it finds the unconstitutionality of provisions that are not impugned by the petitioner but are consolidated in the same legal act whose other provisions are impugned by the petitioner in terms of their compliance with the Constitution, it must state that the provisions that are not impugned by the petitioner are unconstitutional. The implementation of constitutional justice implies that a legal act (part thereof) that is in conflict with the Constitution must be removed from the legal system; therefore, under the Constitution, the Constitutional Court must remove from the legal system any anti-constitutional provisions whose conflict with the Constitution comes to light in a constitutional justice case under consideration.

In this ruling, the Constitutional Court noted that, under Paragraph 3 of Article 35 of the Constitution, regulating the establishment and activity of an association that ensures the self-governance of a state-controlled profession and is, under the laws, assigned to perform certain functions of the state or participate in the performance of these functions and, under the law, unites persons engaged in certain independent professional activities related to the implementation of the public interest, the legislature must, by means of a law, establish the grounds for suspending and terminating membership in such an association, among other things, those in relation to the right to carry out the professional activities concerned. Otherwise, no regard would also be paid to the requirement, arising with respect to the legislature from the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution, to provide for the conditions for implementing the right of every person to freely choose an occupation or business.

Under Paragraph 4 of Article 4 of the Law, interpreted in conjunction with Paragraph 3 of Article 3, the conditions for membership in the Chamber, among other things, the suspension and termination of membership, are regulated not by means of the Law, but by means of the Statute of the Chamber, approved by a meeting of members of the Chamber. Consequently, under this legal regulation, the validity of the certificate of qualification as an architect, which entitles its holder to engage in the activities of a certified architect, may be revoked on the grounds other than those laid down by means of a law. Thus, the legal regulation laid down in Paragraph 4 of Article 4 of the Law created the preconditions for establishing, not by means of a law, but by means of an act adopted by the Chamber, the grounds for suspending and terminating membership in the Chamber, i.e. at the same time, the grounds for suspending and terminating the professional activities of a certified architect and, thus, also the essential conditions for implementing the right to engage in the professional activities concerned.

In view of this, the Constitutional Court held that the legal regulation laid down in Paragraph 4 of Article 4 of the Law disregarded the requirement, arising from Paragraph 3 of Article 35 of the Constitution, to establish, by means of a law, the grounds for suspending and terminating membership in the Chamber, among others, those in relation to the right to carry out the professional activities of an architect, as well as disregarded the requirement, arising with respect to the legislature from Paragraph 1 of Article 48 of the Constitution, to provide for the conditions for implementing the right of every person to freely choose an occupation or business.