NATIONAL NOTARY CHAMBER v. ALBANIA
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
The applicant is the National Notary Chamber of Albania (Dhoma Kombëtare e Noterisë) (“the applicant organisation”). The applicant organisation is represented before the Court by its President and representative Mrs Sh. Kurti. organisation, may be summarised as follows. The applicant organisation was established by Law no. 7829 of 1 June 1994 (“the Notary Act”) which was amended by Law no. 8790 of 10 May 2001 and Law no. 9216 of 1 April 2004. Prior to 1994 a public notary in Albania was considered a public servant and the role and profession of notary were not recognised as a liberal profession. On an unspecified date the applicant organisation became a member of the International Union of Latin Notaries (Union internacional del notariado latino, UINL). On an unspecified date the applicant organisation lodged a constitutional complaint with the Constitutional Court, complaining that Law no. 9216 of 1 April 2004 was unconstitutional. According to the applicant organisation, the Law gave the Minister of Justice control over the exercise of the profession of notary which was incompatible with the nature of liberal professions, thus infringing its rights to freedom of association. It argued that the character of its organisation was akin to that of non-profit-making organisations. It maintained that the new Law had applied rules applicable to public servants to the profession of notary. In particular, sections 6 § 6, 7 (f), 9 § 3, 13 §§ 3 and 5, 14 § 3 and 20 § 5 provided for the most important decisions taken by the National Notary Chamber to be approved by the Minister of Justice, thus stripping it of its decision-making powers and infringing its independence. According to the applicant organisation, the Law gave the Minister of Justice powers that went beyond his supervisory role, subjecting notaries to hierarchical dependence. Lastly, the applicant organisation contested the age-limit imposed by the Law on the exercise of the profession of notary as at variance with the principle of the exercise of liberal professions. On 19 January 2005 the Constitutional Court dismissed the applicant organisation’s complaint and upheld the constitutionality of the Law contested. The court assessed that the basis for the restrictions on the exercise of the profession of notary, in contrast with other liberal professions, had to be found in the public effects of notaries’ actions and in the control that the State needed to exercise over notaries’ services in order to guarantee the interest of the community. “The Constitutional Court decides on: (a) the compatibility of a law with the Constitution or international agreements as provided for under Article 122 ... 1. The Constitutional Court can be seized only at the request of ... (f) political parties and other organisations ... 2. The entities designated in the first paragraph, letters ... f ... can lodge applications only on issues connected with their interests.” Pursuant to the Notary Act of 1994, as amended in 2001, the profession of notary in Albania was considered a liberal profession and notaries in exercising their profession were independent and bound by the legal provisions in force. For the purpose of exercising his duties, a notary was equivalent to a public servant and enjoyed protection under the law. The Act sets forth the structure and bodies of the notary profession. It provides for notaries to be organised at district and national level. All practising notaries engaged within a given district must be members of the district notary chamber. The Act provides that a notary chamber is a legal entity and as such is to be registered in accordance with the procedures prescribed for registering a legal entity. The governing bodies of district notary chambers are the general assembly of all practising notaries in the district and the council of notary chambers. The Act describes in detail the powers of each of these bodies. Disciplinary measures such as: a reprimand, a reprimand with a warning of dismissal, and a fine, are taken by district notary chambers. The disciplinary measure of dismissal is taken by the Minister of Justice. Section 36 of the Act establishes the National Notary Chamber, which is composed of notaries elected by the general assembly of district notary chambers. The central bodies of the National Notary Chamber are the general assembly of representatives of district notary chambers, the national council and the president. The tasks of the president and the national council are defined in the National Notary Chamber’s statute, which is approved by its general assembly. The Act sets forth the following chief tasks of the National Notary Chamber: a) to coordinate the activities of all notary chambers at district level; b) to represent and defend the interests of district notary chambers before state authorities and other institutions; c) to draft a Professional Ethics Code to be approved by the Minister of Justice; d) to approve the standard statute (statuti tip) of district notary chambers and their internal rules of procedure; e) to draw up and keep national and regional registers of notaries; and f) to determine the amount of funds to be allocated to the national council for the performance of its duties. The Act describes the procedure for entering and practising the notary profession. Thus, before engaging in private practice an incumbent notary has to sit an entrance examination whose overall organisation is run directly by the Minister of Justice. A notary must also obtain a licence issued by the Minister of Justice prior to entering professional practice. The appointment, transfer and removal from office of a notary are made by order of the Minister of Justice. Before assuming their duties notaries take an oath before the Minister of Justice or a duly authorised person appointed by the Minister. Under the 1994 Act the removal from office of a notary was not conditional on age. The Act also contains provisions governing, inter alia, the rights and obligations of notaries. The Ministry of Justice, having regard to the opinion of the Ministry of Finance and the National Notary Council, determines the schedule of notary fees. Section 14 stipulates that the Ministry of Justice supervises notaries’ [legal] performance. In 2004 Parliament enacted Law no. 9216 of 1 April 2004, which amended several sections of the Notary Act. In particular, the new Law strengthened the role of the Minister of Justice. Sections 6 § 6, 7 (f), 9 § 3, 13 §§ 3 and 5, 14 § 3 and 20 § 5 provide for the most important decisions to be adopted by the Minister of Justice, having regard to the written opinion of the National Notary Chamber. Most notably, it stipulates that the transfer of a notary to another district must be authorised by the Minister of Justice. It empowers the Minister of Justice to initiate disciplinary proceedings and decide on the disciplinary measures to be taken, even though the notary chamber may refuse to impose such a measure. Section 6 introduces an upper age limit on the notary profession. A notary’s licence will thus be removed when that notary reaches the age of 65.