Decision dismissing the request for annulment of certain provisions of the Notary Act

06 September 2018 Thursday

(E.2017/163, K.2018/90, 6 September 2018)

Contested Provision

The impugned provision concerns the joint current account of the notary offices and distribution of income on the basis of this procedure.

Grounds for the Request for Annulment

In the petition, it is maintained that notaries who deal with and perform more actions make more contributions to the common account, expend more labour and incur more expenses than the other notaries with less volume of work; and that accordingly the procedure whereby the income obtained through the notarial actions is collected in a joint account and subsequently distributed is in breach of the Constitution.

The Court’s Assessment

Office of notary is a public service. Such services are continuous and regular activities which pursue public interests. These services may therefore be determined by the legislator, without any restriction, considering the requirements and necessities of the relevant office as well as the country. Notary offices cannot be regarded as a private enterprise and cannot therefore be subject to provisions concerning private enterprises.

Given the facts that notaries receive a certain rate of fees paid for notarial actions, that they equally utilize the incomes obtained through notarial actions performed by the notaries of the same classification, and that all notaries are of the same status, it has been observed that the procedure of common current account has not led to benefitting from an individual’s labour without making an endeavour. Therefore, it is not possible to define this procedure as forced labour.

It is set out in the legislative intent of the relevant Article that by virtue of the contested provisions, the legislator intended to prevent competition and eliminate excessive income disparity among notaries of the same degree who are operating within the same province, district or metropolitan municipality. It has been accordingly concluded that the contested provisions impose a restriction on the right to property in order for attaining a public-interest aim. This restriction on the right to property does not concern incomes of the notaries, but rather the amount to be calculated over a certain rate of their incomes, which are subject to a fee or stamp duty, and to be transferred into a common current account.

Accordingly, it has been concluded that the restriction imposed by the contested provisions does not hamper the enjoyment of the right to property to a significant extent; that the means for restriction is compatible with and proportionate to the aim pursued thereby; and that the reasonable balance between the public interest of preventing competition as well as of eliminating excessive income disparity among notaries and the right to property was struck.

In this sense, it cannot be said that the restriction impairs the very essence of the right to property. Nor can it be concluded that it is incompatible with the requirements of a democratic society and state of law as well as with the principle of proportionality.

For the reasons explained above, the Court found that the contested provisions were not contrary to the Constitution and dismissed the request for annulment.