FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 17029/05
by National Notary Chamber
against Albania
The European Court of Human Rights (Fourth Section), sitting on 6 May 2008 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 3 May 2005,
Having deliberated, decides as follows:
THE FACTS
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.
A. The circumstances of the case
The facts of the case, as submitted by the applicant 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).
Domestic court proceedings
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.
B. Relevant domestic law and practice
1. The Albanian Constitution, in its relevant parts, reads as follows:
Article 131
“The Constitutional Court decides on:
(a) the compatibility of a law with the Constitution or international agreements as provided for under Article 122 ...
Article 134 §§ 1 (f) and 2
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.”
2. The Notary Act (Law no. 7829 of 1 June 1994 as amended by law no. 8790 of 10 May 2001 and law no. 9216 of 1 April 2004)
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.
COMPLAINTS
The applicant organisation complained that the law in force in Albania at the relevant time had failed to secure its rights under Article 11 of the Convention. It also relied on Article 14 of the Convention in that the removal of a notary’s licence at the age of 65 discriminated against them in comparison with other liberal professions.
THE LAW
The applicant organisation complained, under Article 11 of the Convention, that the strengthened role of the Minister of Justice unjustifiably interfered with its right to freedom of association. It also relied on Article 14 of the Convention as regards the disproportionate difference in their treatment in comparison with the other liberal professions on account of the imposition of a legal retirement age by the 2004 Law.
Article 11 provides:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court notes that this application was not lodged by an individual person but by an organisation (compare O.V.R. v. Russia (dec.), no. 44319/98, ECHR 2001‑V). The Court further observes that it is not required to examine whether the applicant organisation has appropriate standing to lodge its complaints as required by Article 34 of the Convention, as the application is anyway inadmissible for the reasons set out below.
The first question the Court has to determine in the present case is whether the notary chambers are associations for the purposes of Article 11 of the Convention (see Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43, pp. 26-27, §§ 62-66).
The applicant organisation submitted that the profession of notary entailed a private law service. It argued that a notary’s status could not be equivalent to that of a public servant. It acknowledged that a notary fulfilled a public law function. This function had been granted to a notary by law and was directly governed by the State instead of being a “delegated” function.
The Court notes at the outset that the Convention institutions have consistently held that the regulatory bodies of the liberal professions are not associations within the meaning of Article 11 of the Convention (see Le Compte, Van Leuven and De Meyere, cited above, pp. 26‑27, §§ 64‑65, as regards the Belgian Ordre des médecins; Revert and Legallais v. France, nos. 14331/88 and 14332/88, Commission decision of 8 September 1989, Decisions and Reports (DR) 62, p. 309, as regards the French Ordre des architectes; A. and Others v. Spain, no. 13750/88, Commission decision of 2 July 1990, DR 66, p. 188, as regards the Spanish Bar Association; Vialas Simón v. Spain, no. 16685/90, Commission decision of 8 July 1992, unreported, as regards the Spanish Ordre des médecins; O.V.R. v. Russia (dec.), no. 44319/98, ECHR 2001‑V, as regards the Russian notary chambers; and Popov and Others, Vakarelova, Markov and Bankov v. Bulgaria (dec.), no. 48047/99, as regards two Bulgarian professional organisations of doctors and dentists). As a rule, the object of these bodies, established by legislation, is to regulate and promote the professions whilst exercising important public law functions for the protection of the public. They cannot, therefore, be likened to private law associations or trade unions, but remain integrated within the structures of the State.
The Court must examine specifically whether in the present case the National Notary Chamber is an association falling within the purview of Article 11 of the Convention or is rather a public law institution, compulsory membership of which does not constitute an interference with the applicants’ freedom of association.
The Court notes that, much like the Belgian Ordre des médecins, the applicant organisation was founded not by individuals but by the legislature. It pursues an aim which is in the general interest - namely the confirmation of the authenticity of legal deeds and contracts - by exercising under the relevant legislation a form of public control over the practice of the notary profession. Within the context of this latter function, the applicant organisation is required to keep a register of practising notaries. It is invested with administrative as well as regulatory powers.
As regards the structure of the applicant organisation, the Court notes that it is described in detail by the Notary Act. The Act sets out the structure and function of the central bodies at national and district level and the membership of those bodies.
As regards the membership of the applicant organisation, the Court notes that it comprises representatives of the district notary chambers, whose compulsory membership of the latter stems from an individual decision to practise a profession which by its nature requires particular legal regulation.
Having regard to all of the above, the Court concludes that the National Notary Chamber and the district notary chambers cannot be considered associations within the meaning of Article 11 of the Convention.
In these circumstances, the Court concludes that the applicant organisation’s complaint falls outside the scope of Article 11 of the Convention and that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.
In so far as the applicant organisation also relies on Article 14 of the Convention, the Court notes that this provision does not have an independent existence but complements other substantive Convention provisions (see Gaygusuz v. Austria, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1141, § 36). As the Court has held above that the applicant’s complaint is incompatible with Article 11 of the Convention, it cannot examine any purported link with Article 14.
Accordingly, this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy