GEO

New Draft Law to Undermine Proper Functioning of Notarial Services

28 October, 2015

 

The Parliament of Georgia is considering the draft Laws on Amendments to the Law on the Notaries and the Tax Code of Georgia, initiated by the Government (authored by the Ministry of Justice). Under this initiative, during the first 3 years a newly appointed notary will perform notarial duties in a high mountainous settlement, or a settlement, where notarial services are not properly available. Furthermore, a candidate notary’s refusal to be allocated in the respective settlement will result in refusal to appoint him/her as a notary. The draft Law states also that throughout entire period of activities, the Notary Chamber of Georgia will render due financial assistance to a notary. The draft Law is silent on the type of financial assistance mentioned. Pursuant to the explanatory note of the draft Law, financial assistance implies the 100-GEL monthly assistance issued to notaries with low incomes, remuneration of apartment rent, and provision of necessary technical inventory.

Transparency International Georgia believes that submitted amendments impose unjustified restrictions on notarial services. With this content the draft Law fails to achieve the set objective – delivery of notarial services to parts of the county’s population, which currently lack the opportunity to receive these services. In addition, the state’s grave interference in the notaries’ activities poses considerable long-term risks to the development of this sphere.

Financial assistance is issued to notaries with low incomes even today. Currently a notary, whose income is less than 1500 GEL (the so-called low-income notary), receives a monthly assistance from the Notary Chamber in the amount of 100 GEL. In some cases, the Notary Chamber covers for such notaries the apartment rent, purchase of equipment necessary for performing the activities, etc. If the Law is adopted, the financial assistance (type and amount of which the Law does not define) for this category of notaries becomes mandatory. Accordingly, the draft Law does not amend motivating norms but makes notarial activities mandatory at the location designated by the Ministry of Justice.

Regulations included in the draft Law blatantly interfere in labor rights of the notaries. Remarkably, the Constitutional Court of Georgia clarified in its 13 November 2014 recording notice concerning the notary’s institute that a notary’s position must be viewed as the state position stipulated in Article 29 of the Constitution of Georgia, statutory terms for occupying which must be consistent with the above-mentioned constitutional norm. Hence, it must be reasonable and must not create artificial obstacles for holding the position. Regulations in the draft Law raise additional questions on the compliance of such extra obligations with constitutional requirements. The Parliament is currently examining the draft law, under which the Council of Justice is prohibited from assigning the judge to another location temporarily against his/her will. Accordingly, mandatory determination of the notaries’ duty location by the Minister of Justice unjustifiably limits their labor rights.

Apart from legal problems, enforcement of legislative initiative is economically inexpedient as well. Under the law, notarial activities do not qualify as entrepreneurship and the source of profit, yet generating profits is a key motivator in discharging these activities. The explanatory note to the draft Law states that “in 2013 the Minister of Justice of Georgia has launched the campaign – “accessible notarial services”, which aimed to appoint candidate notaries on a condition that they would serve settlements where notarial services were unavailable (population did not have a notary)”. The form and means of the Minister’s such condition is unclear. This “experiment”, which is devoid of legislative basis, has failed as illustrated in the explanatory note, especially when notaries appointed on such conditions had moved to large cities shortly after. Mandatory discharge of notarial duties for 3 years, during which a notary bureau may incur financial losses, will demotivate qualified individuals from becoming notaries. In a long run this may even lead to the lack of notaries, thus reducing the availability of notarial services not only in small municipal districts, but large cities as well.

We urge the Government of Georgia to reject mandatory assignment of notaries for 3 years to undesirable locations, and to use non-mandatory motivating initiatives for increasing equal access to notarial services across the country.

 
Author: TI Georgia