The Bar Association referred the Initiative to the Constitutional Court of Montenegro for evaluation of the constitutionality and legality of the Law on Notaries.
The initiative states that the legal text is unconstitutional and reminds that the law on notaries was adopted in 2005, and that no provision of the constitution allows the transfer of jurisdiction from courts to natural persons.
"So, judicial power is exercised by the courts. No exception is foreseen from this rule.
The transfer of judicial power to some other bodies or entities is not foreseen by any provision of the Constitution, in contrast to the possibility of transferring certain tasks of the state administration (Article 99 of the Constitution of the Republic of Montenegro).
We emphasize the wording "individual tasks of the state administration" and the fact that this provision is contained in the section of the Constitution that determines the organization and competences of the Government, in order to emphasize the difference between the possibility of transferring these tasks and judicial, or perhaps legislative tasks.
Most jurisdictions are originally judicial
For judicial and legislative affairs, the Constitution of the Republic of Montenegro did not provide for the possibility of transfer to anyone," the initiative says.
Judicial power is exercised by the courts. There is no exception to this rule
It is added that it is clear from the Law on Notaries itself that the state has transferred judicial powers to natural persons (notaries), but also from the explanation of the law, which emphasizes the "generally known workload of the courts", as the reason for its adoption.
"We think that it is not necessary to prove separately that most of the competences given to notaries are originally judicial, which, in our opinion, the Constitution of the Republic of Montenegro did not allow.
But, if some of the responsibilities of notaries are from the field of state administration, or if they are all from that field, the entire Law on Notaries would again be unconstitutional, because Art. 99 of the then Constitution stipulated that the following state administration tasks are performed by ministries and administrative bodies.
Notaries are not local self-government
Certain tasks of state administration can be transferred to local self-government by law. Certain tasks of the state administration can be entrusted by government regulation to local self-government, institutions and legal entities", it is recalled in the initiative of the Board of Directors of the Bar Association signed by its president lawyer Zdravko Begović
Certain tasks of state administration can only be transferred to local self-government, and notaries are not
Lawyers strongly remind that certain tasks of state administration can only be transferred to local self-government, and notaries are not.
"Entrusting certain tasks is another legal institute, but even then it can only be done for the benefit of local self-governments, institutions and legal entities, and notaries are none of the above.
At the time when the Law on Amendments to the Law on Notaries was passed (2008), the new Constitution of Montenegro was already in force, but with almost identical essential provisions as in the previous Constitution," say the lawyers.
They are not a legal aid service
They remind that notaries are defined by law as a public service and their acts represent a public document.
Notaries are not a legal aid service, they are a public service, with public powers and, unfortunately, monopolies
"We emphasize this in order to eliminate in advance a possible attempt for notaries to present themselves as some kind of legal aid. Notaries are not a legal aid service, they are a public service, with public powers and, unfortunately, monopolies.
It is obvious from everything previously stated that when enacting the Law on Notaries, the donor did not have in mind the constitutional restrictions that do not allow the transfer of state functions, except exceptionally, but never to natural persons," the initiative says.
It is recalled that the Bar Association previously supported the introduction of notaries into our legal system, but not in a manner contrary to the Constitution and not with such obvious monopolies, contrary to the general principles of economic regulation, expressed in Article 139 of the Constitution
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