Only four notaries were punished with symbolic fines in the last 12 years for violations in their work. Other proceedings that were conducted ended in rejection or suspension, because the notaries retired or stopped working.
The control of this important judicial link is almost absent, because only a symbolic number of notarial records are controlled by the Ministry of Justice (MOJ), due to the lack of capacity in the inspection services.
Judicial inspectors of the Ministry of Justice found 2020 irregularities from 2024 to 12, but only one notary was responsible for it in the disciplinary procedure, which was initiated by the Disciplinary Commission of the Chamber of Notaries (NKCG).
In over 200 inspections carried out over the past five years, judicial inspectors of the Ministry of Justice did not find any irregularities among notaries who were disciplinary in front of their chamber, except for Šuć Lekić, when it was established that he made a notary document for which he was not competent. The same notary avoided possible responsibility for the most serious breach of notarial duty by retiring.
The Chamber of Notaries did not carry out regular inspections of notaries.
That's the data it has Center for Investigative Journalism of Montenegro (CIN-CG) came with free access to information.
In the reports of the European Commission (EC) in recent years, it is noted, among other things, that there have been no significant results in securing the responsibility of independent legal professions, which, in addition to notaries, also include experts, court interpreters and lawyers.
Although the legal framework that ensures the accountability of the judiciary is mostly established, the EC adds in the latest report for 2024, it is necessary to ensure its full and effective application, in order to improve the accountability of the judiciary in practice.
The Ministry of Justice for CIN-CG assesses that there is room for strengthening the system of disciplinary responsibility of notaries, which is also recognized by the Strategy.
"Given the key role of notaries in ensuring legal security, the Ministry of Justice is of the opinion that the imposed disciplinary measures should be adequate and proportional to the severity of the disciplinary violation", the department states. Bojan Božović.
Lawyer Boris Marić for CIN-CG assesses that the system of determining disciplinary responsibility, as well as monitoring the work of notaries - is dysfunctional.
"It is not surprising that there are no more serious procedures, because the necessary quality control of the legality of the work of notaries, where the primary responsibility belongs to the Ministry of Justice, is lacking," emphasizes Marić.
The Ministry of Justice is justifying itself by saying that out of 10 systematized positions for judicial inspectors, only three of them are currently doing that job.
The Ministry, they say, has announced a public advertisement for the filling of one position of judicial inspector, which is in the final stage, and they also claim that it is planned to fill the remaining vacant positions as soon as possible.
Marić explains that the supervision and judicial inspections of the MoJ and the Chamber are predominantly formal in nature.
"I believe that in the coming period, due to the obligations from negotiations with the EU, there will be an increase in the quality of supervision with a focus on notary records, letters and deposits as an important form of money laundering prevention," he points out.
In the Justice Reform Strategy from 2024 to 2027, it is emphasized that the real estate market is recognized as one of the most risky areas in terms of money laundering and terrorist financing, and that raising the professional capacities of notaries, which would enable them to recognize risky transactions, is of key importance for suppression of money laundering. However, practice shows that in 2023, only 10 percent of notaries have completed training in the field of money laundering prevention. The strategy sets the goal of training all notaries by 2025.
The Chamber of Notaries of Montenegro (NKCG) claims that now there is a much greater number of trained notaries, and that all notaries are obliged to regularly submit notarial records to the Police Directorate.
"Also, every notary is obliged to report suspicious transactions to this authority," the Chamber points out.
In the reports on the assets of notaries, which can be found on the website of the Agency for the Prevention of Corruption (ASK), it can be seen that several of them managed to significantly increase their assets and money at their disposal in a short period of time.
We have not received an answer from the Ministry of Justice as to whether notaries will be included in vetting (property verification) and in what way.
The maximum amount that a notary can take in a case is 5.000 euros, with the fact that the certification of documents, which is their most common job, according to work reports, costs a few euros each.
The penalty for offenses is one average judge's salary
Since 2013, 11 disciplinary proceedings have been conducted, in which four notaries were fined one average judge's salary each for serious violations of notarial duty, which amounted to 1.137 to 1.274 euros, which is the minimum fine stipulated by the Law on Notaries.
According to the Law, disciplinary measures for serious violations of notarial duty are: a fine of up to 12 average monthly salaries of a judge of a basic court or a temporary ban on activities for up to one year.
The now retired Šućo Lekić, a notary from Podgorica, was fined 2021 euros in 1.137 for a serious breach of notary duty. He was punished because, in August 2019, he made a contract for which he was not competent.
"It is evident that the notary knew that he was performing an act that belongs to the official area of another notary," concludes the Disciplinary Commission.
Disciplinary proceedings were initiated against him this year as well, because he charged for services contrary to the stipulated tariff, but the disciplinary prosecutor abandoned the proceedings, because Lekić retired.
Former notary public Harun Adrović from Beran was fined in 2021 also with a minimum fine of 1.137 euros, for serious violation of notary duty. He was punished because during 2019 he made two notarial records between the municipality of Beran and the Agency for Investments and Development from that city, without being appointed by the Chamber of Notaries to make those records.
The Law on Notaries from 2016 prescribes that in all cases, in which one of the parties to the notarial record are state bodies or companies majority-owned by the state, such cases are assigned equally to notaries in the prescribed order by the Chamber of Notaries.
Another former notary from Beran Miladin Magdelinić he was punished for the same offense, i.e. signing a contract, for which he was not designated by the Chamber of Notaries. Magdelinić was also punished for notarizing another disputed contract, in which one of the contracting parties was a minor, who did not have the approval of the competent guardianship authority. For these two serious crimes, he was also fined a minimum fine of 1.137 euros each.
Notary public Svetlana Pavlović from the Bar was also punished with minimum fines for two serious violations of notarial duty, only then the average salary of a judge increased slightly, so in 2022 the minimum fine was 1.274 euros. She sold real estate, which was not located in Bar, but in Budva. Also, after several requests to submit the disputed record, the notary submitted another contract to the Chamber of Notaries, thereby making it impossible to carry out supervision, according to the decision of the Disciplinary Commission. She paid 2.549 euros for both offenses.
The Chamber of Notaries says that disciplinary commissions, like courts, are independent in their work and decision-making, so the Chamber has no authority to influence their decisions.
"We cannot agree that the disciplinary punishments for notaries are symbolic, bearing in mind that high fines were imposed in the disciplinary proceedings, and two notaries were temporarily removed from notary duties for several months", the Chamber states, adding that, in this year, the disciplinary prosecutor has ten applications for the work of a notary, which have not yet been decided.
According to the CIN-CG research, decisions on removing notaries for several months were made in 2012, when one notary was removed for two months and another for nine months. All other penalties, as of 2013, were minimal fines for serious violations of notarial duty, according to the data provided by the free access to information.
Train all notaries to recognize money laundering
In the inspections carried out by the Chamber in 2023, into which CIN-CG had an insight, the most "complaints" to notaries refer to the fact that they should insist on the presence of an interpreter, during certifications in which foreign citizens participate. The Commission pointed out to the notaries the legal obligation to submit all sales contracts whose amount exceeds 15.000 euros to the Directorate for the Prevention of Money Laundering and Financing of Terrorism.
According to the Law on the Prevention of Money Laundering and Financing of Terrorism, notaries must submit to the police all real estate contracts of EUR 15.000 or more, loan contracts over EUR 10.000, as well as the sale of motor vehicles of EUR 10.000 or more, no later than three days from conclusion of the contract.
Marić points out that the training of notaries on money laundering is necessary and that they are not proceeding at the required pace.
"Notaries are recognized as a risk point, but also part of the solution in establishing prevention to prevent possible money laundering through certain contractual transactions," he states.
It proposes a comprehensive analysis of a number of authorities involved in money laundering, in which, under the coordination of the Ministry of Justice, the State Prosecutor's Office, representatives of the judiciary, notaries and NGOs would be involved.
The Chamber adds that several trainings and consultations on this topic have been organized, which are attended by most notaries.
"The Chamber of Notaries will also organize trainings in accordance with the obligations from the Strategy in the coming period", the Chamber states.
According to the supervision of the Ministry of Justice, from 2020 to 2024, which CIN-CG had insight into, in addition to Lekić, irregularities were also found in notaries Gzima Calabrezia from Ulcinj, Jadranka Adžić from Podgorica, Lela Kostić i Ljubiša Marković from Nikšić, Lidija Pantović from Tuzi, Marine Milosevic i Senad Redžepagić from Bar, Miladina Beloica from Berana i Majde Kardović Music from Rožaj.
At Calabrezi, during the 2022 control, it was determined that VAT was not correctly calculated in one notary record. Adžić did not properly manage the directory, which was only updated in 2024, after several checks. At Kostić's, the papers of one case were not properly joined. The same mistake was made with Pantović, with the exception that it was found that a gift contract was missing a signature, and that for two years in a row the directory of persons whose will is with her was not kept up-to-date. Marković did not submit pre-contracts to the police exceeding the value of 15.000 euros. Milošević also did not properly bind the papers in one case, and the directory of wills was not kept properly. Beloica did not submit a contract over 15.000 euros to the police, and Redžepagić did not keep the directory up-to-date for several years in a row. He also had papers that were not properly connected. Kardović Music was also missing data from the directory of persons whose wills were with her.
During the inspection in 2020, the Ministry of Justice indicated to the Chamber of Notaries that all decisions, conclusions and positions from the sessions of the Board of Directors must be delivered without delay to all members of the NK.
Apart from Lekić, none of them were held accountable for these omissions. According to the Strategy, the problem is that during these inspections, a very small number of notarial records are inspected and that in many cases the control is completely absent.
During 2022, the judicial inspectors of the Ministry of Justice supervised only one percent of the total number of notary records, "so a more comprehensive insight into the work of the notary service is needed", the Strategy emphasizes.
That document stipulates that judicial inspectors will control 2027 percent of notaries by 100.
The Ministry of Justice points out that the Judicial Inspection is trying to supervise the majority of notaries even with the existing number of judicial inspectors.
"Last year, 75 percent of notaries were inspected, so we believe that it is realistic to expect that with an increase in the number of judicial inspectors, all notaries can be inspected," the Ministry said.
Unfair competition is still present
For years, there has been talk of unfair competition among notaries and the connection of certain notaries with banks and larger investors, as well as the practical inheritance of notary offices.
The Chamber states that notaries have also been observed conditioning parties to meet their needs for notary services with certain notaries, and that such a situation at the very beginning of the notary was very bad.
"Although some measures have been taken in the meantime to eliminate such behavior, even today, with the support of some investors, there is unfair competition among notaries", they admit in the Chamber.
They explain that unfair competition in some cases is also reflected in illegal covert and sometimes open advertising, which is expressly prohibited by law.
"There is no justification for citizens to receive different services from different notaries either in terms of quality or price. The parties are completely free to choose the notary with whom they will conclude the contract and they should not give in under pressure from anyone, because the notary is chosen by the person who pays for the notary service", the Chamber explains.
They claim that they resolutely fight against such negative phenomena through preventive and repressive measures.
"Proving such actions is very difficult, because the parties in the proceedings are generally not willing to testify about negative actions," the Chamber states.
Marić indicates that there are significant differences in the annual reports regarding the number of performed notarial actions related to the operations of banks and investors.
"There are big differences in the number of cases processed, which points to the suspicion that we have a form of unfair competition, and that all this must be investigated through the competences of the Ministry of Justice and the Chamber", he points out.
This disloyalty can occur, explains Marić, also due to the advantage of the place where the notary works, because the central and southern regions are much better for business.
"The second could be that banks and investors have notaries of 'trust', which in itself cannot be interpreted a priori as an irregularity," Marić assesses.
He also points out that the method of selecting notaries must be changed in the direction of greater control, transparency and certainty of the procedure.
"I think that the Ministry of Justice has announced that it will go in the direction of changing the way notaries are elected. I expect that it will be done in a transparent manner with a public discussion", says Marić.
The Ministry of Justice for CIN-CG points out that although the Law on Notaries gave the Minister of Justice the right to appoint a notary who meets the legal requirements without clearly prescribed selection criteria, "aware of the aforementioned legal shortcomings, we tried to ensure that this procedure was carried out in a transparent manner in practice , while conducting interviews with all registered candidates and respecting the opinion of the Chamber of Notaries". They state that this practice will be continued during the next tenders.
The Chamber notes that with the introduction of the notary, the courts have been relieved of a large number of cases, that the number of litigation cases before the courts has drastically decreased, and that the results of public opinion polls have shown that citizens have the most confidence in the notary service out of all judicial professions.
Marić assesses that a greater degree of legal certainty has been achieved with the appearance of notaries, but the necessary level of legal certainty has not been achieved.
And in order to have the necessary legal certainty, it is first of all necessary to improve the system of responsibility for committed mistakes.
The database is still missing, digitization is late
The Chamber claims that every notary is electronically networked with the Real Estate Administration, which means that notaries have direct access to data in the cadastre regarding the state of real estate and real rights to it.
"Notaries directly download valid real estate deeds electronically, and the plan is to make it possible for notaries to electronically submit requests for changes to real rights on real estate in due course," the Chamber states.
For the purposes of probate proceedings, they explain, notaries have the option of electronic verification of data from public population registers, as well as from the register of the Central Bank of Montenegro.
"Of course, digitization also imposes new requirements for electronic communication and downloading data from various registers, which is the next step in the realization of digitization in the work of notaries," the Chamber concludes.
The Ministry, however, says that they are working on the Justice Digitalization Strategy 2024-2027, which will enable notaries and the Real Estate Administration to connect with each other.
Marić also notes that it is necessary to provide an efficient judicial information system (PRIS), but also that digitization at the state administration level is significantly delayed.
There is no progress in the application of ethical rules
There has been no progress in the application of ethical codes for notaries, the report of the European Commission (EC) for 2024 emphasizes.
In the Justice Strategy from 2024 to 2027, it is emphasized that it is necessary to significantly intensify the mechanisms of supervision over the work of notaries and public bailiffs' offices, but also to work in parallel on the continuous education of notaries and public bailiffs on ethical standards.
The Chamber for CIN-CG states that the Commission for Ethical Issues was established in 2021 and that it has considered only one case so far, which is still in progress.
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