The public notary system has been introduced into Serbia by the Law on Public Notaries. The legislator's intention – declaratively standard: to lighten the burden on courts and thus increase their efficiency, and to improve legal certainty.
However, the Law itself, together with its accompanying regulations set (enacted just before the application of the Law was to begin), has in practice and in an unusually brief period of time, in the opinion of the professional and a large part of the lay public as well, highlighted a number of flaws and legal ambiguities (crucially impacting legal certainty). Thus numerous comments, publicly voiced opinions and reactions have pinpointed certain functional aspects of the Law and the accompanying regulations set and their inconsistencies in application in practice, most notably relating to: jurisdiction conditional upon geographical location, temporary number of public notaries, establishing a professional association of public notaries, appointment of public notaries by administrative act of the competent Minister without right to appeal, taking over matters in the domain of legal practice (without permitting legal practitioners to deal in these matters), tariffs far exceeding what the public can afford to pay, and so forth.
Therefore a sizable segment of the professional public – certain law school teachers and almost the entire professional association of attorneys (attorneys-at-law, attorney associations, the Bar Association of Serbia) has, through their institutional bodies and membership and within the applicable legal framework, initiated a series of negotiations and professional consultations with the competent Ministries of the Serbian Government, filed around 76 initiatives with the Constitutional Court for assessing the constitutionality of the Law on Public Notaries, the Law on Transfer of Real Estate, Law on Extra-Judicial Proceedings and Law on Legalization of Signatures, Transcripts and Manuscripts, and initiated a number of other formal procedures aiming at, inter alia, amending the Law on Public Notaries and the accompanying regulations set "without harming the essence of the introduced public notary system."
It should be noted that the "contested provisions of the Law" have previously been criticized by international professional organizations as well, and by the Anti-Corruption Council.
The untimely, inadequate and from time to time indignation-inspiring reaction of the competent authorities, whatever inspired by, has had a multiply least desired result – attorneys going on strike.
After a series of unsuccessful negotiations between the expert teams of the attorneys and the competent Ministry, and the enacting of non-essential amendments to the Law on Public Notaries, no adequate solution that would give an essential, qualitative result founded on the law was reached for almost 4 months, resulting in a 4-month suspension of operation of Serbian courts. Unofficial estimates indicate that around 240,000 hearings were postponed or not held in that time.
After almost 4 months of attorneys' strike, exaggerated and targeted media attention, daily presence in the public eye, a real problem regarding acting in criminal matters and blockage of the judicial system, on January 8th, 2015 the expert teams of the Bar Association and the competent Ministry announced their agreement on amendments to the Law on Public Notaries, the Law on Transfer of Real Estate, Law on Extra-Judicial Proceedings, the Family Law and Law on Inheritance, as well as on withdrawing the law on Free Legal Assistance from procedure.
After conducting the legal procedure and adopting the agreed amendments (urgent enactment of these amendments by the Serbian National Assembly is expected), the following major results have been achieved:
- notarial deeds will no longer be compulsory for all agreements relating to real estate transactions;
- in the form of notarial deeds public notaries will prepare real estate-related contracts only in the case of persons lacking legal capacity, persons who cannot see, hear, speak, read and write, and also financial support contracts;
- mortgages contract and declarations of pledge may be prepared in the form of notarial deeds if they contain a clause that enforcement or foreclosure (judicial or extra-judicial) can be carried out directly upon maturity, on the grounds of the mortgage contract or declaration of pledge;
- for other legal transactions or private documents prepared by citizens themselves or by attorneys at law, notarial certifications will be in the form of solemnization clauses;
- by the solemnization clause the public notary, according to the agreement, confirms that the parties have been read the contract in the notary's presence, that the parties have declared that the contract is a true and full expression of their will, and that they have personally signed the document;
- harmonizing the tariffs of public notaries and attorneys at law.
This reached agreement will also bring an end to the attorneys' strike, possibly as early as January 18th, 2015.
By Milos Zebic, Consultant, JPM Jankovic Popovic Mitic