U-I-344/94

Reference no.:
U-I-344/94
Objavljeno:
Official Gazette RS, no. 41/95 and OdlUS IV, 54 | 01.06.1995
ECLI:
ECLI:SI:USRS:1995:U.I.344.94
Act:
Notaries Act (Official Gazette RS, no. 13/94 and 82/94) point 6 of paragraph 1 of article 8
Operative provisions:
The provision of the fifth paragraph of article 8 of the Notaries Act is annulled in the part according to which the condition under point 6 of the first paragraph of article 8 of the Law is not met by anyone who is subject of a criminal proceeding.
Abstract:
The restriction of the constitutional right to freedom of work or freedom to perform a profession through the prescribing of special conditions for carrying out notary work is permissible because of the protection of the rights of other persons to enjoy legal security in legal traffic, which a notary guarantees with knowledge, experience and personal characteristics. It is in accordance with the Constitution if among such restrictions is ranked the demand for demonstrating public confidence to perform notary work.

It is in conflict with the presumption of innocence and the prohibition on the impermissible restriction of constitutional rights if the legislator denies public confidence only on the basis of the existence of a criminal proceeding, because with this it prescribes a ban on obtaining a profession or damaging consequences of a criminal offence without a legally binding judgement.

It is not in conflict with the Constitution for the law to prescribe legal consequences of a judgement on the obtaining of the notary profession because of a court judgement for a criminal offence because of which a notary candidate would be unworthy of public trust, nor is the requirement in conflict with the Constitution, to establish whether on the basis of the previous life and behaviour of the notary candidate confidence is demonstrated that the notary profession will be performed conscientiously and honestly.
Password:
Freedom of work
The right freely to follow a profession
Notary work, special conditions for its performance - requirement for demonstrating public confidence.
Presumption of innocence.
Prohibition of impermissible restrictions of constitutional rights.
Legal effects of a judgement.
Administrative dispute under article 157 of the Constitution.
Retroactive effect of a law.
Socio-political suitability.
Moral-political suitability - quality.
Affirmative separate opinion of a constitutional judge.
Negative separate opinion of a constitutional judge.
Legal basis:
Constitution SRS, paragraph 2 of article 285.
Constitution, paragraph 1 of article 49, paragraph 3 of article 15, articles 27, 155, 157.
Regular Courts Act, articles 65, 75, 83, 85.
Associated Labour Courts Act, articles 31, 41.
Public Prosecutor Act, articles 31, 33.
Public Defender Act, artciles 12, 17.
International Pact on citizenship and human rights, point c of article 25.
Social agreement on implementing staff policies in SRS, articles 22, 24, 28.
Constitutional Court Act, paragraph 1 of article 40.
Note:
In the reasoning of the decision, the Constitutional Court refers to resolution U-I-110/77 of 2/4-1981.
Document in PDF:
The full text:
U-I-344/94-19
1/6-1995


RESOLUTION

At a session held on 2/2-1995, in a proceeding for assessing constitutionality commenced on the initiative of Sergi Vladislav Majhen from Maribor, the Constitutional Court
 
reached the following decision:

The provision of the fifth paragraph of article 8 of the Notaries Act is annulled in the part according to which the condition under point 6 of the first paragraph of article 8 of the Law is not met by anyone who is subject of a criminal proceeding.

Reasoning
 
A.

1. The initiator impugns the provisions of the fifth paragraph of article 8 of the Notaries Act (hereinafter: ZN), because he believes that it is not in accordance with the provisions of articles 15, 49 and 155 of the Constitution. The initiator believes that in the part which refers to behaviour on the basis of which it would be possible to reach a conclusion about the honest and conscientious performance of the position of notary, the provision represents establishing the "moral-political suitability", for which neither a procedure is prescribed nor is the public establishing of behaviour envisaged. In the view of the initiator, it is not defined what behaviour is considered, but the negative prognosis which it contains is claimed to be at least in the service of daily politics, because of which the restriction of the freedom of work in such a way is claimed to be impermissible.

2. The part of the text of the impugned provision that refers to a criminal conviction is in conflict with the Constitution in the view of the initiator because it does not state from when a criminal conviction should be taken into consideration. In the opinion of the initiator, recognising a court judgement from the period of SFRY would mean recognition that SFRY was a state governed by law. It is thus claimed to be a violation of the principle of exercising and restricting rights as determined by article 15 of the Constitution, since the legal consequences of a judgement of an illegitimate regime and state not governed by law would be extended to the field of rights and a legal state.

In addition, this is claimed to be the recognition of the reflexive validity of law, although the ZN does not explicitly determine that their provisions have retroactive effect. In the view of the initiator, the ZN would have to determine that only criminal convictions since the independence of Slovenia or from the promulgation of the Constitution or from the taking effect of ZN, should be taken into consideration. The initiator proposes that the Constitutional Court find the impugned provision in conflict with the Constitution.

3. The National Assembly replied to the initiative. It believes that the concept of public trust does not mean assessing the moral-political suitability of candidates, but assessing their personality in the sense of honesty. A future notary should show by his behaviour that clients will be safe, that the notary will behave honestly and that they can therefore trust him. Because of assessing the candidates previous life on the basis of verifiable facts the legislator is said to have defined with the impugned provision, criteria by which it would be possible to assess whether the candidate is worthy of public confidence. In the opinion of the National Assembly, this is not establishing or proving criminal responsibility but only on the basis of judgment whether legally prescribed conditions have been met or not. Because of this, it is said not to be possible to extend to the impugned provision the constitutional principle of the presumption of innocence, which in the opinion of the National Assembly can only refer to criminal responsibility or to criminal proceedings against a concrete person, charged with criminal behaviour.

B.

4. At a session held on 9/2-1994, the Constitutional Court accepted the initiative for assessing the constitutionality of the fifth paragraph of article 8 ZN and pending that decision, restrained implementation of the part of the cited provisions according to which the condition under point 6 of the first paragraph of article 8 ZN is not fulfilled by anyone who is the subject of criminal proceedings.

5. ZN determines in the first paragraph of article 8 conditions which must be fulfilled by persons who are candidates for occupying the position of notary, including the condition that a candidate be worthy of public trust for performing notary work (point 6). In the fifth paragraph of article 8, this condition is divided into three elements, the fulfilling of which lead to the finding of whether the person fulfills the conditions. These three elements are: a) anyone who is the subject of criminal proceedings (for a criminal offence because of which s/he would be morally unworthy to perform notary work), b) anyone who has been convicted of a criminal offence because of which s/he is morally unworthy to perform notary work and c) anyone who behaves such that it is possible on the basis of their behaviour to reach the well-founded conclusion that s/he will not honestly and conscientiously perform notary work.

6. The office of notary is a public service, the purpose of carrying out which is the security of legal business. This is an important general good, because of which it is permissible - in accordance with the principle of comparativity - to restrict the constitutionally guaranteed right to work, in this case the right freely to carry on work or a profession (first paragraph of article 49). The Constitution determines in the third paragraph of article 15 that human rights and fundamental freedoms shall be restricted only by the rights of others and in cases determined by the Constitution. The right freely to carry on the notary profession is restricted by the rights of others, in order for them to enjoy legal security in legal business, which a notary guarantees with knowledge, experience and personal character. The free choice of a profession also applies for a notary, although this freedom is restricted to the right that public service is open to anyone under the same conditions (point c of article 25 of the International Treaty on citizenship and human rights; Official Gazette SFRY, no. 7- 35/71), that it may not under these conditions be forbidden them, and they may not be forced into it. The legislator is justified in determining limiting conditions of either an objective (e.g. business premises) or subjective nature for professions which are performed as a public service. Among those of a subjective nature belong personal character, personal suitability, which provides a specific guarantee of the honest and conscientious performance of the public service and against the abuse of the profession on behalf of clients. These restrictions are determined for individual professions, so such an arrangement is not in conflict with the Constitution, if and insofar as individual restrictions or conditions are determined in such a way as allows judicial review, since a decision on whether a person meets legislatively prescribed conditions for performing a service means a decision on their rights determined in the third paragraph of article 49 of the Constitution and the already cited International Treaty. So determining conditions of public confidence for performing notary work is not in itself in conflict with the Constitution, insofar as it is determined in accordance with the above guidelines, and it may also not represent criteria for moral-political suitability. This was defined under the previous system such that it allowed privilege or discrimination in relation to ideological or political convictions and activity.

7. The institution of "socio-political suitability" was a key and indispensable instrument of repression for maintaining the authority of the monopoly political party in the former totalitarian system. In procedures for deciding on the accessibility to working posts and to public positions, candidates had compulsorily to demonstrate their suitability in relation to "socio-political criteria". The Social Contract on implementing personnel policies in SR Slovenia (Official Gazette SRS, no. 20(79) became the principle and the standard for staff appointments for performing the most responsible functions in bodies of socio-political organisations, socio-political communities in basic organisations of associated labour, in self-management interest groups, local communities, social organisations and societies and in all other organisations and communities (article 22). It is clear from this article that this Contract covers practically all forms of activity in society. In the choice of personnel, it was in particular necessary to bear in mind that candidates had to demonstrate an ideological commitment to socialism in their work, to realising the historical interests of the socialist democratic system, that they had a positive attitude to the socialist revolution, realising the concept of social self-protection, and that they demonstrated a creative commitment to building the socialist self-management saystem (article 24). Individual topical questions and proposals for concrete personnel solutions and defining the wider socialist interest in concrete staff solutions were dealt with and adjusted by the coordination committee for personnel questions at the presidency of the republican, municipal, urban and coastal conferences of the socialist league of working people of Slovenia (article 28). The cited social contract was defined in a similar way to the content of the notion of socio-political suitability, as was defined contextually both in the decision on the initiative of Oto Vilčnik, who impugned the constitutionality of the Social Agreement on basic personnel policies on the territory of Ljubljana municipality (Official Gazette SRS, no. 11/76), and by the Constitutional Court of SRS in the reasoning of Resolution no. U-I-110/77-18 of 2/4-1981, that the initiative was not accepted. It is cited in the reasoning that social standards are one of the elements guiding personnel policies. It also mentioned among them the attitude of the candidate to the socialist revolution, to brotherhood and unity of the Yugoslav nations and nationalities and commitment to the development of self-management relations and the division of labour. These standards in the opinion of court had their foundation in basic constitutional principles, in the first and second section of the basic principles of the then Constitution.

8. The Constitution of the Socialist Republic of Slovenia (Official Gazette SRS, no. 6/74) in the second paragraph of article 285 requires in the procedure for the appointment of judges a finding of their moral-political suitability for performing the judicial function. The Law on Regular Courts (Official Gazette SRS, no. 10/77, 4/82, 37/82, 7/86, 41/87 and 24/88) realized the constitutional principle such that socio- political suitability is defined as a mandatory condition for the appointment of a judge (article 65). It was possible to remove a judge before the end of his term of office if it was established that he was morally-politically unsuitable (article 75). Moral-political suitability was also a mandatory condition for the appointment of juries (article 83). If they became socially-politically unsuitable, they could be removed (article 85). Entirely identical conditions were determined by the Law on courts of associated labour (Official Gazette SRS, no. 38/74, 7/86 and 41/87) for the appointment of judges in these courts (article 31) and for their removal before the expiry of their term (article 41), by the law on the public prosecutor's office (Official Gazette SRS, no. 10/77, 7/86 and 41/87) for a public prosecutor (article 31), for their premature removal (article 33), the Law on the public defender (Official Gazette SRS, no. 19/76 and 31(84), for the appointment of the public defender (article 12) and his premature removal (article 17), to mention only the most important public legal functions.

9. The demonstrated normative arrangement, in which "morality was changed into a tool of politics" and "idealism was reduced to the level of institutionalised hypocrisy" (see: Zbigniew Brzezinski, Izven nadzora (outwith control), Ljubljana, 1995, p. 56), meant partly a direct, partly a hidden form of permanent threat to human rights. From no point of view is it possible to equate it with criteria, generally valid in democratic countries, which persons in public positions must meet in order for people to trust them. So also the unconvincing claim of the initiator is rejected that it is a reintroduction of the former criteria on socio-political (un)suitability, since from the above mentioned the contextual and legal difference between the two concepts in their social context is clearly evident.

10. There is a requirement for notaries to be conscientious and honest. This requirement is expressed in the form of a general clause, since it is a generally accepted value which is concretised in an individual case. It is not a closed catalogue of values, but its content is supplemented with practice. In legal relations it is the establishment of realisable, legislative and morally acceptable legal business, preventing harm to the participants in legal business and the abuse of rights, ensuring the balance of interests between the interests of the parties to a contract. A notary is not a representative of a party, but a person who should be trusted by both contract parties (thus the requirement of "public" trust). In accordance with the above cited, individual elements which bind the competent body in establishing the conditions for a notary in assessing whether such a condition is met, must also be determined.

11. A decision that anyone against whom a criminal charge has been laid does not meet this condition, requires from the body which is responsible for establishing the condition of worthiness of trust that it refuses anyone who is the subject of criminal proceedings at the time of the procedure of appointment, the possibility of applying with others for the post of notary. The intention of this legal provision is to ensure the security of people who entrust business to a notary.

If the arrangement were to be sustained that a criminal charge itself established unworthiness for performing notary work, it would later be possible to establish that there was no such unworthiness because it could be shown that an innocent person was in fact the subject of criminal proceedings. With this, a criminal proceeding itself would have effected a legal consequence in the sense of restricting constitutional rights, in this case the right to be a candidate under equal conditions with others for public service.

12. The presumption of innocence undoubtedly determines above all the position of innocence in a criminal proceeding, but it also has an influence on other procedures on which the question of the perpetration of a criminal offence has prior effect, in the sense that prior to a final court judgement, no harmful consequences can be created for an individual, especially not such that, outwith cases under the third paragraph of article 15 of the Constitution, could mean a restriction of constitutional rights. The decision of a criminal proceeding as a negative condition for the existence of public trust, in relation to the above mentioned, is in conflict with the presumption of innocence, determined in article 27 of the Constitution, and the prohibition of impermissable restriction of constitutional rights under the third paragraph of article 15 of the Constitution, so it was necessary to annul this part of the impugned provision. The remaining part of the impugned provision is not in conflict with the Constitution.

13. The impugned provion, in the part cited in point b) of paragraph 5 of this reasoning, represents a legal consequence of a conviction which is that it means the prohibition on obtaining a specific profession. The legalisation of such a legal consequence is constitutionally permissible for the reasons already cited and is thus not in conflict either with article 49 or the third paragraph of article 15 of the Constitution. The provision is also not in conflict with article 155 of the Constitution on the prohibition of the retrospective validity of regulations, since it is not a legal consequence which would have the nature of a penal sanction, but a condition which a person must fulfill who applies for a position in public service. This judgement thus does not refer to the question of punishment for an offence committed but the question of a value judgement of the personal suitability and (or) the conscientiousness and honesty of those to whom is entrusted care of the security of legal business.

14. The principle of conscientiousness and honesty in performing notary work is one of the basic principles by which a notary must behave. A guarantee of their honestly and conscientiously performing the notary profession must thus be established prior to appointment as a notary. This guarantee can be based only on a notary's life and behaviour during a specific time prior to the judgement of the candidature it order for it to be possible to estanlish trust at the time of appointment. If it is later shown that these conditions are no longer met, the notary will be removed on the basis of point 7 of the first paragraph ofZN.

15. The condition of conscientiousness and honesty undoubtedly belongs among the conditions for performing the profession of notary, as well as other professions in which, because of the safeguarding of the general well-being or the protection of a wider circle of rights of third persons, it is permissible to prescribe such conditions for obtaining a profession. Capacity and reliability, conscientiousness and honesty in performing specific professions are criteria which are also demanded in other countries for performing such professions as notary, attorney, tax inspector, auditor, etc. According to the rule of the European Union, the findings of state bodies on these criteria are also respected in other countries and are not established anew. This is not a criterion which can be identified with moral-political suitability as was recognised in the former legal system and which can be used as political criteria for personnel selection. Guaranteed legal security in an administrative dispute on the basis of the second paragraph of article 157 of the Constitution and in a constitutional appeal is the guarantee that the use of the criterion of conscientiousness and honesty will not be abused to the detriment of human rights.

C.

The Constitutional Court adopted this resolution on the basis of the first paragraph of article 40 of the Constitutional Court Act (Official Gazette RS, no. 15/74), composed of: president Dr. Tone Jerovšek and judges Dr. Peter Jambrek, Mag. Matevž Krivic, Mag. Janez Snoj, Dr. Janez Šinkovec, Dr. Lovro Šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič. The resolution was adopted with seven votes against two. Judges Krivic and Zupančič voted against and gave a negative separatze opinion. Judges Šinkovec and Ude provided an affirmative separate opinion.


President
Dr. Tone Jerovšek
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Sergij Vladislav Majhen, Maribor
Date of application:
23.12.1994
Date of decision:
01.06.1995
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN00901