Constitutional status of the civil law notaries

By virtue of Section 1 (4) of Act XLI of 1991 on civil law notaries (hereinafter Notaries Act) ‘Within his/her statutory competence, the civil law notary shall act as a jurisdictional authority as part of the administration of justice of the State.’ Pursuant to the Hungarian legal system the activities of civil law notaries, whether drawing up deeds or conducting non-contentious procedures – with regard to pertaining provisions of law, as well as relevant decisions of the Constitutional Court and the Curia (the Supreme Court) – fall within the sphere of public authority.

a) The Constitutional Court in its decision No. 944/B/1994 in which they also determined the position of the notariat within the Hungarian legal system states as follows: ‘Notarial activities form part of the jurisdictional power of the State. […] The notariat is part of the justice system of the State. […] As the notariat is part of the administration of justice of the State, […] accordingly its structure corresponds to that of the judicature. […][The] particular feature of the notarial profession stems from the administration of justice and jurisdictional authority.’

b) The Supreme Court in its uniformity decision in civil matters No. 3/2004 set forth the following in respect of the jurisdictional nature of notarial activities as a whole: ‘The institution of the notariat as such is that particular part of the administration of justice whose goal is to prevent disputes, thus it is legal prevention. […] [A] The public status of a civil law notary is very close to that of a judge (prosecutor). The provisions of the Notaries Act pertaining to civil law notaries with respect to the conditions of their appointment (§ 17), conflict of interest [§ 7 § (1)], decent behaviour (§ 8), the prohibition of transfer without consent [§ 20 (1)], the upper age limit for termination of service [§ 22 f)] are substantially the same as the provisions related to judges in identical issues. The disqualification of a notary shall be governed by the same provisions as those pertaining to the recusation of a judge pursuant to the Code of Civil Procedure (§ 4). […] A notary is independent similarly to a judge acting only subject to law and may not be ordered [§ 2 (1)]. The activity of a notary is vested in authenticity and public faith [§ 1 (1)], and his person is endowed with public trust (§ 8). The notary is under an obligation to be impartial and proceed unbiased [§ 1 (1), § 2 (2)].’

The Supreme Court established in the aforementioned decision that all proceedings of a civil law notary are non-contentious.

The new Fundamental Law of Hungary even extends over the above. It may be drawn as an inference from Article 25 (2) and (7) that the primary function of the courts of law is to deliver judgements in civil and criminal matters. The Fundamental Law provides constitutional authorisation that with respect to particular disputes statute may empower other out-of-court bodies to conduct procedures.[1]

The prevention of disputes is the objective of the institution which is achieved by acting as an independent authority enforcing the law, providing disinterested jurisdiction in an official capacity by means of authenticity and public faith. The notariat relieves the courts of law in two ways, thus enhancing legal certainty and the efficiency of transactions: on the one hand directly by taking over tasks which fall outside of making judgements (i.e., preparing instruments, various non-contentious procedures preventing litigation), and indirectly on the other by exercising such competences. The latter is accomplished by the fact that a right to enforcement may be exercised as a result of the notarial procedure, in particular cases the notary’s decision also has a res iudicata effect[2], and provides the parties with such compelling probative force which deters them to a considerable extent from taking legal action in the future.

Appointment and becoming a civil law notary

In Hungary due to the official nature and constitutional status of a civil law notary in exercising public authority a notary may only assume office as a result of a successful application procedure and the appointment of the Minister of Justice. Only Hungarian citizens are eligible to apply for a notarial seat. The appointment is the sole event when the notary is commissioned by the State to fulfil tasks forming part of the justice system upon the request of clients. The territorial jurisdiction of civil law notaries generally corresponds to the territorial jurisdiction of the relevant district court, they may not proceed outside such limits. The civil law notary is under an obligation to act upon the request of clients and may not consider it from a financial perspective whether it is lucrative enough or not. However, cooperation is to be declined in the event that the client’s request is deemed unlawful or has an underlying purpose to bypass the law. The number of notaries and their tariffs is governed by a regulation of the Minister of Justice.

In Hungary notaries must hold a law degree in order to qualify for a seat. Furthermore, they must obtain practice by working for a notary being employed first as a trainee (candidate notary), then following a three-year period as a deputy notary provided they have passed the bar examinations. A deputy notary acts independently under the full financial and professional liability of the notary. Subsequent to three years of such practice, the deputy may substitute the notary all on his/her own assuming full liability in case of the illness of the notary or leave, and may apply for a vacant seat.

Independence, irremovability, impartiality

The status of a notary is the closest in nature to that of a judge. The notary enforces the law independently only subject to law and may not be ordered. Every decision of the notary may be appealed - save for some exceptions - as that of a first instance court. The notary’s institutional autonomy is also reinforced by the fact that he/she may only be assigned to another seat if he/she so requests. The independence of a notary is further supported by the mandatory provision prescribing that apart from holding public office he/she may only be engaged in scientific, artistic, literary, educational, creative technical, and sports activities as a form of gainful occupation. The notary is obliged to report any such gainful occupation to the presidency of the territorial chamber.

The notary is under an obligation to act impartially. If certain circumstances apply specified by law, or cannot remain unbiased for some reason, he/she may decline to proceed with a formal decision which may be appealed against.

[1] See in detail: Adél Köblös: The Civil Law Notaries and the Fundamental Law. In Magyar Jog (Hungarian Law Journal) Issue No. 3/2014, pp. 129–136.

[2] Approval of settlements having a binding effect related to probate and other non-contentious proceedings, binding and final order for payment, conclusive decree dissolving registered partnerships.