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Entities to which International Guarantees Apply

National Notary Chamber v Albania (decision), 6 May 2008 [ECtHR]

 

Case no 17029/05

The applicant organisation complained, under Article 11 of the Convention, that the strengthened role of the Minister of Justice unjustifiably interfered with its right to freedom of association. It also relied on Article 14 of the Convention as regards the disproportionate difference in their treatment in comparison with the other liberal professions on account of the imposition of a legal retirement age by the 2004 Law. (...)

The Court notes that this application was not lodged by an individual person but by an organisation (compare O.V.R. v. Russia (dec.), no. 44319/98, ECHR 2001‑V). The Court further observes that it is not required to examine whether the applicant organisation has appropriate standing to lodge its complaints as required by Article 34 of the Convention, as the application is anyway inadmissible for the reasons set out below.
The first question the Court has to determine in the present case is whether the notary chambers are associations for the purposes of Article 11 of the Convention (see Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43, pp. 26-27, §§ 62-66).
The applicant organisation submitted that the profession of notary entailed a private law service. It argued that a notary’s status could not be equivalent to that of a public servant. It acknowledged that a notary fulfilled a public law function. This function had been granted to a notary by law and was directly governed by the State instead of being a “delegated” function.

The Court notes at the outset that the Convention institutions have consistently held that the regulatory bodies of the liberal professions are not associations within the meaning of Article 11 of the Convention (see Le Compte, Van Leuven and De Meyere, cited above, pp. 26‑27, §§ 64‑65, as regards the Belgian Ordre des médecins; Revert and Legallais v. France, nos. 14331/88 and 14332/88, Commission decision of 8 September 1989, Decisions and Reports (DR) 62, p. 309, as regards the French Ordre des architectes; A. and Others v. Spain, no. 13750/88, Commission decision of 2 July 1990, DR 66, p. 188, as regards the Spanish Bar Association; Vialas Simón v. Spain, no. 16685/90, Commission decision of 8 July 1992, unreported, as regards the Spanish Ordre des médecins; O.V.R. v. Russia (dec.), no. 44319/98, ECHR 2001‑V, as regards the Russian notary chambers; and Popov and Others, Vakarelova, Markov and Bankov v. Bulgaria (dec.), no. 48047/99, as regards two Bulgarian professional organisations of doctors and dentists). As a rule, the object of these bodies, established by legislation, is to regulate and promote the professions whilst exercising important public law functions for the protection of the public. They cannot, therefore, be likened to private law associations or trade unions, but remain integrated within the structures of the State.

The Court must examine specifically whether in the present case the National Notary Chamber is an association falling within the purview of Article 11 of the Convention or is rather a public law institution, compulsory membership of which does not constitute an interference with the applicants’ freedom of association.
The Court notes that, much like the Belgian Ordre des médecins, the applicant organisation was founded not by individuals but by the legislature. It pursues an aim which is in the general interest - namely the confirmation of the authenticity of legal deeds and contracts - by exercising under the relevant legislation a form of public control over the practice of the notary profession. Within the context of this latter function, the applicant organisation is required to keep a register of practising notaries. It is invested with administrative as well as regulatory powers.

As regards the structure of the applicant organisation, the Court notes that it is described in detail by the Notary Act. The Act sets out the structure and function of the central bodies at national and district level and the membership of those bodies.

As regards the membership of the applicant organisation, the Court notes that it comprises representatives of the district notary chambers, whose compulsory membership of the latter stems from an individual decision to practise a profession which by its nature requires particular legal regulation.

Having regard to all of the above, the Court concludes that the National Notary Chamber and the district notary chambers cannot be considered associations within the meaning of Article 11 of the Convention.

In these circumstances, the Court concludes that the applicant organisation’s complaint falls outside the scope of Article 11 of the Convention and that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.

In so far as the applicant organisation also relies on Article 14 of the Convention, the Court notes that this provision does not have an independent existence but complements other substantive Convention provisions (see Gaygusuz v. Austria, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1141, § 36). As the Court has held above that the applicant’s complaint is incompatible with Article 11 of the Convention, it cannot examine any purported link with Article 14.

Accordingly, this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4.

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