Constitutional Court

KO65/19, Applicant: Ombudsperson, Constitutional review of Article 32 (paragraph 1), Article 41 (paragraph 1.3 and 1.4), and Article 76 (paragraph 2), in conjunction with Article 2 (paragraph 7) and Article 22 (paragraph 1.3) of the Law no. 06/L-010 on Notary (hereinafter:  the challenged law), which entered into force on 26 December 2018.

KO65/19, Judgment of 29 July 2019, published on 23 August 2019

Keywords: ombudsperson, institutional referral, interim measure, protection of property, notary service, languages, legitimate expectations, restriction of rights, retroactive effect of law, retirement, proportionality

The Applicant challenges Articles 32 (paragraph 1), 41 (paragraphs 1.3 and 1.4), and  76 (paragraph 2), in conjunction with Article 2 (paragraph 7) and Article 22 (paragraph 1.3) of the challenged law, stating that the above-mentioned articles are in violation of Article 5 [Languages] and paragraphs 1 and 3 of Article 46 [Protection of Property] of the Constitution.

With regard to Article 32 (1), the Applicant alleged that the article in question is incompatible with Article 5 [Languages] of the Constitution because it allows documents to be issued in other languages that are not official in the Republic of Kosovo.

With regard to Article 41 (1.3) and (1.4), the Applicant alleged that the article in question is incompatible with Article 46 [Protection of Property] because it requires from notaries to carry out several services free of charge.

With regard to Article 76 (2), the Applicant, inter alia, alleged that the article in question by retroactive effect has changed the age of retirement of notaries from the age of 70 to 65, whereupon they have been denied legitimate expectations and future benefit which resulted in violation of the right to property guaranteed by Article 46 of the Constitution in conjunction with Article 1 of Protocol No.  1 of the ECHR.

The Court, on the basis of its analysis, concluded:

i) that the Applicant’s allegations that Article 32 of the challenged law violates Article 5 [Languages] of the Constitution are ungrounded because no new obligations are imposed on the notary service, but they are rather presented exclusively as “possibility” and that their enforcement and implementation will depend on each notary public official individually The Court concluded that Article 32 of the challenged law is not in contradiction with, and does not violate the rights referred to under Article 5 [Languages] of the Constitution;

ii) that the Applicant’s allegations that paragraphs 1.3 and 1.4 of Article 41 of the challenged law are in violation of Article 46 [Protection of Property] of the Constitution are ungrounded because the legislator, following the current trends in a democratic society and, in order to promote and advance the property rights of both genders, under legal solution in Article 41 (1.3) and (1.4) provided precisely the extent to which the notary public officials should perform certain legal tasks without financial compensation. The Court concluded that paragraphs 1.3 and 1.4 of Article 41 of the challenged law are not in contradiction and do not violate the rights under Article 46 [Protection of Property] of the Constitution.

iii) that the Applicant’s allegations that Article 76 (paragraph 2), in conjunction with Article 2 (paragraph 7) and Article 22 (paragraph1.3), of the challenged Law violate Article 46 [Protection of Property] of the Constitution are ungrounded because “legitimate expectations” do not in themselves, in accordance with ECtHR practice, guarantee that the legislator cannot change the law, especially if such a change is proportionate  the Court concluded that Article 76 (paragraph 2), in conjunction with Article 2 (paragraph 7) and Article 22 (paragraph 1.3) of the challenged Law are not in contradiction and do not violate the rights under Article 46 [Protection of Property] of the Constitution, in conjunction with Article 1 of Protocol no.  1 [Protection of Property] of the ECHR.

iv) finally, the Court explained that the legislature – because of its position and democratic legitimacy – is in a better position than the Court to determine and advance the country’s economic and social policies.

iv) furthermore, the Court, taking into consideration its conclusions in relation to Article 76 (paragraph 2), Article 2 (paragraph 7) and Article 22 (paragraph 1.3), of the challenged Law, concluded that there are no legal grounds for further extension of the interim measure which was imposed on 20 May 2019, and extended on 19 July 2019.