The second paragraph of Article 107 of the Notaries Act stipulates that the Notaries’ Association of Slovenia shall set the rates for the remuneration of notaries by agreement with the minister responsible for justice. The legislator wished in this way to ensure that the setting of notaries’ rates would not only take into account the interest of the notaries but also public interest. The office of notary is a public service, while notaries are persons holding public confidence who provide their services on the basis of a licence from the state. In certain cases when arranging his legal affairs the individual has to make use of the services of notaries, who thus have a kind of monopoly in the area of their activities. Setting notaries’ rates cannot therefore be free or left merely to notaries themselves or to their professional association. The cogent provision of the law requiring the agreement of the Minister of Justice in the setting of rates for the remuneration of notaries is an expression of a social country governed by the rule of law that the accessibility of notaries as a public service is guaranteed under equal conditions for all citizens.

Notary’s services are evaluated and calculated according to the notary’s tariff. The price of notary’s services is determined in the tariff by the number of points. It is measured by taking into account the value of the point such that the amount of points for an individual notary’s service is multiplied by the value of the point. The value of the point is therefore one of the elements for setting the notary’s tariff. The price of a service carried out by a notary thus depends on the value of the point, which is determined in the third paragraph of Article 11 of the notary’s tariff.

Setting the tariff for the remuneration of notaries as per the second paragraph of Article 107 of the Notaries Act thus also includes changing the value of the point which according to the notary’s tariff serves to fix the price of notary’s services, i.e. the fees for work done by a notary. This means that the law also requires the consent of the Minister of Justice for a change in the value of the notary’s tariff point.

The fifth paragraph of the notary’s tariff does not stipulate that the executive committee of the Notaries’ Association of Slovenia shall rule on changes to the value of the point in agreement with the minister responsible for justice. For this reason this provision of the general act of the notaries’ association is in our opinion incompatible with the second paragraph of Article 107 of the Notaries Act.

The executive committee of the Notaries’ Association has passed two resolutions on changes in the value of the point, which were published in the Official Gazette of the Republic of Slovenia, No. 6/97 (an increase to 76.50 tolars) and No. 65/98 (an increase to 87.40 tolars) respectively. By changing the value of the point the resolutions set the notary’s tariff, but they were not passed with the consent of the minister responsible for justice. The change in the notary’s tariff was made without his consent, which is contrary to the second paragraph of Article 107 of the Notaries Act. Thus the resolutions are also incompatible with this provision of the law.

According to the third paragraph of Article 153 of the Constitution of the Republic of Slovenia executive regulations acts and other general acts must be in accordance with the constitution and laws. Since the fifth paragraph of Article 11 of the notary’s tariff and the resolutions on changes to the value of the point are not in accordance with the law, neither are they in accordance with the constitution.

Ombudsman warned the Minister of Justice and the Notaries’ Association of Slovenia of the questionable constitutionality and legality of the cited provision of the notary’s tariff and the resolutions on the change to the value of the point. Unfortunately there was no response in the shape of changing the general acts mentioned. The Human Rights Ombudsman therefore lodged a request for an assessment of constitutionality and legality, with a proposal that the Constitutional Court of the Republic of Slovenia rule on the constitutionality and legality of the fifth paragraph of Article 11 of the notary’s tariff and the executive committee of the Notaries’ Association’s two resolutions on changes to the value of the point, and annul them.