Topic: Notary System in Kosovo

Asmir Sadiku

Electronic copy available at: http://ssrn.com/abstract=2417259

 Table of Contents

Table of Contents.................................................................................................................2
Introduction..........................................................................................................................3
1. Definition of notary..........................................................................................................3
2. The purpose of the paper..................................................................................................4
3. Methodology of Work......................................................................................................4
4. Principles of Notarial System..........................................................................................5
4.1. Principles related to notaries and their functions.........................................5
4.1.1. The independence and impartiality of the notary.....................................5
4.2. Principles related to notarized documents...................................................6
4.2.1. Legality of notarial acts............................................................................6
4.2.2. The right of the parties to obtain copies of original acts..........................6
4.2.3. The execution of notarial acts..................................................................7
4.3. Principles that apply to the organization of the notarial system..................7
4.4. Principles related to notarial ethics..............................................................8
5. Conditions for the exercise of the function of a notary in Kosovo..................................9
6. Inability to exercise the function of a notary.................................................................10
7. Cessation of duty, suspension of a notary......................................................................11
8. Notary Office Services...................................................................................................12
9. Notary fees.....................................................................................................................14
10. Conclusions..................................................................................................................15
11. Literature......................................................................................................................16

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Electronic copy available at: http://ssrn.com/abstract=2417259

 Introduction

1. Definition of Notary

Notary is a public and legal service established by the Law on Notary of the Republic of
Kosovo. This service is provided by notaries. Notaries are professional jurists, public
officials, appointed by the Ministry of Justice to exercise the activities defined by law.
The Law on Notary regulates the organization and functioning of a notary office as a
public activity in Kosovo, conditions and methods of work, as well as other issues that
are important in exercising the duties of a notary. The notary exercises its function within
the scope of the law, respecting the code of Notary Ethics and Professional Conduct, in
accordance with the oath taken. Despite the public nature of the service, the notary
exercises its functions in an impartial and independent manner.
Notary services include the provision of all sorts of legal services or undertaking all sorts
of legal actions that are non-contentious in nature, in the interest and in accordance with
the will of the parties, the purpose of which is the protection and realization of rights and
legitimate interests of the parties, providing assurances for the parties, and avoiding
possible disputes.
With the Law on Notary, Law no. 03/L-010, adopted by the Assembly of the Republic of
Kosovo on October 17, 2008, promulgated by President’s Decree No. DL-053-2008,
dated: 06.11.2008, Kosovo laid the foundations for the establishment of the notarial
system in Kosovo, which became functional starting from May 2012. The Ministry of
Justice, as the competent authority, in collaboration with the Swiss Notary Institute
organized the training and exam for the notaries, and has certified the first three groups of
notaries in Kosovo.
The notarial system represents an innovation for the justice system in Kosovo, and
therefore the purpose of this paper is to provide information about the functioning of the

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notary system in Kosovo, the key principles of the notary system under the Law on
Notary, as well as the main functions (services) of a notary office.

2. The purpose of the paper

The purpose of this paper is to explain current developments in the notary system of the
Republic of Kosovo, and this will be done through scientific (doctrinal) research and
through review of legislation (law and other legal acts).

Although we could write much more about the notarial system, however, this paper will
address the main issues concerning the notarial system in the Republic of Kosovo.

3. Methodology of Work

I will use the following methods in the drafting of this paper: legal method, sociological
method, the method of analysis and synthesis, comparative method, historical method,
statistical method, etc.

To achieve the objectives and the successful completion of this research, particular
importance will be given to the collection of data from sources consulted on the
functioning of notary system in Kosovo, which is in its consolidation phase.

Particular importance will be given to the comparative method, through which we will
compare the legislation (legal basis) which regulates the notary system in Kosovo, in the
region and in the European countries with the Latin notary type.

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 4. Principles of Notarial System

Notary systems of Latin type, part of which claims to be the notarial system in Kosovo,
are based on some similar principles that will be addressed below, and these can be
divided into four groups:
1) Principles related to notaries and their functions;
2) Principles related to notarized documents;
3) Principles related to the organization of notarial system;
4) Principles related to notarial ethics.

4.1. Principles related to notaries and functions of a notary

One of the questions that are expected to be explained by this principle is the definition of
the notion of a notary. The notary is a professional jurist i.e. a public official appointed
by the state or as the law specifies by the Ministry of Justice, which exercises the duty of
a notary as defined by law.1
The functions of a notary usually consist of advising the parties about the legal aspects of
actions, their legal affairs, to understand the will of the parties and based on their will
draft contracts, as well as legal work in accordance with legal requirements, so that they
give the character of authenticity (unique act) to the drafted acts, as well as provide other
legal services within the legal possibilities in order to satisfy the interests, rights and legal
needs of the parties.

4.1.1. Independence and impartiality of the notary

This is one of the main principles of the notarial system of each country. Although the
notary enjoys the status of a public official, he/she performs his/her activities
independently and impartially. The notary exercises his/her function in the best interest of
two or more parties involved and is obliged to provide advice to the same in interpreting

1
See Article 2 Paragraph 2 of the Law on Notary, adopted by the Assembly of Kosovo on: October 17th,
2008.

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the will of the parties. The law stipulates the obligation of the notary to refrain from
exercising the notarial function when there is the possibility of lack of objectivity or the
avoidance of conflict of interest in performing notarial functions. 2
Counselling an uninformed party is in the function of ensuring the impartiality of the
notary, the notary advises and helps in providing explanations to the party that is
uninformed and which is in an inferior position in relation to the other party in the
transaction.

4.2. Principles related to notarized documents

4.2.1. Legality of notarial acts

When applying this principle the notary establishes that the parties of a notarized act are
capable and authorized to undertake and conclude a certain legal transaction. The notary
established their true purpose. He or she then provides the necessary legal assistance to
the parties, providing them explanations about the applicable law and the legal effects of
the transaction under consideration. The notary then prepares the relevant notarized acts,
wherein he or she formulates the respective legal transaction through clear and
unambiguous statements.3

4.2.2. The right of the parties to obtain copies of original acts

Except in situations where the original notarized document provides otherwise, certified
copies or usual copies of the original document concerning the legal transaction between
living persons, can be issued to the parties upon their request, to the parties who have not
received a notification or to their representatives, to other universal legal heirs or
successors. Notarial acts are executed through en – minute and en – brevet acts. When it
comes to drafting en minute acts, the original act is kept in the archives of the notary, as

2
Article 32 paragraph 1, Article 33 of the Law on Notary.
3
Bulletin of the Chamber of Advocates "Advocacy" year: VII, no.13/2012, written by Mr.Sc. Sefadin
Blakaj, Notary, p. 151-158.

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required by law, while copies identical to the original are issued to the parties, confirming
that this copy was copied from the original of the act in question.

4.2.3. The execution of notarial acts

A notarized document and prepared in accordance with the relevant procedures is directly
applicable, provided that it includes valid mandatory provisions agreed upon by the
parties, as well as the statement of the party which is required to perform certain actions,
to the effect that direct and binding enforcement of the obligation can be made in
accordance with the notarized document, when the maturity of the obligation is reached.4
In assessing the validity of the notarial acts issued by a foreign country, reciprocity
measures apply.

4.3. Principles that apply to the organization of the notarial system

The Ministry of Justice as the competent authority for the certification of notaries
determines the territorial distribution of the notary offices, and does this after
consultation with the Chamber of Notaries and in accordance with these principles there
will initially be at least one notary office in a municipality, but this number could
increase in the municipalities with more than twenty thousand (20,000) inhabitants,
taking into account the number of documents processed by the relevant notarial offices
during the year.
The Law on Notary defines the conditions and criteria to be met by a person in order to
exercise the profession of a notary.
The law requires that notaries are organized in a collegial body, namely the Chamber of
Notaries, a body that has the status of a legal person of public law, and which, in addition
to protecting the interests of the profession will have significative authority in the
provision of notary services in accordance with the requirements of the Law and the
protection of the interests of the public.

4
Articles: 56, 57 and 58, paragraph 1, of the Law on Notary.

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4.4. Principles related to notarial ethics

Notaries are subject to an audit by the Ministry of Justice and the Chamber of Notaries,
namely the arbitration and disciplinary council as a body which operates within the
Chamber, which decides on complaints against notaries in disciplinary matters submitted
by members of the public or other notaries, commission or audit committee.
In exercising their functions notaries must act in good faith and integrity. Therefore
before taking office they take the oath that is administered by the Ministry of Justice, in
the presence of the president of the Supreme Court and the President of the Chamber of
Notaries, which states:
"I swear that I will perform my duties conscientiously, honestly and impartially, in
accordance with the Constitution and Laws of the Republic of Kosovo, code of notary
ethics, acting professionally and protecting the interests of the parties at all times."
After administering the oath, the Ministry of Justice or the person authorized by the latter,
issues the license to the Notary.5
The law provides that a party may chose the notary, whose services it intends to use. In
exercising their profession, notaries are obliged to apply the highest professional
standards and standards of ethics of the profession. Such an obligation also stems from
the text of the notaries’ oath.

5. Conditions for the exercise of the function of a notary in Kosovo

Kosovo Law on Notary in Article 4 paragraph 1 and sub-paragraphs 1-7, paragraph 2 and
paragraph 3, provides:

The duty of a notary may be exercised by a person who meets the following conditions:

1) Should be a permanent resident of Kosovo;

2) should have the qualifications to operate;
3) should enjoy good professional and moral reputation

5
Articles: 8, 11, 70, of the Law on Notary.

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 4) should have graduated from one of the Law Faculties in Kosovo or in any Law
Faculty of another country after verification of the diploma in the Republic of
Kosovo;
5) should have practiced the profession of a jurist in institutions, organizations and
other entities for a period of 3 years;
6) should have passed the notary exam in Kosovo;
7) should prove that he/she is in a position to secure the required facilities and
equipment for the exercise of the function of a notary in the manner prescribed by
law, in accordance with the criteria set out in bylaws, after consultation with the
Chamber of Notaries.6

A person who has worked more than 3 years as: a teacher of legal subjects in one of the
Universities in the country or abroad, a judge, prosecutor, lawyer and notary, is exempted
from undergoing notarial practice as set out in section five (5) of this Article.

6. Inability to exercise the function of a notary

The duties of a notary may not be performed by the persons:

a) who are sentenced for deliberate criminal offense which is punishable with
imprisonment of at least three (3) months, or for any offense related to the
unlawful acquisition of profits or forgery;
b) who are deep in debt or bankrupt, as long as this situation lasts;
c) who are active members of any political party or serve a religious community;
d) who were dismissed from the duty as a judge or civil servant with the decision of
the competent disciplinary body;
e) who were disbarred with the decision of Kosovo Chamber of Advocates;
f) against whom criminal prosecution was initiated for deliberate offenses which are
punishable with imprisonment of at least three (3) months, or for any offense
related to the unlawful acquisition of profits or forgery, until the charges against
them are dropped, or until their acquittal.

6
see Article 4 of the Law on Notary.

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Any person who meets the requirements for a notary under Article 4 of the Law on
Notary may be a candidate to become a notary. The Chamber of Notaries organizes the
competition for notary candidates. The conditions and procedure for such competitions
are determined by the Ministry of Justice after consultation with the Chamber of
Notaries.7

The Ministry of Justice supervises the notary examination and its organization and issues
regulations to this effect. Notary examination committee is appointed by the Ministry of
Justice in consultation with the Chamber of Notaries, and the same organizes the notary
exam and performs the assessment of candidates.

The notary examination committee consists of seven (7) members. Four (4) notaries, one
(1) judge, one (1) law professor and one (1) lawyer, member of the Chamber of
Advocates. Each member of this committee will have a substitute of the same
profession.8

The notary exam consists of an oral and written part, and consists of at least the following
subjects: the law of obligations, property law, family law, inheritance law, commercial
law, law on civil procedure, laws and regulations relevant to the notary service, cadastre
law.9

7. Cessation of duty, suspension of a notary

A notary may be appointed to exercise his/her functions, but he/she may also cease to
exercise his/her function, may be suspended or may resign.

A notary may be dismissed or discharged of his or her duties in these cases:

1) due to death;

7
Mr. Sc. Sefadin Blakaj, notary, Notary Service of Kosovo.
8
Articles 5, 6 and 7 of the Law on Notary.
9
Notary Exam Programme, 2012, drafted by the Ministry of Justice of the Republic of Kosovo.

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 2) with his/her resignation, once such resignation takes effect;
3) after reaching the age of 70;
4) if he/she no longer meets the eligibility requirements for the notary services, or in
cases when after the appointment of a notary it is established that any of these
requirements were not met at the time of his/her appointment;
5) upon appointment on another position;
6) due to non-renewal of his/her professional liability insurance, or due to the failure
to pay the fee to the Chamber of Notaries for such insurance;
7) due to failure to assume office within three (3) months after the publication of his
or her appointment in the Official Gazette of the Republic of Kosovo;
8) due to health reasons, which can impede the performance of his/her official
duties;
9) as a result of disciplinary proceedings under the circumstances described in
Article 75, paragraph 4 of the law on notary.10

The decision to dismiss a notary of his or her duties is issued by the Ministry of
Justice in consultation with the Chamber of Notaries.

The notary may resign at any time after filing a written request in regards to this to
the Ministry of Justice. The Ministry of Justice takes a decision for such a request
within three (3) months from the publication of the request for dismissal, after
consultation with the Chamber of Notaries. After this three (3) months period expires
and in the absence of a decision on the request for dismissal, it will be deemed that
the Notary is released from duty.

The notary may be temporarily suspended when legal proceedings are initiated which
may deprive the Notary of his ability to operate, when the conditions are met for the
release of a notary from his or her duties, when the Notary is absent in his or her
offices for more than five (5) working days without notifying the competent
authority, or for more than ten (10) working days without the approval of the

10
Articles 22 and 23 of the Law on Notary.

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 competent authority, at the request of the Notary who wishes to engage in individual
professional development, or for other valid reasons.

8. Notary Office Services

Notary services are the public services which until May of 2012 were carried out by
courts or other state institutions, which are now delegated to notaries in order for
these services to be closer to the citizen.

Notary office functions are prescribed in Article 29 of the Law on Notary in Kosovo:

1) Processing of certain documents as stipulated in Chapter VII of this law, in order

to;

- secure proof for the statements contained therein, as they are made by the
parties before the Notary, approval of which is evidenced by the signature of
the parties;
- ensure direct executive force for the legal transactions contained therein;
- confer validity on certain legal transactions, in respect of which this and other
laws foresee mandatory processing, so that such transactions have legal effect;
- confirmation of facts and certification of signatures, transcripts and copies of
documents and recognition of statements given under oath;11
- securing storage of cash, bills, checks, public bonds and other valuable papers,
documents or other things;
- dealing with all inheritance uncontentious proceedings;
- provision of legal assistance;
- compilation and verification of contracts;
- certification of copies of original documents;
- certification of extracts of business trade books;
- certification of signature;
- certification of date;
- certification that the person is alive;
11
Article 29 of the Law on Notary.

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 - receipt of sworn statements.

Performing other duties in accordance with their main functions and general obligations,
with their consent, as ordered by a court or governmental or administrative bodies. Such
duties may include:

- signing and stamping of assets allocated in the context of inheritance and

bankruptcy procedures;
- estimation, public auctioning and auction sales of movables and real estate in
non-contentious proceedings, particularly in cases of voluntary sales;
- allocation of the sales price in the context of executive proceedings.12

Documents need to be notarized in the following legal transactions, under the threat of
cancellation:

- transfer or acquisition of ownership or other real rights over immovable

property;
- establishment of a mortgage of real property;
- marriage contracts and agreements regarding property between spouses or
people who are in an extramarital relationship;
- establishment of corporate bodies and business companies as well as the
establishment and amendment of statutes of such bodies and companies.

9. Notary Fees

The administrative instruction 02/2012 of the Ministry of Justice has established

provisional notary fees which are obligatory for all notaries and notary offices in the
Republic of Kosovo.

The notary receives the fees in exchange for services rendered and for reimbursement of
expenses incurred in connection with them. Notary fees are determined by the Ministry of
Justice in consultation with the Chamber of Notaries.

12
Articles 20, 30, 43, 44, 45, 46, 47, 50, of the Law on Notary.

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The notarial monetary fee is a monetary value paid for the services related to notarial acts
and relevant legal or technical services performed by a notary. The notarial act is a
professional act issued by the notary. For the provision of notary services, a notary is paid
according to the fees determined by the administrative instruction and is entitled to
compensation for the work and costs incurred for the relevant notarial service. The notary
shall issue a receipt for all down payments, fees and reimbursements paid.13

In the provision of notarial services, in economical terms the notary is obliged to act in
the most appropriate manner towards the party, unless the party requires otherwise after
receiving advice from the notary.

The value of notarial fees is determined based on the value of the transaction of the
notarial act. However, there are exceptions, when the value of notary fees is determined
as a fixed amount by this administrative instruction, and this is in cases when the value of
the transaction can not be determined and in certain cases by time spent. The notary
services for transactions whose value is known or can be ascertained are subject to notary
fees that are in force at the time the action is taken by a notary. However, in certain cases
the notary has the right to determine the value of the transaction regardless of the value of
transaction submitted by the party, if this value of the transaction is inconsistent with
market value.

10. Conclusions

The notarial system in the Republic of Kosovo is in the consolidation phase, and with its
full consolidation we are expecting a restructuring of the justice system in general.

Currently in the Republic of Kosovo forty (40) notaries are licensed, who are carrying out
notarial services in their notarial offices. While during 2013 it is expected that a
considerable number of notaries will be licensed, in order to cover the whole country
with notaries. The development of notary in Kosovo is expected to take a dynamic
direction, especially due to the increase of commercial exchange. Through the legal

13
See Articles 4, 5 and 6 of the Administrative Instruction for temporary notary fees, no. 02/2012, which
entered into force on May 21, 2012.

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security it provides, the notary system provides the basis for the rule of law, economic
development, and security in contractual relations.

The notary in Kosovo is facing some challenges because of the specificity of justice,
because of the lack of a notary system until now, the gradual transfer of competences
from certain institutions, especially from courts to notaries, will affect the consolidation
and gradual development of the notary.

A notary with his work will give support to the development of justice in Kosovo in
general, and in particular the development of civil justice. Kosovo needs a notarial
system, and the profession of a notary corresponds to the needs of this society which
aspires legal security, but it is also a profession which responds to the aspirations of
modern democracy, where the main goal is integration into the European Union.

From now on, on 14th of April of each year Kosovo will mark the day of notary service in
the Republic of Kosovo.

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 LITERATURE

Begzati, Lirim, Our Notary, What can we learn from others? (Examples of Switzerland
and France), Tetovo, 2010.

Beka, Agron, Notary and Cadastre in Kosovo, Prishtina, 2009.

Blakaj Sefadin, Notary System in Kosovo - Principles and duties in the competence of a
Notary, Prishtina, 2012.

Blakaj Sefadin, Notary services in Kosovo, Prishtina, 2012.

Çuro Petraç, Civil Procedure Law & Notary, Tirana, 2000.

Dauti, Nerxhivane, Law of Obligations, Prishtina, 2009.

Dauti, Nerxhivane, CONTRACTS, Prishtina, 2012.

LEGISLATIVE ACTS

Law on Notary, no. 03/L-010.

Law no. 04/L-002, on amending and supplementing the Law on Notary no. 03/L-010.

Administrative Instruction for the notary exam, no. 07/2010, dated: 07.09.2010.

Administrative Instruction on keeping notarial books, registers and other lists, no. 4/2010,
dated: 07.09.2010.

Administrative Instruction on notary disciplinary proceedings, no. 6/2010, dated:

07.09.2010.

Administrative Instruction for provisional notary fees, no. 02/2012, dated: 21.05.2012.

Administrative Instruction on seals and identification marks of the notary office, no.
8/2012, dated: 07.09.2010.

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