Notarial Secrecy as a Guarantee of Human Rights (According to the Law of Ukraine)

The article is dedicated to the issue of notarial secrecy, defining and establishing its peculiar features. Its high value is proved by the author. The author expressed her mind that violation of notarial secrecy could result in negative circumstances for a person, society, the state and a notary public.

Key words: notarial secrecy, notary public, features of notarial secrecy, professional secrecy, human rights.

A human life and health, honor and dignity, integrity and security are determined as the highest social values in the Constitutions of many countries all over the world. Protection of human rights and freedoms and their guarantees are determined as the direction of the state politics. These provisions are also contained in the Constitution of Ukraine [7].

Among the institutions of the human rights system we should distinguish a notary public office. According to Art.1(1) of the Law of Ukraine “On Notariat” [8], notariat in Ukraine is a system of agencies and officials, which are entrusted with the duty to certify rights and facts of legal significance, and to perform other notarial acts set forth by this Law, with a view to provide them into legal certainty.

A notary public is given a wide range of powers by legal acts. These powers include the right to define the measure of person’s legal capacity, to obtain on demand the necessary documents, to use private information of Registers of the Ministry of Justice of Ukraine etc.

There are public and private notaries in Ukraine. They have the same powers and legal status.

We must admit that a notary public performs very important functions, such as:

-         to certify rights, facts and documents (a notary public certifies transactions and contracts, powers of attorney, copies of documents, certificates of inheritance etc);

-         to confirm the will of a person (the document can be certified according to the will of the person who asked for it; if the person can’t understand the significance of his/her actions and control them, a notary public must refuse to perform any notarial acts);

-         to prevent judicial disputes (notaries perform notarial acts only if there are no disputes between the parties and if all the parties can understand the significance of their actions and control them, and if they can understand all the consequences of the transactions and documents being certified);

-         to explain person’s rights and responsibilities, and the consequences of transactions in order to prevent using legal illiteracy against the person etc.

One of the basic guarantees of human rights is notarial secrecy. Obviously, notarial secrecy is a very important component of notarial practice. Notarial practice cannot exist without it. Notarial secrecy creates relationship full of trust between a notary public and the client.

According to Art.8 of the Law of Ukraine “On Notariat”, a notary public and the staff of the notary public office must keep notarial secrecy even if their practice is limited to provision of legal aid or familiarization with documents, and even if the notarial act was not performed.

The duty to keep secrecy is also spread to the persons who knew about notarial acts because of performance of their official duties or other work, and to the persons who were invited to participate in performing notarial acts as witnesses, and to other persons who knew the subject of notarial secrecy.

A notary public cannot give any testimonies about the information which is the subject of notarial secrecy, except if it is asked by the person at the direction of whom or concerning to whom the notarial act was performed.

Just like any other secrecy, notarial secrecy can be characterized by such features as:

-         information must be known by a narrow circle of persons;

-         the person who is entrusted to keep this information must follow the rules of using thereof;

-         information cannot be disclosed (it means cannot go beyond the circle of certain persons);

-         violation of using this information may lead to negative consequences and bring the infringers to legal liability [5, 8].

Notarial secrecy is defined by the legislation of Ukraine. According to Art.8 of the Law of Ukraine “On Notariat”, notarial secrecy is a totality of information which was received during performance of a notarial act or during applying to a notary public, including information about a person, his/her property, personal property and non-property rights and obligations etc.

This definition must be explained in detail in order to understand the whole totality of information, which is the subject of notarial secrecy.

We think that the subject of notarial secrecy is the totality of the following information:

-         about the fact of applying to a notary public, the reason of such applying;

-         information stated in the documents which were given to a notary public for familiarization;

-         about the persons, who applied to a notary public, and other persons information about whom became known after applying, i.e. their personal data, information about their property, contracts signed by them, the existence or absence of any obligations of such persons;

-         the content of application and the content of advices given by a notary public;

-         about the fact of performing a notarial act or the reason of refusing to perform it;

-         about all the persons who were invited to participate in performing a notarial act, such as witnesses, persons who signed the document instead of the interested person, including information about the fact of their participation in performing the notarial act;

-         the register number of a notarial act, date and time of performing thereof;

-         all information received by a notary public during fulfillment of the notarial procedure, including electronic data;

-         information about the amount of notary public fees etc [3, 87 – 88].

So, we can see that notarial secrecy includes a lot of information about private life of a person, his/her property status and so on.

Notarial secrecy is professional secrecy of a notary public, and so violation thereof has a result of emergence some negative circumstances for reputation of the notary public, because this may reduce the level of trust to the notary public and to judicial authorities generally.

Professional secrecy is determined as such type of secrecies where the carrier of information is the person who has got the data during performance of his/her official duties [6, 13].

Normative legal regulation of confidential information, which became known to some persons during performance of his/her professional (official) duties, is focused by the legal framework of professional secrecy [6, 17].

Information can be classified as professional secrecy when it is characterized by the following features:

-         information was entrusted and became known to a person after performing his/her professional duties;

-         the person entrusted with information is not on the state and municipal service (otherwise such information is determined as service secrecy);

-         there is prohibition on spreading the entrusted information established by the law;

-         information is not related to the data which are the subject of state or commercial secrecy [1., 538].

We must admit that notarial secrecy is professional secrecy of a notary public only, because a notary public is the only person who is authorized to conduct notarial activity. So notarial activity is professional activity of a notary public.

Other persons authorized to perform some of notarial acts have their own professional activity, and so their authorities in notarial practice are limited. But such persons have to disclose notarial information under the law.

Obviously, violation of notarial secrecy happens when the information which was the subject thereof becomes known to third parties without any legal reasons.

P. P. Shliahtun pointed out correctly, that legal protection of secrecy was provided because spreading of information which was the subject thereof would have caused damage to a person, society and the state [4, 517].

There is no exhaustive list of the data which could be the subject of notarial secrecy. This is justified because we cannot describe all the human rights which could be exposed to negative effects of violation of notarial secrecy.

Furthermore, notarial secrecy can include some other secrecies which are secured by the law. For example, an inheritance case can contain information about bank accounts of the devisor (bank secrecy), his/her medical data (medical secrecy), information about his/her share in the authorized capital of certain companies and about commercial activity thereof (commercial secrecy). So, violation of notarial secrecy may result in simultaneous violation of several types of secrecies.

We think that public danger of violation of notarial secrecy lies in the fact that it can create negative consequences in the form of moral damage and property damage, and it can also cause harm to health and life of a person.

For example spreading information about the fact of conclusion of a contract of sale of real estate property (in particular, information about the sum of sale, date and place of conclusion of the contract etc.) can be the ground for committing a crime against property – robbery, burglary, armed assault on the person who received the money.

Taking the above into consideration, we can conclude that notarial secrecy is intended to protect private life of a person from different external interference, and it is also intended to protect other social values, such as property and even life and health, from criminal assaults. This is its social significance.

Nevertheless, sometimes insufficient attention is paid to this question practically. For example, in the judgment of the European Court of Human Rights in the case “Panteleyenko against Ukraine”, the questions of legality of rummage of a notarial office and seizure of notarial documents, stamps and metal safe were considered.

It was found out that during the seizure not only the needed documents and things had been removed by law enforcement agencies, but also all the documents, which had been kept in the office, and even some personal things, that had no relation to the case. But even so, the question of violation of notarial secrecy by those deeds was not arisen in any of national judicial proceedings and also at the European Court of Human Rights [2].

Summing up the above, we would like to admit the necessity of further research of definition of notarial secrecy and its contents.

Literature list

1.     Bachilo I. L., Lopatin V. N., Fiodorov M. A. Informational law: Textbook / Edited by academician of Russian Academy of Sciences B. N. Topornin. - St. Petersburg: Publishing house “Law Centre Press”, 2001. – 789 p.

2.     Judgement of the European Court of Human Rights in the case “Panteleyenko against Ukraine”, 29.06.2006, application # 11901/02.

3.     Korotiuk O. V. Scientific and practical commentary to the Law of Ukraine “On notariat”. The second edition, reworked and updated / O. V. Korotiuk. – Kyiv: OVK, 2013. – 776 p.

4.     Shliahtun P. P. Constitutional Law: Dictionary of terms. – Kyiv: “Lybid”, 2005. – 568 p.

5.     Shloma G. O. Administrative and legal support of service secrecy in internal affairs agencies of Ukraine: Autoabstract of dissertation of the candidate of legal sciences: 12.00.07 / Dnipropetrovsk state university of internal affairs. – Dnipropetrovsk, 2008. – 20 p.

6.     Stetsenko S. G. Medical Law of Ukraine (legal support of secrecy): Monograph / S. G. Stetsenko, I. V. Shatkovska. – Kyiv: Attika, 2010. – 144 p.

7.     The Constitution of Ukraine, 28.06.1996 // Uriadovy Courier, 1996, 07, 13.07.96 №129 – 130.

8.     The Law of Ukraine “On notariat” of 02.09.1993 №3425-XII // Holos Ukrainy, 1993, 10, 05.10.93 №188.