The Senate is preparing a draft amendment to the Law on Notaries Public aimed at eliminating abuses on the part of parties to notarial actions and notaries themselves. The problem was noticed in the case of abuses related to the granting of loans to helpless, intimidated and elderly individuals which were secured by a property transferred to the lending party as part of the transfer of title to secure loan repayment.
In order to achieve the above objective the legislator proposes a solution in the form of introducing an obligation of notarial action recording. The record of a notarial action is to be signed by a notary public with the use of an e-signature which guarantees identification of the notary public and any subsequent changes made to the record. Audio-visual records of notarial actions are to be stored for 10 years and destroyed afterwards.
At a previous session of the Senate Commission for Human Rights, Law and Order and Petitions the Vice-Minister of Justice pointed out that recording of notarial actions was a good initiative, but a list of actions subject to obligatory recording needed to be created. He indicated that recording should be mandatory in the case of:
The beginning and end of the recording also has to be specified. The minister explained that the recording will be an important piece of evidence in the course of court and preparatory proceedings and will make it no longer necessary for the parties to incur additional costs for proving facts proven with audio-visual records. Contrary to the Minister’s position, senate commissions are currently working on amendments introducing a general rule that all notarial deeds will be recorded, except for certificates of inheritance and technical actions.
The issue of the amendment was addressed by the President of the Personal Data Protection Office who stated that the drafted amendment needs to be re-considered, since its implementation will involve significant interference in the privacy of not only parties to notarial actions, but also their participants, and will result in restriction of liberty of those individuals. The President of the Personal Data Protection Office also has doubts whether video recording really justifies the objectives specified by the authors of the draft, or other less invasive methods may be introduced to ensure proper course of notarial actions. Moreover, the President of the Personal Data Protection Office indicated that the proposed solutions have not be evaluated from the perspective of consequences of their introduction for data protection, namely tested for proportionality of restrictions to the rights of individuals in the light of the rules arising from the GDPR.
Potential consequences of notarial action recording
The amendment, apart from greater interference in the privacy of the parties to a notarial action, may also, in practice, lead to a decrease in significance of a notarial action, as it will be possible to question it based on a record showing its course. According to Prof. Janusz Jankowski, Ph.D. and Prof. Sławomir Cieślak from the Faculty of Law of the Łódź University, the new regulation will breach the grounds for the notarial secret. They both emphasize that this is not analogous to recording of judicial acts as part of the Code of Civil Procedure.
The amendment is also opposed by Lech Borzemski – a member of the Polish National Council of Notaries. He points out that the amendment will violate Article 17 of the Constitution which states that it is the self-government that takes care of proper execution of profession and the proposed regulations interfere with freedom of execution of profession. In his opinion, recording of notarial actions will result in the loss of trust in the profession.
Currently, senate commissions are still working on the draft. It is definitely worth being observed on an ongoing basis due to the impact it will have on legal transactions.
It has to be noted that it is not the first revolutionary change affecting notaries in the recent years. On 9 April 2018 the Central Repository of Electronic Copies of Notarial Deeds was created (hereinafter: ”Central Repository”).
The Central Repository includes stored electronic copies of notarial deeds including data which constitute the basis for entry in the register of businesses of the National Court Register or are to be included in the registry files of the entity entered in the register of businesses of the National Court Register.
Notaries are obliged to immediately place electronic copies of notarial deeds which due to their content are to be filed to the register of businesses of the National Court Register in the Central Repository. The notarial deeds placed there are available to registry courts. After a copy of or an extract from a notarial deed has been placed in the Repository, a notice is generated with the number under which the document was registered as well as the date and time of registration. The notary gives one copy of this notice to the party to the notarial action and submits the other one with the original of the notarial deed.
This is related to changes in the registration procedure. Currently, enclosures to the submitted applications to the National Court Register are filed in hard copy. However, according to the current provisions of the Act on the National Court Register, already since 1 March 2021 the applicant, when filing the application in the registration procedure, will not be obliged to present the original of the notarial deed constituting the basis for entry, but only provide the number of the copy or extract in the Central Repository.
Pursuant to Article 19d clause 2, after registration of the application the document whose number was provided by the applicant will be automatically sent via the ICT system from the Central Repository and included in the Repository. Thus, starting from 1 March 2021 the registration procedure will be subject to complete electronisation and registry files will be kept in the ICT system only.