The notary was blamed for having performed 84 notarial tasks related to improvement contracts at the premises of its client (development company) during 15 trips over 3 years (2020-2022). The court in Wrocław found her guilty and fined PLN 35 thousand. After the appeal was lodged by the guilty ultimate Disciplinary Court at the KRN, it reduced this amount to 7,000. But then the cassation was brought by a disciplinary spokesman. He referred to the gross disproportionateity (mildness) of the punishment at the second instance.
The case afraid the alleged notarial tourism, i.e. the performance of the reet activities at the customer's premises. As indicated at the cassation proceeding by the disciplinary spokesperson of the National Notary Council Waldemar Chwialkowski, this is 1 of the most crucial problems faced by the regional government. It concerns all chambers, but especially the largest cities. It is precisely that notaries serving improvement companies execute activities at their office alternatively than in their law firm, which is frequently located in another city. In this way, they deprive local notaries of their ability to earn.
Article 3 of the notarial law provides that a registrant performs activities in his law firm unless he ‘proclaims the nature of the activities or peculiar circumstances’. However, as the disciplinary spokesperson pointed out, notaries are doing this for financial reasons, as there has been a crucial increase in the number of law firms in fresh years and thus greater competition. However, specified conduct violates the principles of loyalty to another members of the self-government and frequently puts them even before the existential threat to the existence of the law firm. At the same time, rejekts engaged in specified a ‘tourism’ effort to justify it, indicating these ‘special circumstances’.
– This case is the tip of the iceberg – concluded the disciplinary spokesman, supporting the repeal of the Second Instance judgement and the transfer of the case for re-examination.
On the another hand, the suspect claimed that the cassation be dismissed as manifestly unfounded. He pointed out that in this case there were indeed extraordinary circumstances, as all trips took place during the Covid-19 epidemic, erstwhile the notarial self-government was considering the introduction of distant activities. There were not many trips, due to the fact that 15 in 3 years. The defence besides pointed out that it was clear from the jurisprudence of the ultimate Court that even in cases where the number of specified activities outside the law was respective hundred, the punishment of reproof or reprimand was considered sufficient, alternatively than a punishment of money.
Ultimately, the court-appointed punishment, according to the defender, exceeded the maximum possible limit of PLN 34 thousand. Therefore, the charges of cassation showing that the appeal court, on the 1 hand, took the incorrect view that the punishment was grossly advanced and, on the another hand, imposed a grossly mild penalty, were unsuccessful.
The ultimate Court accepted this explanation by dismissing the complaint. He did not take into account the plea concerning alleged deficiencies in the justification for the judgement of the appeal court, which was not adequate to indicate the reasons for the simplification to PLN 7 000. However, according to SN, the court of the second instance did not establish any fresh circumstances. He focused only on the punishment dimension in which he had considerable discretion. In this situation, the punishment imposed by the WSD cannot be considered to be abnormally mild.
The rapporteur, Marek Siwek, stated that possibly the punishment for specified actions should be higher, but this would require a change of law. If the legislator had foreseen a maximum punishment of PLN 70 or 80 thousand, then in fact 7 1000 could be considered grossly disproportionate.
File number: II ZK 55/24
