The author of the exception argues that the provisions under criticism contravene to the constitutional provisions of art. 44 – Right to private property, art. 53 – Restriction of certain rights or freedoms and art. 148 – Integration into the European Union and the Treaty on legal assistance in civil, family and criminal law concluded with Hungary, ratified by Decree No. 505/1958 published in the Official Gazette No. 2 of 17 January 1959.
Examining the claim of unconstitutionality, the Court notes, as generally, that, regarding the land registration system of land books, in the jurisprudence it is held that, by adopting the Law on cadastre and real estate No. 7/1996, it has spread throughout the country and aims to defend the interests of real estate owners, but also of third parties, allowing easier identification of the buildings and thereby having the effect of opposability. The Land Book advertising based on a record system grounded in the real estate cadastre covers the general registration in the Land Book of legal acts and facts relating to immovable property.
Regarding the condition that the authentic deed issued by a notary public to be closed by a notary public based in Romania, the Court notes that by the Government Ordinance No. 66/1999, published in the Official Gazette of Romania, Part I, No. 408 of 26 August 1999, Romania acceded to the Convention on abolishing the requirement of over legalization for foreign public documents, adopted in Hague on 5 October 1961. According to art. 1 of the Hague Convention, its provisions apply to official documents which have been done on the territory of a Contracting State and are to be presented on the territory of another Contracting State. According to art. 1 paragraph 2 letter c) are considered official, under the Convention, also the “notarial deeds”.
The Court notes that, in matters concerning legal assistance in civil cases, Romania has concluded bilateral treaties with several countries, including Hungary, according to which the documents which have been done or certified by a state body or by a person within the territory of one of the contracting parties are valid in the territory of the other contracting party, without further certification. In this regard, according to art. 13 of the Bilateral Treaty signed with the Republic of Hungary on legal assistance in civil, family and criminal cases, ratified by Decree No. 505/1958: “The documents which have been drafted or certified by a state body or by an official person in the territory of one Contracting Party, within their competence, in the form established by the laws in force and provided with official seal, are valid on the territory of the other Contracting Party without further certification. This is valid also for the signatures that are certified according to the law of one Contracting Party. The deeds which are considered valid on the territory of a Contracting Party shall be also considered as valid deeds on the territory of the other Contracting Party”.
Given the mentioned issues, the Court notes that the criticized text of law, according to which “if the deed is authenticated by a notary public, it must be signed by a notary public based in Romania” imposes the condition that the notarial authentic deed to be signed by a notary based in Romania, unlike the previous regulation, which provided that the deed which is not drafted in Romanian must be accompanied by a certified translation. The Court finds that imposing the condition for an authentic document to be authenticated by a notary public based in Romania contravenes the obligation to exempt from over legalization the documents which are to be presented in Romania, obligation assumed by the Romanian state through the Convention on abolishing the requirement of over legalization for foreign official documents, obligation adopted by The Hague Convention on 5 October 1961. More so, the condition imposed by the criticized text of law also leads to failure to fulfill the obligation assumed by Romania through bilateral treaties on legal assistance in civil cases, in which the Romanian state has undertaken to respect the validity on its territory of the documents that have been done or certified by a state body or by a person within the territory of the other Party, without further certification.
In conclusion, the Court finds that the regulation contained in Law no. 133/2012, establishing the condition that the affidavit is to be signed by a notary public based in Romania, violates the obligations assumed by Romania through the treaties to which Romania is a party, which is contrary to the constitutional provisions of art. 11 paragraph (1) enshrining the obligation of the Romanian State to strictly respect and in good faith, its obligations as deriving from the treaties it is a party to.