Possibilities for convicts to perform notarial acts

To the Chairman of the Board of the Donetsk public historical-educational and human rights charitable organization “DONETSK MEMORIAL”, O. Bukalov.

The Department of Justice has considered your appeal regarding the provision of clarification on the issue of receiving notarial services and reports the following.
The issue of the procedure for performing notarial acts by notaries is regulated by the Law of Ukraine “On Notaries” and the Instruction on the procedure for performing notarial acts by notaries of Ukraine, approved by Order of the Ministry of Justice of Ukraine dated 03.03.2004 No. 20/5 (as amended and supplemented).
Regarding whether a person serving a sentence in a place of confinement can receive notarial services, we clarify that according to Art. 13-1, 41 of the Law of Ukraine “On Notaries” and Clause 11 of the Instruction, notarial acts are performed on the premises of a state notarial office or on the premises that serve as the workplace of a private notary. In certain cases, when a citizen cannot appear at the specified premises, as well as when the specifics of the transaction to be certified require it, notarial acts may be performed outside the indicated premises, but within the notarial district.
A notarial district is a territorial unit within which a notary carries out notarial activity and within which a state notarial office, where a state notary works, or the workplace (office) of a private notary is located. A notary does not have the right to carry out notarial activity outside their notarial district, except for substituting for other notaries in cases provided for by this Law.
Regarding whether a person serving a sentence in a place of confinement can receive notarial services in the absence of funds and what the conditions for providing free services are, we clarify that in accordance with the requirements of Art. 42 of the Law of Ukraine “On Notaries”, notarial acts are performed after their payment, as well as, in cases provided for by law, after payment of the personal income tax to the budget and on the day of submission of all necessary documents.
According to Art. 31 of the Law of Ukraine “On Notaries”, private notaries charge a fee for performing notarial acts, the amount of which is determined by agreement between the notary and the citizen.
State notaries charge a state duty for performing notarial acts in amounts established by current legislation (Art. 19 of the Law of Ukraine “On Notaries”).
In accordance with clauses 9, 14, 16, 17, 18, 45 of Article 4 of the Decree of the Cabinet of Ministers of Ukraine dated 21.01.1993 No. 7-93 “On State Duty” (as amended), the following are exempt from payment of state duty for performing certain notarial acts:
9) citizens – for the issuance or certification of the accuracy of copies of documents required for the appointment and receipt of state aid and pensions, as well as in guardianship and adoption matters;
14) citizens – for the certification of their wills and gift agreements of property in favour of the state, as well as in favour of state enterprises, institutions, and organizations;
16) citizens – for the issuance of certificates of the right to inheritance:
- to the property of persons who died while defending the USSR and Ukraine, in connection with the performance of other state or public duties, or with the performance of the duty of a citizen to save human lives, protect public order and fight crime, protect the property of citizens or collective or state property, as well as persons who died or passed away as a result of illness associated with the Chernobyl catastrophe;
- to the property of persons rehabilitated in the prescribed manner;
- to a residential house, a share in a housing-cooperative, or an apartment that belonged to the testator by right of private ownership, if they lived in this house or apartment for six months from the date of the testator’s death;
- to residential houses in rural areas, provided that these citizens will permanently reside in these houses and work in rural areas;
- to deposits in Savings Bank institutions and other credit institutions, to insurance amounts under personal and property insurance contracts, state loan bonds and other securities, salary amounts, copyright, amounts of author’s royalties and remuneration for discoveries, inventions, useful models, industrial designs, topographies of integrated circuits, plant varieties, and rationalization proposals;
- to the property of persons of a farm enterprise, if they are members of this enterprise;
18) citizens classified as first and second category victims of the Chernobyl catastrophe:
- citizens classified as third category victims of the Chernobyl catastrophe who permanently reside before resettlement or self-resettlement, or permanently work in the territory of the zones of alienation, unconditional (mandatory) and guaranteed voluntary resettlement, provided that as of 1 January 1993, they lived or worked in the zone of unconditional (mandatory) resettlement for at least two years, and in the zone of guaranteed voluntary resettlement for at least three years;
- citizens classified as category 4 victims of the Chernobyl catastrophe who permanently work and reside or permanently reside in the territory of the zone of enhanced radioecological control, provided that as of 1 January 1993, they lived or worked in this zone for at least four years;
- invalids of the Great Patriotic War and families of soldiers (partisans) who died or went missing, and persons equated to them in the prescribed manner; invalids of group I and II;
45) citizens, owners of land shares (stakes), to whom land plots were allocated in kind (on the ground), for the certification of land exchange contracts.
Regarding whether a notary can refuse to provide notarial services if they must visit a penal institution to provide them, we clarify that in accordance with the requirements of Art. 49 of the Law of Ukraine “On Notaries”, a notary is prohibited from unreasonably refusing to perform a notarial act.
A notary or an official performing notarial acts shall refuse to perform a notarial act if:
1) the performance of such an act contradicts the legislation of Ukraine;
2) the information and documents necessary for the performance of the notarial act have not been submitted;
3) the act is subject to performance by another notary or an official performing notarial acts;
4) there are doubts that the natural person who applied for the performance of the notarial act understands the meaning, content, and legal consequences of this act, or that this person is acting under the influence of violence;
5) a person who has been recognised as incapacitated in the prescribed manner, or an authorised representative who lacks the necessary powers, has applied for the performance of the notarial act;
6) the transaction being concluded on behalf of a legal entity contradicts the goals specified in their charter or regulation, or goes beyond the scope of their activities;
7) the person who applied for the performance of the notarial act has not paid for its performance;
8) the person who applied for the performance of the notarial act has not paid the payments established by legislation related to its performance;
9) in other cases provided for by this Law.
At the request of the person who was refused the performance of a notarial act, the notary or the official performing notarial acts is obliged to state the reasons for the refusal in writing and explain the procedure for appealing it. The notary issues a corresponding resolution regarding the refusal to perform a notarial act within three working days.
Separately, we note that in accordance with Art. 245, 1252 of the Civil Code of Ukraine, a power of attorney or a will of a person who is in a place of confinement may be certified by the head of the place of confinement.
In accordance with Art. 40 of the Law of Ukraine “On Notaries”, wills and powers of attorney of persons held in penal institutions, certified by the heads of such institutions, are equated to notarised ones.
At the same time, we inform you that letters from the Main Department of Justice are not regulatory legal acts; they have only an explanatory, informational character and do not establish legal norms.
Head of the Main
Department of Justice, V. Ya. Karmazin
Tymtsunyk O. V., 374-24-05