Notaries searched for conveyor, but algorithm not break ranks. 47news, 12 March 2019
Notaries searched for conveyor, but algorithm not break ranks. 47news, 12 March 2019
Three notaries have been searched in Petersburg. Three people from the Fund of Social Protection of Pensioners re-registered a hundred flats owned by elderly people through these notaries. Their colleagues didn't find anything suspicious in it – at least these people were not terrorists. The 47news made several phone calls to Petersburg notarial offices in order to find out their opinion of their colleagues' actions. The most frequent answer was: "Read clause 5 of the RF Legislation on Notariat". So, we had to read the clause. It is said there about impartiality and independence in activity, and guide lining of the Constitution, and also that information about notarial actions can be given at the request of a court, Public Prosecutor's Office, investigatory bodies.
Meanwhile, 12 March the Investigatory Committee of Petersburg visited a dozen of places in the city. Searches took place in the commercial CLL "Fund of Social Protection of Pensioners" in Moscow avenue, "The Number 1 House for War and Labour Veterans" in Pavlovsk which is within jurisdiction of the Smolny Committee on Social Policy, and also in three Petersburg notarial offices.
Participants of the market told the 47news that journalists are the ones who always worry. Nevertheless, the morning turmoil was a result of recordings in the Russian Register. Basic knowledge of the probability theory and mathematical statistics would be quite enough here. More than half a hundred dwellers of the Pavlovsk House of Veterans with one accord sold their flats to three natural persons. At present the heads of the Fund have 191 flats in their possession. And each of those who went to the care of the state into a five-storied beige building by the Pavlovsk Park got up to 300 thousand roubles in cash.
Petersburg notaries Burchalkin, Rozova and Garin are known to the 47news. We are interested in the conveyor-like re-registration of flats owned by single pensioners,
escorted by the same people.
We narrated this story to notary of the Moscow Notarial Chamber Zinaida Nisht. She says that, indeed, a philistine may see a double bottom, complicity in the notaries' actions. It is convenient, but professional community will regard these actions of the colleagues as correct. If similar bargains happen in succession, it does not mean that a notary must sound the alarm. A lot of lawyers have regular clients, among realtors dealing with real estate, as well. And regular clients are distinguished by reliability. They don't make their lawyers prick up their ears so often, as it happens when a person comes from nowhere.
– Since 2013 a notary can make a request to the Russian Register while registering real estate, in order to find out whether a person has been found incapable by court. But in the office a client's speech and behaviour exclusively are taken into consideration. If I ask questions, but a person only nods, or even keeps silence, I won't strike a deal. Speech is something that makes you understand whether a person gives themselves an account of their actions. If it is a gift contract – screw your eye, explain the consequences. If it is a sales one – settle the price. Meanwhile, everything depends on a particular case.
Head of the Notarial Department of the Russian Academy of Advocacy and Notariate, Honoured Lawyer of Russia Vasily Ralko agrees with his colleague.
- We are obliged to request the Russian Register whether a participant of a bargain is capable since 2019, but the Register may not answer. Then I decide whether a person is adequate, or not. Certainly, I examine their passport, see if this person has reached their majority, ask where and what the person leaves on. Questionnaire. Is the person ready to make a deal? Is he/she aware of the consequences? I also pay attention to the clarity of speech. And there are even more questions to the buyer, and not to the one who sells. A visit of a familiar person to a notary's office is not an extraordinary event. A lot of people pay annual visits with the same rent contracts. I.e., people know what to expect. And one can challenge a bargain in court.
The 47news learnt from the expert that a notary is not obliged to report to the competent services about their suspicions. The correspondent got an impression from the conversation that this profession is a kind of a machine or function working in accordance with a certain algorithm.
– A client came to me. He had a flat in the centre of Moscow. He said: "l began to receive calls by telephone and entry phone. They demand nothing, just say nothing. I don't need this flat, just want to get rid of it". What are you supposed to do in that situation? There were public commissions in the time of mayor Luzhkov, and they could block a bargain. A 96-year-old pensioner wanted to sell a flat. The public said: "Not allowed". But this elderly person was still playing on the stage in the theatre in his 96. So, it's easy to make a notary responsible. If a person considers themselves deceived, he/she can appeal to the court to invalidate the bargain. There are adversarial procedures. Thus, the one has to prove that he/she was deceived and paid ten thousands instead of the promised one billion, – continued Nisht.
Pen & Paper partner and advocate Maria Nikolayeva also thinks that a notary has no duty to signal to the law-enforcement if there is a suspicion of an unfair bargain. But there are some exceptions. They include informing about financial operations which may be carried out to legalize criminal revenues, or to support terrorism. Moreover, it should be taken into consideration that a notary must keep in secret information that became known to them due to their professional activity, and only the court can make them free from that duty if there is a criminal suitcase against a notary in connection with carrying out a corresponding notarial action.
But, as Pen & Paper points out, the very fact that similar bargains were struck in a situation like that does not prove their unlawfulness. If a bargain itself complies with the law, and both parties realize the significance of commitments they make, and consequences that follow, and their free will is aimed at happening such consequences, a notary cannot refuse to execute a notarial action.
– The law provides liability for the damage caused by violation of the law by a notary in carrying out their activities, and also a disciplinary responsibility, including depravation of the status of the notary public. But, if the fact, that a notary acted in collusion with a criminal in order to commit a crime of fraud, is established, formal compliance with the law won't help the notary to escape from the criminal responsibility, – told the 47news Maria Nikolayeva.
Members of the Saint-Petersburg Notarial Chamber preferred not to make express commentaries on the plea of having not enough proved facts. But, they didn't exclude taking measures if it were proved that notaries hadn't acted in accordance with the law.
The LLC "Fund of Social Protection of Pensioners" ideologist Aleksey Fomin detained 12 March, is a former co-owner of eight companies bearing the same name. His FSPPs are registered in Tver, Moscow, Rostov-upon-Don, Samara, Krasnoyarsk, Voronezh, Nizhny Novgorod, Perm. There, as in Petersburg, thematic advertisements about difficulties in lives of single pensioners, and those who were ready to offer a helping hand, were also broadcasted.
Alexander Kalinin,
47news