The notary acts completely independently of instructions, says Michael Umfahrer, President of the Austrian Chamber of Notaries, in an interview with the “Wiener Zeitung”: If, for example, a person who wants to commit suicide with the for the death warrant necessary confirmations from two doctors that he is capable of making decisions, the notary can still refuse to set it up. The notary would be the next step towards participation in suicide, which has been permitted in Austria since January 1 of this year. According to the driver, inquiries about this are manageable. The Covid-19 pandemic and the lockdowns have also had a lasting impact on notaries’ everyday work. An amendment to the law for the increased use of electronic notarial official acts will come into force on July 1st.
“Vienna Newspaper”: Mr. Umfahrer, while it was initially the doctors who presented the first hurdle to participation in the suicide, it could now be the notaries as a further essential link: Is there a specific list of all those who would draw up a death will?
Michael Umfahrer:In every regional chamber we have a pool of colleagues who definitely do it. It certainly doesn’t fail because of that, the contacts can be found out on request. If you want to draw up a will, you will find a notary to support you. The decisive factor here is that we have also made it clear within the profession that this is a very stressful job that must be taken seriously. That is why we recommend that only experienced colleagues do this and that it is not done by someone who has just entered the profession. But there were only a few inquiries.
As President of the Chamber of Notaries, how do you feel about this?
Medical responsibility is a very, very difficult one. In our area, however, the question is also whether we can ensure freedom of will. So the point is that someone who is under massive pressure or who is being blackmailed does not receive a death warrant. In case of doubt, the activity must be rejected. If you have the feeling that something is wrong, you have to say: “I won’t do that.” That takes an awful lot of experience.
Are the notaries networked? Or can you, if one refuses the activity, go to the next and the one after that until it works?
It’s a question of professional confidentiality, it won’t be that easy. But apart from euthanasia: We already have a lot of practical experience with people who trundle from notary to notary because they want to do something where we have the feeling that something is wrong. That is why it takes careful information gathering and analysis, you have to examine the environment and, if necessary, have the appropriate expert opinions drawn up by doctors about the legal capacity, so that this is then, above all, secured and confirmed afterwards.
Is there a psychological point of contact for notaries who are psychologically stressed, for example, by drawing up death wills?
The Chamber has not yet made any arrangements in this regard. But if it turns out that there is a bigger problem here, we will definitely do something.
How intensively is the digital notarial deed actually used?
The Covid-19 pandemic and the lockdowns have played a significant role – during the lockdowns, the digital notarial file was of course used more. In 2020, the possibility of digital authentication and certification by the notary was incorporated into permanent law. Everything has advantages and disadvantages, and I think the really good thing is the combination. On the one hand, the pandemic has caused a boost in digitization because it was not possible to appear in person, but on the other hand we have also experienced the limits of video conferences: Sensitive areas, such as negotiations in family and inheritance law in particular, but also difficult contract negotiations in other areas, require the ” face-to-face” contact in order to recognize emotions and to be able to react to them appropriately. We are now able to use online certification where it makes sense, but seek direct contact when it is essential.
“An electronically signed certificate will soon no longer be just a scrap of paper.”
Where is the current solution to the problem of media breaks – that is, that a document must be drawn up either purely analogue or digitally and signed by everyone in this form in order to remain valid?
An amendment to the law that regulates this (among other things, the notarial regulations were Professional Law Amendment Act 2022 revised, note), comes into force on July 1st! We as notaries can then convert the deeds via our deed archive. That means: If someone has signed electronically, but the next one would like to sign on paper, then we can convert this document into a paper document – again as an original. This is no longer just a scrap of paper, but the next person can also sign it. We will definitely live for a few more decades in this parallel world in which electronic and paper documents exist side by side.
At the level of the European Union, a new money laundering regulation is getting closer and closer. For example, an EU authority to combat money laundering and terrorist financing is to be set up. Notaries can prevent money laundering-prone processes from being completed. How far is Austria on this topic?
We have already started to set up corresponding systems in our Austrian notary’s office. Compliance with money laundering obligations is continuously checked as part of the audits of the law firm, but we are also currently preparing a central coordination office: A control body that is intended to ensure that our state chambers implement the rules laid down by the central EU money laundering authority – which is to be set up again – within the framework of professional supervision be able. Data on the activities of colleagues are collected and evaluated. However, the legal implementation is still missing, the green parliamentary club would like to wait for the EU regulation. Money laundering is generally a big problem. Especially now, during the war in Ukraine – the notary has to question whether those behind the deal are on any sanctions lists, for example.
Regarding control at a completely different point in our constitutional state: What is your position on the demand for an independent federal prosecutor at the end of the chain of command, where the Minister of Justice currently stands?
We currently have a system in which the chain of instructions from public prosecutors ends with the minister, but she in turn is responsible to parliament – and thus has democratically legitimized control. This is what is needed, and if it is not possible to put a proposal on the table that is better than the current system, then we should rather stick to the current one. In addition, the problems that are now popping up could be more related to the reform of the pre-trial procedure in criminal proceedings in 2008: since then there have been no longer any investigating magistrates and the preliminary investigation has been pushed to the prosecutors. For me, certain problems can be explained by this system change.