Notaries in Bosnia and Herzegovina should be neutral, professional and efficient, and as such, provide legal security to those who turn to them. However, when these principles are accidentally or intentionally violated, there are often dire consequences, suggesting that unconditional trust in notaries public can come at a huge cost.
Written by: Dejan Tovilović/Capital
Due to mistakes and omissions made by the notary Smiljka Đukić, Adnan Nazifović from Visoko was left without a home, and she was left without about one million KM, which she will have to compensate for the damage caused, the CAPITAL portal reveals.
Namely, Nazifović appeared in her notary's office in Kiseljak in February 2008, together with his wife and his employer Marinko Tuk, owner of the company “Blue-Star” from Kiseljak.
The company where Nazifović was the manager fell into financial problems, so Tuki needed money to keep it alive.
As he did not have strong enough security instruments for the loan, Nazifović met him and agreed to register a mortgage on his family house in Visoko for a loan of 100,000 KM to be raised by the company “Blue-Star”.
Mortgage for half a million for a loan of 100,000
They sign the contract on February 27, after which the mortgage is registered in the land register. The value of the house and land is estimated at 487,995 KM.
However, Tuka does not repay the loan and the company collapses. The bank that entrusted him with the money starts a procedure in which he asks for mortgaged properties and takes them, but not on the basis of a loan of 100,000 KM, but on the basis of three times the amount.
It turned out that the property of Nazifović and his wife was burdened with a loan of 300,000 KM, although they never agreed to it.
In the lawsuit they filed at the end of 2016, they claimed that Tuka and the notary Đukić deceived them and gave them something to sign that they would certainly not agree with.
Namely, the claim states that the notary placed and bound the page from the mortgage contract for the amount of 100,000 KM into the mortgage contract for the loan of 300,000 KM, which was obvious because the numbers of one were found on the pages of the new contract.
Although the lower courts rejected the lawsuit in part or in whole, considering it to be a procedural error, the Supreme Court of the Federation reversed the earlier judgments and annulled the disputed contract and ordered the notary to compensate for the damage, which with interest amounts to nearly one million KM.
It has been proven that she did not read the contract
Thus, the Supreme Court states in its verdict that the lower courts found that the notary did not read the disputed mortgage contract at all.
Instead, on the last, sixth page of the contract, she stated that “the parties declare that they are familiar with the contents of this contract as well as the attachments and waive the right to have them read to them, so they approve the contract and sign it by hand”.
This is completely contrary to the Law on Notaries, which does not provide that the participants can exempt the notary from reading the contract. More precisely, notary Đukić referred to a provision that does not exist in the Act.
“The original must be read to the parties in the presence of a notary, with direct questions the notary is convinced that the content corresponds to the will of the parties, after which the parties must approve and sign the original with their own hands. In it, it must be stated before the signature of the parties that this was done“, the verdict reads.
The court states that the notary is obliged to provide compensation for the damage he caused to others by violating his official duty, which according to their assessment was established in this case.
Notary avoids payment
The lawyer of the injured parties, Sanela Gorčić, tells CAPITAL that the legal battle in this process continues, because Đukić, in fear of losing her property, began to transfer it to her closest relatives.
“As soon as the Supreme Court passed its verdict, the notary began to transfer the property to her daughters, so now I am trying to refute the decisions on the transfer of the real estate. I reported the case to the competent authorities“, she said.
Smiljka Đukić did not want to discuss this topic.
“I would not like to comment, it is now at the Constitutional Court, I believe that any statement could affect the further course. In any case, thank you for your interest“, she said briefly.
Alagić: He got the money, he just hides it from his wife
Marinko Tuka referred us to his lawyer, Damir Alagić, who claims that the verdict is strange, to say the least, because the defendant was awarded more money than they asked for.
He also claims that Tuka has already paid off Nazifović.
“We filed a criminal complaint, because Nazifović is trying to settle twice. We have witnesses that Tuka paid him the money for the house, only he didn't tell his wife“, claims Alagić.
In the criminal report for fraud submitted to the Ministry of Internal Affairs of Central Bosnia Canton, it is claimed that Tuka gave Nazifović 130,000 KM for the house on several occasions and that Nazifović took money from the company's market on that basis.
However, as can be seen in the application, there is not a single document from which this could be concluded, so it is mainly based on the statements of witnesses.
Nazifović did not want to talk to the CAPITAL journalist about these accusations.
We were also interested in the opinion of the Chamber of Notaries of the Federation of Bosnia and Herzegovina regarding this case, as well as whether they will initiate some kind of proceedings against Đukić and hold her accountable. Although they promised to answer our questions, they did not.