Information Note on the Court’s case-law No. 119
May 2009
Bigaeva v. Greece - 26713/05
Judgment 28.5.2009 [Section I]
Article 8
Article 8-1
Respect for private life
Imposition of nationality requirement on aspirant lawyer at final stage of admission procedure after completion of compulsory training: violation
Facts: The applicant, a Russian national living in Greece, where she had obtained various work permits, graduated in law from the Athens Law Faculty. In 2000 the applicant was admitted to pupillage by the Bar Council (the “Council”). According to a certificate issued by the Council in 2007, the applicant had been admitted to pupillage by mistake, it having been assumed that she was a Greek citizen as she had a Master’s degree from a Greek university. Under the Legal Practice Code, an eighteen-month pupillage was a prerequisite for admission to the Bar. After she had completed her pupillage, in 2002, the Council refused to allow the applicant to sit for the Bar examinations on the grounds that she was not a Greek national, as required by the Legal Practice Code. In 2005 the Supreme Administrative Court confirmed that the decision had been lawful.
Law: Applicability of Article 8: The applicant had settled legally in Greece at the age of twenty-three. She had learned the language and continued her undergraduate and postgraduate studies in law in that country. In that context, her subsequent choice to undertake the requisite pupillage with a view to sitting for the Bar examinations had been closely related to personal decisions that had been taken over a period of time and that had had repercussions on both her personal and professional life. The completion of the pupillage and the prospect of sitting for the examinations had thus been the culmination of a long personal and academic endeavour, reflecting her desire to integrate into the society of her host country while pursuing her career in line with her professional qualifications. The impugned restriction had thus had certain consequences for the applicant’s enjoyment of her right to respect for her private life within the meaning of Article 8. It was thus appropriate to dismiss the Government’s objection ratione materiae and to find that, in the circumstances of the case, Article 8 of the Convention was applicable.
Merits: The refusal to allow the applicant to sit for the Bar examinations had clearly constituted an interference with her right to respect for her private life. That interference had been provided for by law, namely by the Legal Practice Code, and had pursued the legitimate aim of preventing disorder, since its purpose was to regulate admission to the Bar, whose members helped to ensure the proper administration of justice. As to the necessity of such interference in a democratic society, the Council had initially allowed the applicant to undertake her pupillage, which she had completed with a view to admission to the Bar. The Council had thus, for all intents and purposes, given the applicant an expectation that she would be able to sit for the final examinations. By law, the completion of an eighteen-month pupillage was not an option left to the discretion of the person concerned but a prerequisite for subsequent participation in the Bar examinations. Accordingly, professional activity as a pupil was a mandatory stage to be completed in order for the pupil to go on to practise law in his or her own right. In the present case, the crux of the problem was the fact that the Council had overturned its initial decision to allow the applicant to undertake pupillage and had not ultimately authorised her to sit for the examinations in question. It had issued its refusal at the last stage of the process leading to the applicant’s admission to the Bar and the question of her nationality had been raised for the first time at that stage as an impediment that prevented her from taking the examinations organised by the Council. By doing so the Council had suddenly disrupted the applicant’s professional situation, after leading her to set aside eighteen months of her career in order to comply with the regulatory obligation to undertake pupillage. In view of the nature and purpose of the mandatory pupillage, as was apparent from the relevant domestic law, the applicant would have had no obvious reason to undertake pupillage if the Council had indicated its refusal at the outset. Admittedly, the Government had referred to a certificate issued in 2007 by the Council according to which the applicant had been admitted to pupillage by mistake. However, even supposing that the commencement of pupillage by the applicant had been the result of a mistake on the part of the Council, and that it was therefore not as if the Council had tacitly acknowledged her right to sit for the examinations despite her nationality, that hypothesis would not suffice to remove the damage caused to her professional life. The question whether the reason given to exclude the applicant from the Bar examinations, namely her nationality, was well-founded was thus not of primary importance in the present case. By contrast, the essential point was that the authorities had allowed the applicant to commence pupillage when it was clear that on completion she would not be entitled to sit for the Bar examinations. This conduct on the part of the competent authorities had thus shown a lack of consistency and respect towards the applicant personally and professionally and had thus constituted unlawful interference with her private life within the meaning of Article 8. Accordingly, the Court dismissed the Government’s objection that the applicant did not have victim status.
Conclusion: violation (four votes to three).
Article 8 in conjunction with Article 14 – The applicant had accused the State of excluding non-EU foreign nationals from access to the legal profession, in an arbitrary and discriminatory manner. Firstly, a difference in treatment did not normally fall under Article 14 if it related to access to a particular profession. The Convention did not guarantee the right to freedom of profession. Moreover, the Court agreed with the Government that, whilst the practice of law was an independent profession, it was nevertheless a service in the public interest. As a result it was therefore for the national authorities, which had a margin of appreciation in laying down the conditions for admission to the Bar, to decide whether Greek nationality or the nationality of an EU State would be a prerequisite. The relevant regulations, excluding nationals of third States from membership of the Bar, did not suffice in themselves to create a discriminatory distinction between the two categories of persons in question. It was not therefore for the Court to substitute its own assessment for that of the competent State authorities, which had decided on the basis of the Legal Practice Code not to allow the applicant to sit for the Bar examinations. In the absence of any arbitrariness, the Court could not call into question the reasons for which the national authorities had considered such choice to be based on an objective and reasonable justification.
Conclusion: no violation (unanimously).
Article 41 – EUR 7,000 for non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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