Information Note on the Court’s case-law 68
October 2004
Bota v. Romania (dec.) - 24057/03
Decision 12.10.2004 [Section II]
Article 11
Article 11-1
Freedom of association
Judicial dissolution of an association on account of illicit activities: inadmissible
The applicant was chairperson of an association which described itself as charitable in nature. After being legally registered in Romania, this association decided to set up the Romanian Constitutional Bar Association. However, the domestic legislation prohibited the creation of bar associations and exercise of the profession of lawyer independently of the “Union of Romanian Lawyers”. A county bar association brought an action before the courts opposing the association’s decision. The domestic courts found that, in taking the contested decision, the association had placed itself outside the statutory framework for the exercise of the profession of lawyer and that its activity was consequently unlawful. In application of the regulations governing this area, the courts ordered the association’s dissolution and the opening of compulsory liquidation proceedings against it. At the close of those proceedings, the association’s remaining assets were to be transferred to other legal entities.
Inadmissible under Article 11: (a) The interference in its members’ right to freedom of association represented by the association’s judicial dissolution was provided for in national regulations. Justified by the domestic courts with reference to the importance of the lawyer’s role and the need to preserve the quality of legal assistance, the interference pursued legitimate aims within the meaning of the Convention, namely the protection of public order and of the rights and freedoms of others. With regard to the necessity of the interference in a democratic society, the Court noted that the association’s statutory objectives included “the creation of bar associations”, which was contrary to national statutory provisions prohibiting the creation of bar associations and exercise of the profession of lawyer independently of the Union of Romanian Lawyers. In particular, the members of the association had carried out specific actions, namely the setting up of a bar association, and had usurped prerogatives that belonged exclusively to the Union of Romanian Lawyers: manifestly ill-founded.
(b) Applicability of Article 11: Article 11 did not apply to professional organisations, which were public-law institutions governed by the law and which pursued aims serving the public good. The Union of Romanian Lawyers, which met those criteria, was not therefore an “association” within the meaning of Article 11. Accordingly, the complaint that the obligation of belonging to that Union infringed the applicant’s negative freedom of association was incompatible ratione materiae.
Article 1 of Protocol No. 1: The applicant complained of the decision ordering the transfer of the association’s assets to other legal entities after its dissolution. However, an order to forfeit items whose use has lawfully been adjudged illicit by the domestic courts did not constitute a violation of Article 1 of Protocol No. 1. In any event, the criticised measure was merely a secondary effect of the dissolution which, as the Court had found, did not violate Article 11. The Court held that there was no need to examine this complaint separately.
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This summary by the Registry does not bind the Court.
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