THIRD SECTION
DECISION
Application no. 37898/05
Daniel BURLACU
against Romania
The European Court of Human Rights (Third Section), sitting on 29 May 2012 as a Committee composed of:
Egbert Myjer, President,
Luis López Guerra,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 10 October 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Daniel Burlacu, is a Romanian national who was born in 1974 and lives in Bucharest.
A. The circumstances of the case
1. On 28 January 2005 the applicant, a legal adviser (“consilier juridic”), lodged an application with the judge delegated to the Office of Trade Registry (“the OTR”) seeking registration in the Trade Register of a commercial company having as the object of its activity “judicial activities”.
2. By an interlocutory judgment delivered in private on 31 January 2005 the judge dismissed the request on the ground that the professional activity of a legal adviser could not be performed by a commercial company. The decision was based on the provisions of sections 2, 3 and 4 of Law no. 514/2003 concerning the organisation and functioning of the profession of legal adviser (“Law 514/2003”) according to which the professional activity of a legal adviser could only be carried out within the legal entity for which he worked as an employee, or within a public institution. He added that professional activity performed by a legal adviser could not be considered a commercial activity as defined by sections 3 and 4 of the Commercial Code.
3. The applicant lodged an appeal on points of law, citing the fact that the OTR had already registered many commercial companies set up by legal advisers to enable them to carry out their professional activity. In this respect he submitted a list of all the commercial companies already registered in Bucharest in the years 2004 and 2005 as well as a decision rendered by the Alba Iulia Court of Appeal, by which an appeal on points of law similar to his was allowed.
4. On 19 May 2005 the Bucharest Court of Appeal dismissed the appeal on points of law, upholding the interlocutory judgment on the same grounds. With respect to the applicant’s argument that many legal advisers performed their legal activity within registered commercial companies, the court argued that the precedent did not represent case‑law within the Romanian legal system.
B. Relevant domestic law and practice
1. Law 514/2003
5. The relevant provisions of Law no. 514/2003 read as follows:
Section 4
“A legal adviser...provides counsel and representation to the authority or public institution where he works, or for the legal entity with which he has working relations, protects their legitimate rights and interests in their relations with public authorities, any kind of institution, and any Romanian or foreign private person or legal entity, according to the law and to the specific regulations; he also approves and countersigns documents of a judicial nature.”
2. The decision of the High Court of Cassation and Justice of 12 June 2006
6. From 2004 onwards divergent case-law emerged across the country concerning the application of section 46 (1) of the Company Act (Law no. 31/1990), as republished and amended, with respect to requests submitted by legal advisers and lawyers for the setting up and registering of commercial companies having as the object of their activity consultancy services and legal assistance and representation.
7. In order to ensure the uniform interpretation and application of the law, the Prosecutor General applied to the High Court of Cassation and Justice, in accordance with the provisions of Article 329 of the Romanian Code of Civil Procedure.
8. In a judgment delivered on 12 June 2006, the High Court confirmed the existence of a divergence in the case-law concerning the interpretation of section 46 (1) of the Company Act. It held that applications for the setting up and registration of commercial companies having as the object of their activity consultancy, assistance and legal representation were inadmissible.
9. The High Court’s interpretation of the provisions in question became binding on all the domestic courts. However, it could not alter the outcome of cases already decided.
3. Other relevant domestic case-law
10. The applicant submitted copies of several final decisions rendered before June 2006 in which the domestic courts had accepted similar requests lodged by legal advisers for the setting up of commercial companies.
COMPLAINTS
11. The applicant complained under Article 6 § 1 of the Convention about inconsistency in the domestic case-law and that the substantive law had been wrongly applied. He also claimed that the judge delegated to the OTR had decided on his case in private without summoning him. He further contended that the length of the proceedings had been unreasonable, as the court needed four months to render its decision on the appeal on points of law lodged by him.
12. Relying on Article 11 of the Convention, he claimed that his right to freedom of association had been infringed due to the refusal of the Romanian authorities to register the commercial company he had intended to set up.
THE LAW
A. Article 6 § 1 of the Convention
13. The applicant complained under Article 6 of the Convention that the domestic courts had applied conflicting case-law to identical claims and they had decided his case wrongly. Article 6 of the Convention, in so far as relevant, read as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
14. The Court reiterates at the outset that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Brualla Gómez de la Torre v. Spain, 19 December 1997, § 31, Reports of Judgments and Decisions 1997-VIII; Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I; and Saez Maeso v. Spain, no. 77837/01, § 22, 9 November 2004). Its role is to verify whether the effects of such interpretation are compatible with the Convention (see Işyar v. Bulgaria, no. 391/03, § 48, 20 November 2008).
15. The Court has previously concluded that certain divergences in interpretation may be accepted as an inherent trait of any judicial system which, like the Romanian one, is based on a network of trial and appeal courts with authority over a certain territory. However, where there are divergences in the application of substantively similar legal provisions to persons in near identical groups, a problem with legal certainty does arise (see Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 59, ECHR 1999VII, and Ştefănică and Others v. Romania, no. 38155/02, § 37, 2 November 2010). According to its case-law, the principle of legal certainty is implied in the Convention and constitutes one of the basic elements of the rule of law (see Beian v. Romania (no. 1), no. 30658/05, § 39, ECHR 2007-XIII (extracts).
16. In Iordan Iordanov and Others v. Bulgaria (no. 23530/02, 2 July 2009), the Court identified the issues that need to be assessed when analysing whether conflicting decisions in similar cases violate the principle of legal certainty under Article 6 of the Convention: 1) the existence of “profound and long-lasting divergences” in the relevant case-law; 2) whether the domestic law provides for a mechanism capable of removing the judicial inconsistency; and 3) whether this mechanism was applied and, if so, what were the effects.
17. Turning to the present case, the Court notes that the applicant’s request for the setting up and registration of a commercial company to enable him to carry out his professional activity of legal adviser was dismissed by the Bucharest Court of Appeal on 19 May 2005, despite the fact that many similar requests were allowed during the same period. The existence of a divergence in the case-law concerning the interpretation of section 46 (1) of the Company Act is therefore not disputed. However, it cannot be argued that this divergence was “profound and long-lasting”. It must on the contrary be accepted that the divergences of approach that had arisen between courts were merely the inevitable outcome of the process of interpreting the provisions of a law which had been recently enacted (in 2003) and adapting them to the material situations they were intended to cover. These divergences may be tolerated when the domestic legal system is capable of accommodating them (see, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no 13279/05, §§ 86-87, 20 October 2011).
18. The Court notes in this respect that a year later, on 12 June 2006, an appeal in the interests of the law was granted by the Romanian High Court of Cassation and Justice, which laid down binding guidelines for a uniform interpretation of the disputed legal provisions. Therefore, it should be accepted that in a reasonably short period of time, the domestic legal system has put an end to the impugned divergence in the case-law (see, mutatis mutandis, Zelca and others v. Romania (dec), no. 65161/10). This is all the more true since the applicant has not mentioned or relied on any judgments delivered after 12 June 2006 that continued to depart from the solution adopted in the High Court’s ruling on the appeal in the interests of the law.
19. It should also be noted that the judgment concerning the applicant was duly reasoned, in terms of the facts and the law and the interpretation made by the Bucharest Court of Appeal of the facts submitted to it for examination cannot be said to have been arbitrary, unreasonable or capable of affecting the fairness of the proceedings. The Court notes in this respect that the correctness of the Bucharest Court of Appeal’s approach to the matter was acknowledged by the Romanian High Court of Cassation and Justice, which also gave an interpretation of the provisions in question which was unfavourable to the applicant.
20. Having regard to all of the above, the Court finds that there has been no breach of the very substance of the applicant’s right to a fair trial.
21. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Remaining complaints
22. The applicant also complained under Article 6 § 1 about the length of proceedings before the court of appeal and the lack of publicity of the proceedings before the judge delegated to OTR. He further raised a complaint under Article 11 of the Convention about the refusal of the domestic authorities to register his commercial company in the Trade Register.
23. The Court has examined these complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
24. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena TsirliEgbert Myjer
Deputy RegistrarPresident
Full & Egal Universal Law Academy